Royal College of Nursing of the United Kingdom v Department of Health and Social Security [1981] 1 All ER 545

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Positive or Neutral Judicial Treatment
*800 Royal College of Nursing of the United Kingdom Respondent v
Department of Health and Social Security Appellant
House of Lords
5 February 1981
[1981] 2 W.L.R. 279
[1981] A.C. 800
Lord Wilberforce , Lord Diplock , Lord Edmund-Davies , Lord Keith of Kinkel and Lord Roskill
Lord Denning M.R. , Brightman L.J. and Sir George Baker
1980 Dec. 8, 9; 1981 Feb. 5
1980 Oct. 27, 28, 29; Nov. 7
APPEAL from Woolf J.
The plaintiffs, the Royal College of Nursing of the United Kingdom, appealed from a decision of
Woolf J. given on July 31, 1980, whereby he refused them a declaration that the statement as to
the legality of the role of the nurse in termination of pregnancy by medical induction and the
statement as to procedures that might be performed by an appropriately skilled nurse or midwife
contained in annexes to a letter dated February 21, 1980, written on behalf of the defendants, the
Department of Health and Social Security, was wrong in law, and that acts carried out by nurses or
midwives in performance of the termination of pregnancies as set out in the annexes contravened
the law relating to abortion and in particular the provisions of section 58 of the Offences against the
Person Act 1861 . Woolf J., having refused the Royal College of Nursing the declaration which they
sought, declared that the advice contained in the letter of February 21, 1980, and the annexes
thereto, did not involve the performance of unlawful acts by members of the college.
The ground of the appeal was that the judge misdirected himself as to the law and was wrong in law
in refusing to grant the declaration sought by the plaintiffs.
The facts are stated in the judgment of Lord Denning M.R.
Representation
Michael Spencer for the Royal College of Nursing.
Sir Ian Percival Q.C., S.-G., Simon D. Brown and Stephen Aitchison for the department.
Cur. adv. vult.
November 7. The following judgments were read. LORD DENNING M.R.
Introduction
Abortion is a controversial subject. The question for us today is this: when a pregnancy is terminated
by medical induction, who should do the actual act of termination? Should it be done by a doctor?
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Or can he leave it to the nurses? The Royal College of Nursing say that the doctor should do the
actual act himself and not leave it to the nurses. The Department of Health and Social Security take
a different view. They say that a doctor can initiate the process and then go off and do other things,
so long as he is "on call." The controversy is so acute that it has come before us for decision.
Throughout the discussion I am going to speak of the unborn child. The old common lawyers spoke
of a child en ventre sa mere. Doctors speak of it as the foetus. In simple English it is an unborn child
inside the mother's womb. Such a child was protected by the criminal law almost to the same extent
as a new-born baby. If anyone terminated the pregnancy - and thus destroyed the unborn child he or she was guilty of a felony and was liable to be kept in penal servitude for life (see section 58
of the Offences against the Person Act 1861 ) unless it was done to save the life of the mother: see
Rex v. Bourne [1939] 1 K.B. 687 . Likewise anyone *803 who assisted or participated in the
abortion was guilty, including the mother herself. I have tried several cases of "back-street
abortions" - where the mother died or was made seriously ill. I have passed severe sentences of
imprisonment for the offence.
The Abortion Act 1967
The approach to the subject was revolutionised by the Abortion Act 1967 . It legalised abortion if it
was done so as to avoid risk to the mother's health, physical or mental. This has been interpreted
by some medical practitioners so loosely that abortion has become obtainable virtually on demand.
Whenever a woman has an unwanted pregnancy, there are doctors who will say it involves a risk to
her mental health. But the Act contains some safeguards. It provides that, in order for the abortion
to be lawful, it is subject to three conditions: (1) the woman has to get two doctors to give a
certificate; (2) the abortion has to be done in hospital; and (3) the pregnancy has to be "terminated
by a registered medical practitioner." It is this last condition which comes up for consideration today.
It arises because of the advance in medical science.
The material words of the Act of 1967 are:
"... a person shall not be guilty of an offence under the law relating to abortion when
a pregnancy is terminated by a registered medical practitioner..."
