Conscientious Objection (Medical Activities) Bill [HL]

Baroness O'Loan Excerpts

Committee: 1st sitting (Hansard): House of Lords
Friday 23rd March 2018 Lords Chamber

I respectfully suggest that that comment exposes the fallacy in an argument that certainly the noble Lord, Lord Elton, who, alas, is not in his place today, advanced at Second Reading. His argument was that we should approach the question of how closely associated with a pregnancy termination one must be in order to invoke the conscience clause in the same way as one decides who should be regarded as guilty of aiding and abetting a burglary. Plainly, anybody keeping a look-out during a burglary or anyone driving a getaway car is guilty, but I respectfully remind those who are attracted to this analogy that of course burglary is a crime: it is something we actually take steps to discourage. That is why we have wide secondary criminal liability for it and punish those who contribute in any way to its commission. Abortion, by contrast, is lawful, and those undergoing it are entitled to terminate their pregnancies.

[Baroness O’Loan (CB)]

I hesitate to interrupt the noble and learned Lord, but will he confirm that abortion is not always lawful? Abortion is lawful only in those situations in which it was decriminalised under the Abortion Act 1967.

[Lord Brown of Eaton-under-Heywood]

I absolutely accept that of course that is right. I was putting it in that shorthand way simply to make the point. Of course, everything that I say in this respect plainly applies only to lawful abortion under the Act. It is in that context that we are debating the question. I suggest in parenthesis that it is intolerable that, for example, certain abortion clinics are from time to time surrounded by protestors who harass and intimidate those who are attending for—let me insert the word—lawful treatment by termination.

I return briefly to the judgment in Doogan, which explains, at paragraph 11, that participation means actually taking part in the process. Following a lengthy section of the judgment, which I will not weary the House with but which closely analyses the competing arguments on the case, the noble and learned Baroness, Lady Hale, returns to the all-important question at paragraph 38, the paragraph that the noble Lord, Lord Steel, quoted. I will just give a slightly fuller quotation, because he left out one or two bits that I think are worth reading into the record. He read this bit but I will read on. Paragraph 38 says:

“It is unlikely that, in enacting the conscience clause, Parliament had in mind the host of ancillary, administrative and managerial tasks that might be associated with those acts. Parliament will not have had in mind the hospital managers who decide to offer an abortion service, the administrators who decide how best that service can be organised within the hospital (for example, by assigning some terminations to the Labour Ward, some to the Fetal Medicine Unit and some to the Gynaecology Ward), the caterers who provide the patients with food, and the cleaners who provide them with a safe and hygienic environment. Yet all may be said in some way to be facilitating the carrying out of the treatment involved. The managerial and supervisory tasks carried out by the Labour Ward Co-ordinators are closer to these roles than they are to the role of providing the treatment which brings about the termination of the pregnancy. ‘Participate’ in my view means taking part in a ‘hands-on’ capacity”.


That is the theme taken up by the shorthand encapsulation of this judgment in Amendment 1 and a certain amendment which will follow.

In the very next paragraph of the judgment, there then follows an enormously helpful and detailed exegesis of that approach—a test of the principle against what was in that decision. It is an agreed list of 13 tasks included in the role of the two petitioners in that case, as labour ward co-ordinators. Some of those tasks were held to be covered by the conscience clause and others were held not to be. Some were specifically held to be covered but to an explicitly defined extent.

It is tempting to read out the entire paragraph and to invite a clear indication from those who resist these amendments as to where they are suggested to be too restrictive of the exemption provision. But in the interests of brevity I will simply quote three of the shorter sub-paragraphs, which set out certain of the agreed tasks. The first task referred to,

“management of resources within the Labour Ward, including taking telephone calls from the Fetal Medicine Unit to arrange medical terminations of pregnancy; this is not covered by the conscience clause as interpreted above”.

The sixth task referred to is,

“responding to requests for assistance, including responding to the nurse call system and the emergency pull; responding by itself is not covered; it would depend upon the assistance requested whether it was part of the treatment for a termination”.

Finally, there is sub-paragraph 11—no, perhaps sub-paragraph 10, as it is shorter. It refers to:

“communicating with other professionals, eg paging anaesthetists; this is a managerial task which is not covered by the conscience clause as interpreted above”.

If it is unamended, the Bill would provide exemption from all these tasks by those in the position of the two Doogan petitioners.

