Greater Glasgow Health Board v Doogan and another

The Supreme Court construes section 4(1) of the Abortion Act 1967 (the conscience clause) as referring to the whole course of medical treatment bringing about the termination of pregnancy under section 1, but gives a narrow meaning to "participating in any treatment authorised by this Act": it excludes purely administrative, managerial and pre-treatment tasks and extends only to taking part in the hands-on provision of that treatment. Section 4(2)'s exception for duties necessary to save life or prevent grave permanent injury limits the scope of conscientious objection. The Court emphasised that tasks performed before the treatment begins (for example making bookings or signing pre-treatment certificates) are not covered, whereas direct clinical care during induction, labour and delivery (including assistance in instrumental delivery, emergency interventions and aftercare related to the termination) is covered. The obligation to refer the patient to a colleague who does not share the objection remains a necessary corollary of professional duty of care.

Background and parties: Two experienced practising Roman Catholic midwives employed as Labour Ward Co-ordinators (the petitioners) at the Southern General Hospital objected on conscientious grounds to any involvement in termination of pregnancy and feticide. They claimed their entitlement under section 4(1) of the Abortion Act 1967 included refusing to delegate, supervise or support staff providing care throughout the termination process.

Procedural history: The petitioners pursued internal grievance procedures which were rejected at Board level. They sought judicial review. The Lord Ordinary (Lady Smith) dismissed their petition. An Extra Division of the Inner House allowed a declarator in their favour (reported at [2013] CSIH 36). The Health Board appealed to the Supreme Court.

Issues:

• What is the meaning of "treatment authorised by this Act" in section 4(1) of the Abortion Act 1967?;
• What is the meaning and scope of "to participate in" such treatment (i.e. does it extend to administrative, managerial or supervisory tasks)?;
• How does section 4(2) (duty to participate where necessary to save life or prevent grave permanent injury) affect the scope of objection?

Reasoning: The Court approached the matter by statutory construction. It accepted the long-established view (Royal College of Nursing) that the Act authorises the whole course of medical treatment designed to bring about termination, beginning with administration of drugs and normally ending with delivery of foetus, placenta and membrane. However, the Court held that Parliament is unlikely to have intended the conscience clause to extend to the wide range of ancillary, managerial and administrative tasks associated with providing an abortion service. "To participate in" was therefore given a narrow, "hands-on" meaning: it covers direct clinical involvement in the treatment process (including monitoring, pain relief, delivery, emergency interventions and related aftercare) but not pre-treatment administrative acts (booking, certification) or general managerial duties (allocating staff, ward management, catering, cleaning). The Court noted that section 4(2) would normally require clinical staff to act where necessary to save life or prevent grave permanent injury.

Subsidiary findings and context: The Court observed that Human Rights Act and Equality Act issues remain relevant but are context-specific and better resolved in employment/tribunal proceedings; it emphasised the professional duty to refer patients to non-objecting colleagues. The Court tested its construction against an agreed list of Labour Ward Co-ordinator tasks and identified which tasks would or would not be covered by the conscience clause.

Relief and disposition: The Supreme Court allowed the employer's appeal, set aside the Inner House declarator and invited further submissions as to the form of any replacement order.

Appeal allowed. The Court held that the "treatment authorised by this Act" comprises the whole course of medical treatment bringing about termination under section 1 of the Abortion Act 1967, but that "to participate in" such treatment in section 4(1) should be read narrowly to mean taking part in a hands-on clinical capacity; managerial, administrative and pre-treatment tasks are not covered. Section 4(2) remains an important limitation for duties necessary to save life or prevent grave permanent injury. The Inner House declarator in favour of the petitioners was set aside and further submissions were invited as to the appropriate replacement order.

Judicial review claim dismissed by the Lord Ordinary (Lady Smith). Allowed by an Extra Division of the Inner House (Lord Mackay of Drumadoon, Lady Dorrian and Lord McEwan) (reported at [2013] CSIH 36). Appeal to the Supreme Court heard and allowed ([2014] UKSC 68).