At the time that the Act was passed - and for five years afterwards - there was no difficulty of
interpretation. All abortions then - at any rate when the mother was three months pregnant or more
- were done by surgical methods. The knife with the cutting edge was operated by a registered
medical practitioner. He used it to remove the unborn child. The knife was never handled by a nurse.
She was not a registered medical practitioner.
Medical induction
Since 1972 a new method has been used. It is called medical induction. It does not involve a knife.
It started quite simply in ordinary full-time births - so as to induce labour a few hours early - to save
the mother the stress of waiting - or for the convenience of doctors and staff. But it is now becoming
much used to effect abortions - when the mother is pregnant for three months or more. It is done
by pumping a chemical fluid into the mother's womb. It is called prostaglandin. This fluid so affects
the muscles and shape of the mother's inside that it forces her into labour prematurely - so that the
unborn child is expelled from the body - usually dead, but sometimes at the point of death.
There are two distinct stages in this process. The first stage is done by a doctor - a registered
medical practitioner. The mother is taken from the ward to the operating theatre. She is given a
general anaesthetic. The doctor inserts a fine catheter into her body so as to reach a particular part
of her womb. But no fluid is pumped into her at that stage. She is then taken back to the ward. She
is left there until she recovers from the anaesthetic. *804 The doctor writes out a few notes telling
the nurse what to do. He then goes off, saying: "Give me a call if there is any difficulty."
The second stage is done by the nurses. When the mother comes round from the anaesthetic, they
get a flexible tube and connect up the catheter with a pump which is electrically driven, or with a
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dripping device. They then get the special fluid called prostaglandin. They have to see that it is of
the right concentration. They have it in a bottle, and pump the fluid into the woman's body. They
have to regulate the dose and control the intake - by speed and amount - as occasion requires. If
need be, they have to get another bottle. They have to watch the woman and note her reactions,
and take such steps as occasion requires. Labour is induced. The unborn child is expelled from the
woman's body. The process may take 18 hours, or even up to 30 hours. If the unborn child is not
expelled by that time, the process is stopped. The child is allowed to live on - to await normal
delivery later.
Here I would stop for a moment to point out that the first stage (done by the doctor) does nothing
to terminate the pregnancy. The insertion of the catheter is only a preparatory act. It is the second
stage (done by the nurses) which terminates the pregnancy. There is an agreed statement of fact
which shows that the causative factor is the administration of prostaglandin. This is the way in which
it is put:
"It will be appreciated that in the medical induction process the causative factor in
inducing the labour and hence the termination of pregnancy is the effect of the
administration of prostaglandin and/or oxytocin and not any mechanical effect from
the insertion of the catheter or cannula. In that the nurse does, on the instructions of
the doctor, commence or augment the flow of prostaglandin or oxytocin, and even
sometimes effect the connection between the already inserted catheter and the prostin
pump and the already intravenous cannula and the oxytocin infusion, her role in the
process does include acts which have. and are intended to have. an abortifacient
effect."
To take a parallel from the removal for an appendix, the anaesthetist makes all the preparations,
but the removal is done by the surgeon himself. So here, the doctor makes the preparations inserting the catheter - but the pregnancy is terminated by the act - the continuous act - done by
the nurses, from the moment that they start the pump or the drip to the moment the baby is
expelled.
The Royal College objection
I can quite understand that many nurses dislike having anything to do with these abortions. It is a
soul-destroying task. The nurses are young women who are dedicated by their profession and
training to do all they can to preserve life. Yet here they are called upon to destroy it. It is true that
the statute gives them an escape clause. They can refuse to participate in any treatment to which
they have a "conscientious objection": see section 4 of the Act of 1967. But the Report of the
Committee on the Working of the Abortion Act (1974) (Cmnd. 5579), the Lane Report, shows that
many nurses do not take advantage of this "escape clause;" *805 because it means that other
nurses will have to do this heart-rending task; and they feel it may be held against them by their
superiors. So they take part in it - much against their will, see paragraph 321 to 374 of the Lane
Report.