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That is why it is quite inappropriate to include in the Bill such wide powers for an objecting doctor to be able to prevent others providing treatments to which they personally object. Indeed, if it is the patient’s interest—which comes first—such doctors are currently under an obligation to refer their patients to someone else, particularly if by not doing so that patient is likely to come to harm. The first “do no harm” dictum of Hippocrates really should come first. That is why I support this amendment, which specifically limits conscientious objections to the doctor with hands-on responsibility, and no one else who may care for the patient. Many of the amendments we will shortly consider simply emphasise that point. Together, they make it difficult to understand why we need the Bill at all when we have two other Acts that cover the difficulty of conscientious objection so well.

[Baroness O'Loan]

I may have misunderstood the noble Lord, but I think that he said that the Bill would enable a doctor who will not engage with a particular process to prevent somebody else from engaging in that process. Is that what the noble Lord said? Could he explain to me why he said it, if so, so that I can understand better?

[Lord Turnberg]

The wording of the Bill makes sure that a doctor who has conscientious objections to a procedure has a responsibility under the Bill to prevent others being involved in such procedures, and in their training and supervision, which makes it very difficult for someone working with them to carry out such procedures.

[Baroness O'Loan]

Can I ask the noble Lord to refer me to the section of the Bill that does that, because it is not the intention of the Bill, and I actually do not believe that it is the effect?

[Lord Turnberg]

I can. Clause 1(1)(c) refers to:

“No medical practitioner with a conscientious objection to participating in … any activity … required to prepare for, support or perform termination of pregnancy”,


in this instance.

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[Lord Cashman]

Before the noble Lord, Lord McColl, replies, at the moment there is a duty to refer, but that duty would be overruled by Clause 1(2).

[Baroness O'Loan]

My Lords, delegation and referral are not the same thing and what is provided for in the Bill is a right to conscientiously object to delegation. I beg the pardon of the noble Lord, Lord McColl—I should not have interrupted.

[Lord McColl of Dulwich]

I am delighted to be interrupted. A debate is about toing and froing, and there is not enough of that.

If we use the law to impose an approach that is intolerant of conscience, forcing some people out of the medical profession and, effectively, dissuading others from joining it—that is an important point—many people will suffer as a result. We are already short in recruiting new doctors and these amendments are the last thing that we need. In the medical profession, the greater our overall capacity, the greater the capacity to provide abortions and, as we are trying to say, there are plenty of people without conscientious objections.

On the suggestion that we should adopt the amendments because they reflect what the noble and learned Baroness, Lady Hale, suggested in the Doogan judgment, we have mentioned, first, that we do not have to be constrained by her judgment; we are at liberty to come back and change the law, if it is the will of Parliament. Secondly, in the noble and learned Baroness’s judgment, she recognised that there are two potential ways of interpreting the intention of Parliament with respect to conscientious objection: a broad way and a narrow way. She said that,

“a broad meaning might cover things done in connection with that treatment after it had begun, such as assigning staff to work with the patient, supervising and supporting such staff, and keeping a managerial eye on all the patients in the ward, including any undergoing a termination. A narrow meaning would restrict it to ‘actually taking part’, that is actually performing the tasks involved in the course of treatment”.

She concluded that,

“the narrow meaning is more likely to have been in the contemplation of Parliament when the Act was passed”.

We are trying to change the law so that it is quite clear that that is not so, and we have every right so to do.

This Bill is timely and it is a liberal measure that should get the support that it needs. By contrast, the amendments are deeply mistaken, for three reasons. First, they will hurt the service providers by imposing an ugly uniformity that will result in many more cases of people such as Mary Doogan losing their job. Does the noble Lord, Lord Steel, whose Bill it was in 1967, agree that the decision in Glasgow to sack Mary Doogan because of her conscientious objection to being involved in an abortion was the right decision? She was a wonderful midwife and had done more than 5,000 deliveries. She was a very valuable member of the team. Does the noble Lord think that was the right decision?

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[Baroness O’Loan]

The noble Baroness seems to be suggesting that we are attempting in some way to restrict access to the three areas of healthcare services. That is absolutely not the case. The Bill provides that and acknowledges the current responsibilities of the Government to provide a National Health Service with the services that Parliament has agreed should be provided. I want to make that clear because I am not sure the noble Baroness understands it.

