Greater Glasgow Health Board v Doogan and another

The conscientious objection in section 4(1) of the Abortion Act 1967 protects a person who objects to taking part in a hands-on capacity in the whole course of medical treatment which brings about a termination. That treatment ordinarily begins with the administration of drugs designed to induce labour and ends with delivery of the foetus, placenta and membrane. It includes directly connected medical and nursing care, but excludes ancillary administrative, managerial and supervisory work.

Tasks preceding treatment, including arranging admission and providing the statutory medical opinions, fall outside the protection. Ordinary care which was already lawful without the Act is also excluded. The protection does not relieve a person of a duty to provide treatment necessary to save the pregnant woman’s life or prevent grave permanent injury.

Two Roman Catholic midwives employed as Labour Ward Co-ordinators objected on grounds of conscience to involvement in terminations of pregnancy. Their employer accepted that they need not provide one-to-one care but required them to undertake managerial and supervisory duties, including delegating, supervising and supporting staff caring for patients undergoing termination.

The Lord Ordinary rejected their challenge to that position. The Inner House allowed their appeal and declared that section 4(1) of the Abortion Act 1967 entitled them to refuse to delegate, supervise or support staff throughout the termination process, subject to section 4(2): [2013] CSIH 36.

The Health Board appealed. The sole issue was the meaning of participation in treatment authorised by the Act.

1. Appeal allowed unanimously. Lady Hale, with whom Lord Wilson, Lord Reed, Lord Hughes and Lord Hodge agreed, held that the Inner House had construed section 4(1) of the Abortion Act 1967 too widely. Its declarator was set aside, with further submissions invited on any replacement order or declarator.

2. The treatment authorised by the Act is the whole course of medical treatment which brings about the ending of the pregnancy. In a medical termination it ordinarily begins with administration of the drugs designed to induce labour and ends with delivery of the foetus, placenta and membrane. It includes medical and nursing care directly connected with labour and delivery, such as monitoring labour, pain relief, clinical advice and support, assisted delivery, disposal of the products of conception and specific resulting aftercare.

3. Section 4(1) protects participation in that treatment only where the objector takes part in a hands-on capacity. Parliament did not extend the conscience clause to the many ancillary, administrative, managerial and supervisory tasks which facilitate treatment. Accordingly, arranging bookings, allocating staff, giving handovers, managing resources, paging other professionals and generally supervising the ward fell outside the clause. Direct clinical assistance, personally providing break relief, forming clinical judgments and giving treatment-specific advice could fall within it.

4. Acts occurring before treatment begins are outside section 4(1). The doctors’ statutory opinions and certificates are necessary preconditions rather than part of the treatment. Ordinary nursing, pastoral and family care which was lawful before the 1967 Act is likewise not treatment made lawful by that Act.

5. Section 4(2) preserves duties to participate where treatment is necessary to save the pregnant woman’s life or prevent grave permanent physical or mental injury. A conscientious objector who has assumed responsibility for a patient must also arrange referral to a professional who does not share the objection. That obligation is a necessary consequence of the professional duty of care.

6. The statutory construction did not determine every employment consequence. A public employer must also respect Convention rights, while the Equality Act 2010 prohibits direct or unjustified indirect discrimination because of religion or belief. Questions about reasonable accommodation and practicability were better resolved in the employment tribunal proceedings.

1. United Kingdom Supreme Court: The Health Board’s appeal was allowed unanimously. The declarator granted by the Inner House was set aside, and further submissions were invited on any replacement order or declarator: [2014] UKSC 68.
2. Inner House of the Court of Session: An Extra Division allowed the midwives’ appeal and declared that section 4(1) of the Abortion Act 1967 entitled them to refuse to delegate, supervise or support staff caring for patients undergoing termination, subject to section 4(2): [2013] CSIH 36.
3. Outer House of the Court of Session: The Lord Ordinary, Lady Smith, rejected the midwives’ judicial review challenge. No citation is stated in the judgment.