It is against this background that the Royal College of Nursing ask the question: is it lawful for
nurses to be called upon to terminate pregnancy in this way? The Royal College says "No. It is not
lawful. It is not a nurse's job to terminate a pregnancy." The Department of Health say "Yes. It is
lawful" They have issued a circular in which they presume to lay down the law for the whole of the
medical profession. They say that it is no offence if the pregnancy is terminated by a suitably
qualified person in accordance with the written instructions of a registered medical practitioner. This
is the wording of the circular:
"However, the Secretary of State is advised that the termination can properly be said
to have been termination by the registered medical practitioner provided it is decided
upon by him, initiated by him, and that he remains throughout responsible for its
overall conduct and control in the sense that any actions needed to bring it to
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conclusion are done by appropriately skilled staff acting on his specific instructions but
not necessarily in his presence ." (My italics.)
Note those words "not necessarily in his presence." They are crucial.
The interpretation of the Abortion Act 1967
The lawfulness depends on the true interpretation of the statute: but, before going into it, I would
say a word or two about the approach to it.
Abortion is a subject on which many people feel strongly. In both directions. Many are for it. Many
against it. Some object to it as the destruction of life. Others favour it as the right of the woman.
Emotions run so high on both sides that I feel that we as judges must go by the very words of the
statute - without stretching it one way or the other - and writing nothing in which is not there.
Another thing to remember is that the statute is directed to the medical profession - to the doctors
and nurses who have to implement it. It is they who have to read it and to act upon it. They will
read it - not as lawyers - but as laymen. So we should interpret it as they would.
If there should ever be a case in the courts, the decision would ultimately be that of a jury. Suppose
that during the process the mother died or became seriously ill - owing to the nurse's negligence in
administering the wrong chemical fluid - and the nurse was prosecuted under the Offences against
the Person Act 1861 for unlawfully administering her a noxious thing or using other means with
intent to procure her miscarriage. The nurse would have no defence unless the pregnancy was
"terminated by a registered medical practitioner." Those are simple English words which should be
left to a jury to apply - without the judge attempting to put his own gloss upon them: see Cozens
v. Brutus [1973] A.C. 861 . I should expect the jury to say that the pregnancy was not terminated
by a registered medical practitioner, but by a nurse.
If in such a case there were a claim for damages, the nurse might not *806 be covered by insurance
because she would not be engaged in "nursing professional services accepted by the Royal College
of Nursing."
Statutes can be divided into two categories. In the first category Parliament has expressly said "by
a registered medical practitioner or by a person acting in accordance with the directions of any such
practitioner," or words to that effect: see the Radioactive Substances Act 1948, section 3 (1) (a) ;
Therapeutic Substances Act 1956, section 9 (1) (a) ; Drugs (Prevention of Misuse) Act 1964, section
1 (2) (g) ; Medicines Act 1968, section 58 (2) (b) ; Tattooing of Minors Act 1969, section 1 . In the
second category Parliament has deliberately confined it, "by a fully registered medical practitioner,"
omitting any such words as "or by his direction": see the Human Tissues Act 1961, section 1 (4) .
This statute is in the second category.
Woolf J. tested the statute by supposing that a registered medical practitioner performed an abortion
operation upon a woman whom he believed to be pregnant but who was not so in fact. The Act of
1967 would give him no defence to a charge under the Act of 1861. That is such a fanciful instance
that I do not think it throws any light on the true construction of this statute.
The Solicitor-General emphasised the word "treatment" in sections 1 (3), 3 (1) (a) and (c) and 4
(1) . He suggested that section 1 (1) should be read as if it said that a person should not be guilty
of an offence "when the treatment (for termination of a pregnancy) is by a registered medical
practitioner." He submitted that whenever the registered medical practitioner did what the
Department of Health advised it satisfied the statute, because the treatment, being initiated by him
and done under his instructions, was "by" him.
I cannot accept this interpretation. I think the word "treatment" in those sections means "the actual
act of terminating the pregnancy." When the medical induction method is used, this means the
continuous act of administering prostaglandin from the moment it is started until the unborn child
is expelled from the mother's body. This continuous act must be done by the doctor personally. It
is not sufficient that it is done by a nurse when he is not present.
