R v Salford Health Authority, Ex parte Janaway (Janaway, Ex parte, In re Janaway's Application)

The conscientious objection protected by section 4(1) of the Abortion Act 1967 extends only to actual participation in treatment undertaken to terminate a pregnancy. It does not cover preliminary or administrative work, such as typing a referral letter, even where that work may lead to consideration of a termination.

The word “participate” bears its ordinary meaning in this context. It does not import the criminal law governing principals and accessories. Section 4(1) therefore does not protect every person whose conduct might assist or facilitate an abortion.

A secretary employed by a health authority refused, on grounds of religious conscience, to type a letter referring a pregnant patient to a consultant for an opinion on termination. The authority dismissed her after she maintained that section 4(1) of the Abortion Act 1967 relieved her of that contractual duty.

Nolan J dismissed her application for judicial review. The Court of Appeal, by a different route, affirmed that decision: [1988] 2 WLR 442. The employee appealed to the House of Lords.

The central issue was whether “participate in any treatment authorised by this Act” covered preliminary arrangements intended to lead to a possible termination, including typing a referral letter, or was confined to participation in the treatment itself.

1. Appeal dismissed unanimously. Lord Keith of Kinkel delivered the leading speech. Lord Brandon of Oakbrook, Lord Griffiths, Lord Goff of Chieveley and Lord Lowry agreed with his reasons.

2. Per Lord Keith, the ordinary and natural meaning of “participate in any treatment” in section 4(1) of the Abortion Act 1967 is actually to take part in treatment administered for the purpose of terminating a pregnancy. It does not extend to typing a letter referring a patient to a consultant who might consider whether a termination was appropriate. Nolan J and Balcombe LJ had therefore adopted the correct construction.

3. Per Lord Keith, section 4(1) does not import the criminal law concerning principals and accessories. “Participate” is not used there as a criminal-law term of art. Treatment authorised by section 1 is, by hypothesis, lawful. Parliament could have protected participation in anything authorised by the Act, but instead confined the protection to participation in treatment.

4. The structure of section 4 also indicated a legislative compromise. Although a person might conscientiously object to every abortion, section 4(2) preserves a duty to participate in treatment necessary to save the pregnant woman’s life or prevent grave permanent injury to her physical or mental health.

5. Per Lord Keith, Royal College of Nursing of the United Kingdom v Department of Health and Social Security [1981] AC 800 did not govern the issue. That case concerned a medical process carried out in hospital under a registered medical practitioner’s supervision. It did not determine the meaning of “participate” in relation to activity outside the actual medical process.

6. The House expressed no opinion on whether section 4(1) could protect a doctor required to sign the certificate prescribed by regulation 3(2) of the Abortion Regulations 1968. The regulations treated the certificate as preceding the commencement of treatment, and the judgment did not establish that any legal duty to sign it existed.

7. It was unnecessary to decide whether the secretary would have possessed the intention required for accessory liability if the conduct had otherwise been criminal. Lord Keith did not endorse the Court of Appeal majority’s reasoning on that alternative ground.

1. House of Lords: The appeal was dismissed unanimously. The construction adopted by Nolan J and Balcombe LJ was upheld.

2. Court of Appeal: Slade, Balcombe and Stocker LJJ affirmed the dismissal of the application: [1988] 2 WLR 442. Slade and Stocker LJJ held that the employee would lack the intention necessary for criminal accessory liability; Balcombe LJ adopted the narrower construction of section 4(1) subsequently approved by the House.

3. High Court: Nolan J dismissed the application for judicial review, holding that section 4(1) of the Abortion Act 1967 covered actual participation in treatment rather than preliminary administrative arrangements.