[Baroness Thornton]

The Bill does not do that. That is what this scrutiny is about. It really does not. If the noble Baroness really wants to make progress, she needs to bring forward amendments which clarify that. She has not done so, so these amendments are about probing that and, in particular, this issue. Rather than exhorting us to say what the Bill does not do, the noble Baroness needs to examine it and take on board its unintended consequences. That is what this House exists to illustrate.

[Baroness O’Loan]

That is exactly what we are doing. This is a very useful debate.

[Baroness Tonge]

I was not implying that the noble Baroness was trying to destroy the Abortion Act completely. I entirely accept that, but what she is doing could lead to the service being very badly distressed and may have the same effect in the end.

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[Lord Alton of Liverpool]

‘I was very grateful that the gynaecologist who saw my own children into the world did not support abortion. That gave my wife and I great confidence in the lady who was our gynaecologist. I think there should be scope within the service for people to have alternative views. If the phrase “don’t join the service” that the noble Baroness used were to apply, it would mean that people like that would not be able to join the service in the first place.

Another change that has taken place in these years is that it was never envisaged in 1967 that abortion would happen on a regular day-by-day basis on the scale on which it is taking place. In fact, the noble Lord, Lord Steel, often said that it would occur only in rare and exceptional circumstances. There are now examples of some people who have had eight abortions under the National Health Service. You have to ask the question the noble Baroness often asks: “Why is not more done earlier to find alternatives to this?” That too should be in the scope of an inquiry into the workings of the 1967 Act, and so too should be the issue of gender abortions. If I was working in the National Health Service and was told that I had to facilitate the ending of the life of a little girl merely because she was a little girl, I would say no. The 1967 Act surely does not allow for that, and yet we know that there have been such cases and that the authorities decided not to take any legal action. Indeed, there was a vote in another place on a Bill to outlaw such gender abortions. It was lost by 201 votes to 292, so this is not the realms of fantasy. Noble Lords have to ask themselves precisely what their red line would be in regard to questions such as this.

I conclude by giving two opinions from people who have thought about these things in great detail. One is from Professor Andrew Tettenborn, who said:

“The point matters a great deal. Many NHS hospitals now put abortion and other controversial procedures out to tender (a matter itself a cause for concern … and so organisation rather than participation is increasingly what will be demanded from … unwilling staff”.


I also refer the Committee to the review of Dr Mary Neal, senior lecturer in law at Strathclyde University, who said:

“The core purpose of any conscience provision is to protect individuals from having to share in moral responsibility for something they consider to be seriously wrong. Since the current law leaves some of those who would share in responsibility unprotected, it fails to fulfil this core purpose”.


So when the noble Lord, Lord Steel, said in 1967:

“The Bill imposes no obligation on anyone to participate in an operation”,


I believe he was sincere. When he also said that the “conscience” clause,

“also gives nurses and hospital employees a clear right to opt out”—[Official Report, Commons, 13/7/1967; col. 1318.],

I believe that is what he intended. I do not believe he intended that people such as Mary Doogan should lose their job. That is why my noble friend’s Bill is so important.

[Baroness O'Loan]

My Lords, I have listened with great care to the various speakers who have articulated their views on this group of amendments. It has been a very profound and interesting debate and I thank all contributors.

As I said at Second Reading, the Bill does not seek to limit access to abortion. It could never result in a patient who had expressed a wish not to be resuscitated in an advance decision being forcibly treated. It would not result in treatment, hydration or nutrition being withdrawn from someone who wanted to live. For the avoidance of doubt, it is only about enabling medical practitioners to withdraw from treatment which they perceive for moral or philosophical reasons, or for reasons of belief, to lead inevitably to death, whether of a living person or of an unborn child. It is not about doing things to patients; it is about some medical practitioners not having to do some things.

I want to allude for a moment to the various contributions on the subject of what the noble and learned Baroness, Lady Hale, said. I endorse what the noble Lord, Lord Alton, said—that Parliament could not have envisaged the way in which the abortion law would develop. The noble and learned Baroness, Lady Hale, chose the narrow meaning on the basis that it was more likely to have been in the contemplation of Parliament when the Act was passed. She acknowledged the existence of a broader interpretation. As the noble Lord, Lord McColl, very clearly said, we have the right, as a Parliament, to change things. I am suggesting that we need now to contemplate the situation in 2018, not the situation in 1967, so it is not about refusing people access to treatment. There have been suggestions that it is about denying patient autonomy. A patient does not have and never has had the right to compel a particular practitioner to do a particular medical procedure. However, they have the right to a service and the right, if they want it, to a second opinion, and that must continue.