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Conclusion
Stress was laid by the Solicitor-General on the effect of this ruling. The process of medical induction
can take from 18 to 30 hours. No doctor can be expected to be present all that time. He must leave
it to the nurses: or not use the method at all. If he is not allowed to leave it to the nurses, a the
result will be either that there will be fewer abortions or that the doctor will have to use the surgical
method with its extra hazards. This may be so. But I do not think this warrants us departing from
the statute. The Royal College of Nursing have advised their nurses that under the statute they
should not themselves terminate a pregnancy. If the doctor advises it, he should do it himself, and
not call upon the nurses to do it.
I think that the Royal College are quite right. If the Department of Health want the nurses to
terminate a pregnancy, the Minister should go to Parliament and get the statute altered. He should
ask them to amend it *807 by adding the words "or by a suitably qualified person in accordance
with the written instructions of a registered medical practitioner." I doubt whether Parliament would
accept the amendment. It is too controversial. At any rate, that is the way to amend the law: and
not by means of a departmental circular.
I would allow the appeal accordingly.
BRIGHTMAN L.J.
The order appealed from is a declaration that the advice contained in the department's letter and in
the annexes thereto does not involve the performance of unlawful acts by nurses or midwives.
Counsel have agreed that the only relevant part of the letter and annexes is Annex B. This annex is
divided into: "A. Procedures which must be carried out by a registered medical practitioner," and
"B. Procedures that may be performed by an appropriately skilled nurse or midwife."
The criminal offences with which we are concerned are defined by sections 58 and 59 of the Offences
against the Person Act 1861 . These sections are introduced by the cross-heading "Attempts to
procure abortion." Section 58 , so far as relevant for present purposes, enacts that a criminal offence
is committed by a person who "... with intent to procure the miscarriage of any woman, whether
she be or be not with child, shall unlawfully administer to her... any poison or other noxious thing...."
Section 59 enacts that a criminal offence is committed by a person who "shall unlawfully supply...
any poison or other noxious thing... knowing that the same is intended to be unlawfully used...."
The Abortion Act 1967 qualifies the earlier statute by enacting that a person shall not be guilty of
an offence under section 58 or 59 of the Act of 1861, or any rule of law relating to the procurement
of abortion, if certain conditions are fulfilled. There are three conditions. They are expressed as
follows (leaving aside certain modifications which apply to visiting forces, etc.): (1) "When a
pregnancy is terminated by a registered medical practitioner;" (2) "if two registered medical
practitioners are of the opinion, formed in good faith - ..." that, put shortly, the abortion is
necessary; (3) provided that "any treatment for the termination of pregnancy must be carried out
in a [National Health Service] hospital... or in a place for the time being approved..." by the Minister.
Both counsel agreed, in my view correctly, that a proper way to test the position was to assume
that an abortion is carried out in a National Health Service hospital or approved nursing home in
such a way as to involve the maximum nurse or midwife participation which is envisaged by Annex
B; then to consider whether, if an abortion be so carried out, the nurse or midwife will be able, by
virtue of section 1 of the Abortion Act 1967 , to plead successfully that he or she is not guilty of an
offence under the Act of 1861. In a given case this would be a question of fact for the jury. However,
counsel agreed, in my view correctly, that the declaration appealed from would be rightly made if,
but only if, it can be said that, were an abortion to be so performed, the trial judge would be bound
to direct an acquittal.
I first turn to consider what steps are taken in the course of an abortion by medical induction, and
how the abortion would be carried *808 out in a hospital or approved nursing home if performed
with the "maximum nurse participation" contemplated by Annex B (I include participation by a
midwife).
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The steps which are taken, or may be taken, in the case of extra-amniotic medical induction for
termination of pregnancy are as follows. For this purpose I rely on the "Agreed Statement as to
Clinical Background." Some of the steps described overlap in point of time. (1) A catheter is passed
via the cervix into the potential space between the wall of the womb and the amniotic sac. (2) The
catheter is attached to an electrically driven pump. This pump controls the rate at which the carrier
solution containing prostaglandin is propelled from a syringe and through the catheter. The purpose
of the prostaglandin solution is to separate the sac from the womb. Alternative (2) In place of a
prostin pump, the catheter may be linked to a gravity feed drip apparatus. (3) The electric pump is
started by a switch, or the drip apparatus is opened by turning a valve. (4) A cannula is inserted
into a vein. Its function will be to introduce into the bloodstream by gravity a carrier solution
containing oxytocin and thus promote uterine contractions. This step requires some qualification.
