Royal College of Nursing of the United Kingdom v Department of Health and Social Security

The Abortion Act 1967 protects every person participating in an authorised termination, not only the registered medical practitioner. “Termination of pregnancy” denotes the whole treatment undertaken to bring about an abortion, rather than the final physical act.

Treatment is “by” a registered medical practitioner when the doctor accepts responsibility for the whole process, chooses the method, performs acts reserved by accepted medical practice to doctors, gives specific directions for tasks properly entrusted to other staff, and remains in charge and available throughout. A nurse acting within that controlled team treatment is protected even though the nurse directly administers the abortifacient drugs.

The Department of Health and Social Security issued guidance stating that nurses could lawfully participate in extra-amniotic termination using prostaglandin and oxytocin. The Royal College of Nursing sought a declaration that the guidance was wrong because nurses performed the acts directly administering the abortifacient drugs.

Woolf J held that the procedure was authorised by section 1 of the Abortion Act 1967. The Court of Appeal reversed that decision, although its members differed in their reasoning. The Department appealed to the House of Lords.

The central issue was whether a pregnancy was terminated “by a registered medical practitioner” when a doctor prescribed, initiated and controlled the treatment, while nurses acting under written instructions performed most of the subsequent steps.

1. Disposition. By a majority of three to two, the House allowed the Department's appeal. Lord Diplock, Lord Keith of Kinkel and Lord Roskill formed the majority. Lord Wilberforce and Lord Edmund-Davies dissented.
2. Statutory scheme. Per Lord Diplock, section 5(2) of the Abortion Act 1967 made section 1 an exhaustive statement of the circumstances in which treatment intended to procure a miscarriage was lawful. It displaced the former construction of “unlawfully” associated with R v Bourne [1939] 1 K.B. 687. Lord Roskill likewise treated the Act as exempting from the criminal law those, and only those, whose treatment satisfied all its requirements.
3. Meaning of termination. Per Lord Diplock, the statutory expressions “termination of pregnancy” and “treatment for the termination of pregnancy” referred to the whole course of treatment undertaken to produce an abortion. They were not confined to the final physical occurrence of miscarriage. Lord Keith of Kinkel and Lord Roskill reached materially the same construction from sections 1(3), 4(1) and 5(2).
4. Treatment by a doctor. Per Lord Diplock, treatment was by a registered medical practitioner where the doctor accepted responsibility for every stage, selected the method, personally performed acts reserved by accepted medical practice to doctors, specifically directed the work properly entrusted to nurses or other staff, and remained available throughout. Lord Keith regarded the doctor as the principal and the nurse's directed acts as ministerial. Lord Roskill regarded continuing medical control in accordance with ordinary current practice as sufficient.
5. Application. The agreed procedure met those requirements. The doctor decided upon the treatment, inserted the catheter and cannula, supplied instructions, remained on call and controlled the entire process. The nurses' initiation and regulation of the drug infusions therefore formed part of treatment by the doctor and were protected by section 1(1).
6. Dissent. Lord Wilberforce and Lord Edmund-Davies considered that the statutory words required the registered medical practitioner personally to perform the material abortifacient acts. They regarded the extensive nursing role as a post-1967 development which could be authorised only by Parliament, not by expanding the statutory language judicially.
7. Order. The Court of Appeal's order was reversed and Woolf J's order was restored. There was no order for costs in the House, and the cause was remitted to the Queen's Bench Division.

• House of Lords: By a majority of three to two, allowed the Department's appeal, reversed the Court of Appeal's order and restored Woolf J's order: [1981] AC 800.
• Court of Appeal: By an order dated 7 November 1980, reversed Woolf J and held that the nurses' participation in the extra-amniotic procedure was not authorised by section 1 of the Abortion Act 1967. No report citation is stated in the judgment.
• High Court, Queen's Bench Division: On 31 July 1980, Woolf J declared that the procedure was permitted by section 1. No report citation is stated in the judgment.