Abortion law in this jurisdiction remains settled. It is still the case for all abortions that the requirement for certification by two doctors means that the medical profession remains the ‘gatekeeper’ of a woman’s ‘free choice’. Abortion has not attracted the sustained legal challenge or political centre stage that the equivalent jurisprudence has in the United States. The key battleground for abortion campaigners has been, and will remain, the time limit for ‘social’ abortions. The time limit was lowered from 28 weeks to 24 weeks in 1990 and attempts at further reduction in 2008 failed. A reason for this failure was that, despite significant advances in neonatal technology in the 1980s, since 1990 the threshold of viability has not been reduced appreciably. By the same token, any significant advances in the threshold of viability will spark renewed calls for a reduction in the 24-week limit. The second area of dispute is ‘late term’ abortions which can technically be performed just minutes before birth and – as the petitioner in the US case of Gonzales v Carhart argued – sometimes by necessarily barbaric procedures. It should be noted, however, that late abortions are only available in extremis and are very rare: of the 184,571 abortions performed in 2014 in England and Wales, 80% were at under ten weeks’ gestation, 92% were carried out at under 13 weeks’ gestation and only 0.067% (124) were performed at 24 weeks and over.
Important considerations for the court
- Statutory position:
– The views of any treating doctors and in particular their opinion about the existence of grounds for a termination under the Abortion Act 1967 and whether such a procedure was appropriate for the patient.
– The basis on which it is asserted that the patient lacks the ability to weigh treatment information in the balance. For example, the mere fact that a patient is unwilling to discuss the pregnancy with psychiatric staff and is frightened cannot of itself be sufficient to show lack of capacity for this particular decision.
– The information which has been put to the patient about the advantages and disadvantages of pregnancy/termination and her response to it.
– Whether the possibility of foetal abnormality has been put to the patient and, if so, the manner in which this was done and her response.
– The patient’s comprehension:
that she is carrying a foetus which is likely to be born alive if there is no termination;
o that she will not have this baby if she has a termination of pregnancy;
o of the general nature of the procedure to be performed;
o of the general nature of the risks involved in having a termination or continuing with the pregnancy;
o of the nature and extent of the physical and emotional stress associated with childbirth;
o of the risk (if relevant) of her child being physically or mentally impaired.
– Evidence from a speech and language therapist may assist where there are issues concerning the patient’s ability to comprehend. His view on the patient’s understanding of everyday vocabulary and complex adult language may assist. A view as to her ability to understand is crucial to a determination under s 2 of the MCA.
- Best interests:
– The ability of the patient to care for the baby after the birth, with or without support.
– The availability of such support, if it is needed.
– The likelihood of the baby being taken into care immediately after birth and the impact this would have on the patient.
– The risk of the baby being born disabled.
– Any difficulties foreseen in getting the patient to hospital, and persuading her to stay there.
– If the patient is undergoing other forms of treatment, the impact the termination will have on her relationship with her treating physicians and the risk of permanent damage to this relationship.
– The likely difference between termination and continuing to full term on the patient’s future (1) mental state; and (2) relationship with therapeutic staff.
– The physical risks of the patient continuing with the pregnancy, as assessed by the gynaecology team.
– If the patient is young, the attitude of her parents or close family to the pregnancy (and if there is no one in this category, an IMCA should be instructed).
– If the patient is attending a school or college the views of any tutor with detailed knowledge of her abilities, personality and needs.
– If the patient is likely to abscond, the available supervision options.
– The nature of the relationship with the father of the unborn child, and, where this is continuing, his attitude to the pregnancy, and likely impact of a termination on the relationship.
– The maturity of the pregnancy and any associated urgency.
– Vitally, the wishes of the patient in relation to continuation of the pregnancy.
In the authors’ experience, courts faced with an application for an order that an abortion is in a woman’s immediate best interests have also required the parties to address more wide-ranging questions about how she became pregnant in the first place and what steps have been put in place to avoid similar situations recurring. Those representing parties at such applications should be fully prepared to deal with the broader questions of the woman’s ongoing capacity and best interests in relation to her sexual and reproductive health.
If an application is being considered, the Official Solicitor should be informed of the case immediately. If there are issues concerning what would happen to the baby after delivery it would be important to consider adding Social Services as a party. In any event, reports should be obtained from the relevant care manager if the local authority responsible for social services have been involved. In addition to input from any material family or friends, evidence should also be sought from any general practitioner, obstetrician or community nurse involved in the patient’s care.
Where a patient does not resist the procedure it is suggested that a declaration should include the following terms:
‘UPON it being emphasised that the permissive declaration (below) does not detract from the duties imposed on treating clinicians by section 1 of the Abortion Act 1967
‘AND UPON the Court observing that, subject to the satisfaction of the statutory criteria IT IS DECLARED THAT:
‘(a) [P] lacks the capacity to consent to (or refuse) a termination of her current pregnancy.
(b) It shall be lawful in the present circumstances, as being in [P]’s best interests, for a doctor treating her to carry out a termination in accordance with the criteria as set out in section 1 of the Abortion Act 1967 notwithstanding her incapacity to provide legal consent, subject to her being compliant and accepting of such medical procedure.’
- A Statutory framework 8.1
- Offences Against the Person Act 1861 8.2
- Infant Life (Preservation) Act 1929 8.3
- Abortion Act 1967 8.4
- Human Fertilisation and Embryology Act 1990 8.5
- B Particular issues of compliance with the Abortion Act 1967 conditions 8.6
- Conscientious objection 8.6
- Multiple foetuses 8.7
- Does the procedure have to be successful to be lawful? 8.8
- Does the procedure have to be performed by a medical practitioner? 8.9
- Certification of medical opinion 8.10
- The grounds 8.11
- Risk of injury to the mother greater than if pregnancy terminated: s 1(1)(a) 8.11
- Termination is necessary to prevent grave permanent injury: s 1(1)(b) 8.15
- Risk to life of pregnant woman greater than if the pregnancy were terminated: s 1(1)(c) 8.16
- Substantial risk of the child being seriously handicapped from physical or mental abnormalities: s 1(1)(d) 8.17
- The place of treatment 8.18
- C The patient’s consent 8.19
- Competent adults 8.20
- Children 8.21
- Incompetent adults 8.22
- Determining competence: termination of pregnancy 8.23
- Best interests: termination of pregnancy 8.24
- Use of force: non-consensual incompetent patients 8.25
- Procedure and evidence 8.26
- Making an application 8.26
- Timing of the application 8.27
- Important considerations for the court 8.28
- D Conclusion 8.29