First, the cannula may already be in position, having been inserted for pre-medication purposes.
Secondly, this infusion is sometimes introduced only where there is delay in the start of the induced
labour. (5) The oxytocin drip feed is connected to the cannula. (6) The patient's condition is
continuously monitored, including quarterly or half-hourly records of pulse, blood pressure, strength,
duration and frequency of uterine contractions and blood-loss. If a gravity drip is used for the
prostaglandin infusion, the drip rate must be constantly monitored. (7) The syringes or infusion
bottles are replaced or replenished as necessary during the operation. (8) The concentration and
flow rates of both the prostaglandin solution and the oxytocin solution are adjusted as necessary
during the operation. (9) If the foetus has not been aborted after the lapse of 30 hours, the
treatment is discontinued. There is a failure rate of one to two per cent. The average lapse of time
is 18 hours.
In a case in which there is "maximum nurse participation" as contemplated by Annex B, the roles of
registered medical practitioner ("doctor") and nurse will be as follows: (1) The doctor inserts the
catheter into the womb, but does not pass fluid through it. (2) The nurse attaches the catheter to
the pump, or to the gravity feed drip apparatus. (3) The nurse switches on the pump or turns the
feed drip valve, in order to administer the prostaglandin infusion to the patient. (4) The doctor
inserts the cannula into the vein, but does not pass fluid through it. (5) The nurse links up the
oxytocin drip feed, in order to administer the infusion to the patient. (6) The monitoring of the
patient, and the monitoring of the drip rate, are carried out by the nurse. (7) The nurse replaces or
replenishes the syringe and infusion bottle as necessary in order to administer the correct quantities
of the infusions. (8) The nurse adjusts the flow rates of both the infusions. (9) The nurse discontinues
the treatment, either because the foetus has been discharged, or because the allotted period has
elapsed and the operation has failed.
As regards all the steps, the nurse performs her part in accordance *809 with the instructions of
the doctor, which will be written instructions in all important respects. In the case supposed of
"maximum nurse participation," the doctor will be on call; however, it is implicit in Annex B that he
may not in fact be called, and therefore he may be absent throughout except for steps 1 and 4
(insertion of catheter and cannula). The question now to be asked, against the background
described, is whether in such a case the pregnancy has been "terminated by a registered medical
practitioner."
During the course of argument considerable discussion was directed to the identification of the
precise act or acts which ought to be regarded as "terminating the pregnancy" and whether the
operation would be outside the Act of 1967 just because the finger of the nurse rather than the
finger of the doctor presses the switch which activates the electrical circuit that operates the pump,
or turns the valve of the feed drip. Fanciful examples were conjured up of extreme cases; suppose
the doctor is present in the operating theatre or ward for every second of the operation and
supervises it throughout but makes use of the nurse's skill to carry out important steps under his
watchful eye; does the Act intend that an offence is committed? These examples are not in my view
helpful. We have to consider only the procedure set out in Annex B and decide whether that
procedure, not some other procedure, is or is not within the Act of 1967.
There was discussion as to whether section 1 of the Act should receive a broad construction or a
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narrow construction. Emphasis was placed on the fact that the section only exempts from criminality
an occasion when a pregnancy "is terminated," and therefore would not exempt from criminality the
2 per cent. of cases where an abortion is attempted but fails; or the case where an abortion is
attempted but no pregnancy is terminated because it turns out, as may happen, that the woman is
not pregnant. It was pointed out that although the opening words of section 1 use the formula "a
pregnancy is terminated," subsection (3) , as also section 3 (1) (a), refer to "the treatment" for
termination of the pregnancy, and section 4 (1) refers to " treatment authorised by this Act." It was
submitted that where section 1 (1) refers to a "pregnancy [being] terminated" by a doctor, it is in
reality referring to "the treatment" for termination of a pregnancy being "carried out by" a doctor.
I am disposed to accept this last submission and to read section 1 (1) as meaning that a person
shall not be guilty of an offence under the law relating to abortion "when treatment for termination
of a pregnancy is carried out by " a registered medical practitioner. Such a construction does not in
my opinion involve adding any words at all to the statute. I think it is what the section means on its
true construction in the context in which the words are found. It is a construction which removes
the apparent absurdity which would arise if, for example, the operation did not succeed in
terminating the pregnancy; or if the woman proved not to be with child; or if the operation were
carried out under the constant, immediate and whole time supervision of the doctor who allowed a
nurse to do some of the "mechanical" acts in his presence and under his immediate eye.
Having attempted to construe the Act, I hope correctly, I must apply such construction to the facts
supposed in Annex B on the basis of "maximum *810 nurse participation." It will be recalled that
in the case supposed the doctor inserts the catheter into the womb and also inserts the cannula into
the vein but is then free to leave, and does leave, the operating theatre or ward before any infusions
are administered, and he does not necessarily return unless specifically recalled. In my opinion it
would be a misuse of language to describe such a termination of a pregnancy as done "by" a
registered medical practitioner; or to describe such a treatment for termination of a pregnancy as
"carried out by" a registered medical practitioner - however detailed and precise the written
instructions given by the registered medical practitioner to the nurse. It would not be far removed
from the nurse carrying out the operation from detailed instructions in a text book. The true analysis
is that the doctor has provided the nurse with the means to terminate the pregnancy, not that the
doctor has terminated the pregnancy.
I decline to express a view as to precisely what does or does not need to be done by, or to be
personally and immediately supervised by, the doctor in order to satisfy the stringent requirements
of section 1. It is not the function of the court to decide how close to dangerous waters it is possible
to sail without actually being shipwrecked.
For the reasons which I have endeavoured to express, I think that this appeal ought to be allowed.
SIR GEORGE BAKER.
The parts played by a nurse in the medical induction methods for terminating a pregnancy are set
out in the "Agreed Statement as to Clinical Background," the vital words of which have already been
read by Lord Denning M.R. The acts which she performs or may perform as for example connecting
the catheter to the prostin pump, starting the pump to enable the prostaglandin solution to be
propelled into the uterine cavity, replacing an empty syringe, initiating and controlling an
intravenous infusion of oxytocin are each and all administering a noxious thing, namely, the
prostaglandin and/or oxytocin, with intent to procure miscarriage and so within the Offences against
the Person Act 1861, section 58 . That there is an administration is unarguable, and that an
abortifacient is a noxious thing has been the law for at least a century, for in Reg. v. Hollis and
Blakeman (1873) 12 Cox's C.C. 463 , 467 Bramwell B. said: "A noxious thing within the statute
means a thing which will produce the effect mentioned in the statute - that is, a miscarriage." And
more recently Brabin J., after reviewing the authorities, said in Reg. v. Marlow (1964) 49 Cr.App.R.
49 , 54: "If the substance, in the quantity taken or by its nature, is an abortifacient, it cannot be
suggested... that it is anything but a noxious thing."
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Such acts of administration by the nurse are in direct contrast to those other things done by the
nurse which are not "administering," such as monitoring the patient's vital signs and keeping records
as described in the agreed facts. But section 58 further requires that for an offence to be committed
the noxious thing must be administered unlawfully, and the department contend that everything the
nurse does in the process of producing the miscarriage, and in particular acts which amount to
*811 administering a noxious thing, are lawful if the provisions of section 1 of the Abortion Act
1967 are satisfied.
It is of primary importance to have clearly in mind what that Act says. Its long title is: "An Act to
amend and clarify the law relating to termination of pregnancy by registered medical practitioners,"
and the marginal note to section 1 is "Medical termination of pregnancy." The section provides:
"... a person" - the protection is not limited to nurses - "shall not be guilty of an offence
under the law relating to abortion when a pregnancy is terminated by a registered
medical practitioner if two registered medical practitioners are of the opinion, formed
in good faith..."
In an emergency the requirement of the opinion of two registered medical practitioners is
unnecessary (section 1 (4)), but again there must be "the termination of a pregnancy by a registered
medical practitioner." The words "terminated by a registered medical practitioner" are by themselves
clear and unambiguous. The operative act or acts which have or are intended to have an abortifacient
effect must be done by or performed or carried out by a registered medical practitioner. But the
department say that the words should not be read literally for that would "defeat the obvious
intention of the legislation and... produce a wholly unreasonable result..." per Lord Reid in Luke v.
Inland Revenue Commissioners [1963] A.C. 557 , 577 quoted by Buckley L.J. in Western Bank Ltd.
v. Schindler [1977] Ch. 1 , 13. They should on the contrary be read as meaning that if the treatment
for the termination of a pregnancy is by a registered medical practitioner then no offence is
committed by the nurse (or person) who administers abortifacient or does any other act with intent
to procure the miscarriage.
On February 21, 1980, a letter was sent by the Department of Health and Social Security signed by
the chief nursing officer and the chief medical officer with a wide distribution which included regional,
area and district nursing officers under the heading "Termination of pregnancy by medical induction:
the role of the nurse or midwife and others who are not registered medical practitioners," which in
two annexes gave guidance on professional practice. The first half of the final paragraph of Annex
A has already been read by Lord Denning M.R. It continues:
"Whether any such actions have an abortifacient effect or render the process of
termination irreversible is irrelevant. From which it follows, for example, that, if the
other requirements of the Act of 1967 are satisfied, a nurse or midwife will be within
the protection of that Act in carrying out actions which in conformity with accepted
professional practice she is instructed to do by the registered medical practitioner
responsible for the termination, including acts which in themselves may have an
abortifacient effect or which could be said to render the process irreversible."
Annex B sets out the procedures which must be carried out by a registered medical practitioner
such as giving specific or precise instructions on some matters, written instructions on others and
that he or another *812 registered medical practitioner must be on call, and those which may be
performed by an appropriately skilled nurse or midwife when the registered medical practitioner
acting in accordance with these directions gives the orders. In short this direction or guidance, and,
indeed the basic argument of the department, seems to me to be that not only doctors' acts but
also doctors' orders will satisfy section 1 (1) of the Abortion Act 1967 .
Much has been said about the apparent anomalies of the strict or literal interpretation of section 1
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(1), that there is no defence for doctors or any person if (a) there is no pregnancy, or (b) the
pregnancy is not terminated, but with the wider "doctors' orders" interpretation the nurse would
apparently be committing an offence under section 58 if she failed to follow or misinterpreted the
instructions of the doctor or, indeed, if, possibly unknown to her, the prerequisite opinions of the
two registered medical practitioners had not been formed in good faith.
The department's case necessitates section 1(1) being read as meaning:
"If two registered medical practitioners are of opinion, formed in good faith etc., then
provided that the treatment for termination of the pregnancy is carried out in a hospital
vested in the Minister... or in a place approved for the time being etc., a person
participating or assisting in that treatment and who would otherwise be guilty of an
offence under the law relating to abortion as defined in this Act shall not be guilty of
such an offence when the treatment is by a registered medical practitioner."
The word "treatment" appears in three other subsections of the Abortion Act, viz. section 1 (3) :
"Except as provided by subsection (4) of this section," - the emergency subsection - "any treatment
for the termination of pregnancy must be carried out in a hospital...." This provision seems to me
to be much wider than and in direct contrast to the words "terminated by." In my opinion treatment
includes all that happens before the abortifacient is administered (or an instrument used), the
nursing as distinct from acts of administration during the administration or use and care after the
termination, and cannot be a guide to the interpretation of section 1 (1).
In the "Application of Act to visiting forces etc.," section 3 (1) reads:
"In relation to the termination of a pregnancy in a case where the following conditions
are satisfied, that is to say - (a) the treatment for termination of the pregnancy was
carried out in a hospital controlled by [visiting forces]: and (b) the pregnant woman
had at the time of the treatment a relevant association with [visiting forces]; and (c)
the treatment was carried out by a registered medical practitioner or a person who at
the time of the treatment was a member of [the visiting force] appointed as a medical
practitioner for that [visiting force] by the proper authorities of that [visiting force]...."
In (a) and (b) "treatment" is in direct contrast to the opening words "in relation to the termination
of a pregnancy." Termination takes place during and is a part of treatment. At first sight (c)
"treatment... carried out by a registered medical practitioner" gives some support to the liberal
construction *813 of section 1 (1), but it also is governed by the words "in relation to the
termination of a pregnancy;" it is for the application of the Act to a visiting force; and the provision
is to give the visiting force the utmost freedom to arrange its own medical affairs within the ambit
of our law.
Finally in the "conscience section," section 4: "... no person shall be under any duty... to participate
in any treatment authorised by this Act to which he has a conscientious objection:..." This does not
assist for if administration of an abortifacient or use of an instrument by a nurse on doctor's orders
has not been authorised by the Act, she cannot be under a duty to participate.
Under the Abortion Regulations 1968 (S.I. 1968 No. 390) , which the Minister of Health is required
to make by section 2 of the Act, a certificate of the opinion of two registered medical practitioners
must be given "before the commencement of the treatment for the termination of the pregnancy to
which it relates": regulation 3 (2) . So too must the opinion that termination is immediately
necessary to save life, under section 1 (4). but if impracticable it may be given after the termination:
regulation 3 (3) .
Under regulation 4 notices have to be given by the operating practitioner, that is "any practitioner
who terminates a pregnancy," within seven days of the termination - not, be it noted, within seven
days of the treatment after termination.
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In my opinion there is nothing in the Act or Regulations to indicate that the intention of Parliament
was other than that clearly expressed in the simple words "when a pregnancy is terminated by a
registered medical practitioner." They are words which have to be understood by ordinary mortals
in legislation on a topic which can arouse great emotions: see Paton v. British Pregnancy Advisory
Services Trustees [1979] Q.B. 276 , 278. Maybe Parliament never had in mind abortions by medical
induction which, as the Ministry letter indicates, has been employed in the past ten years; maybe a
decision that it can be done only by a registered medical practitioner and not by a nurse on doctor's
orders in any causative respect will result in a safe and easy method being less used with consequent
hardship or even greater danger to pregnant women. I do not know. Even if so, it is not for judges
"to read words into an Act of Parliament unless clear reason for it is to be found within the four
corners of the Act itself," per Lord Loreburn L.C. in Vickers, Sons & Maxim Ltd. v. Evans [1910] A.C.
444 , 445, cited by Viscount Dilhorne in Stock v. Frank Jones (Tipton) Ltd. [1978] 1 W.L.R. 231 ,
235A. Nor is a judge entitled to read an Act differently from what it says simply because he thinks
Parliament would have so provided had the situation been envisaged at that time. In the words of
Lord Simon of Glaisdale in Stock's case, at p. 237:
"... in a society living under the rule of law citizens are entitled to regulate their conduct
according to what a statute has said, rather than by what it was meant to say or by
what it would have otherwise said if a newly considered situation had been
envisaged;..."
There is no manifest absurdity; on the contrary the provision is clear and understandable. If the
intention had been to make lawful the acts of persons participating in or carrying out the termination
of a pregnancy on *814 doctors' orders that could have been expressly stated either as the
department suggest the section should be read, or by some other appropriate words; see the
Radioactive Substances Act 1948, section 3 (1) (a) : "... a person acting in accordance with the
directions of" a duly qualified general medical practitioner, or the Tattooing of Minors Act 1969,
section 1 : "... performed for medical reasons by a duly qualified medical practitioner or by a person
working under his direction..."
The Abortion Act 1967 requires the termination to be by the operative acts of the registered medical
practitioner himself; his orders are not enough. I, too, would allow the appeal.
Appeal allowed with costs here and below. Leave to appeal on terms that order for costs not
disturbed and no costs asked for in the House of Lords. R. C. W.
Representation
Solicitors: M. J. Scrivenger ; Treasury Solicitor .
The Department of Health appealed to the House of Lords.
Sir Ian Percival Q.C., S.-G., Simon D. Brown and Stephen Aitcheson for the department. Since the
13th century it has been an offence at common law to induce a miscarriage after a child has
quickened in the womb. The offence was embodied in sections 58 and 59 of the Offences against
the Person Act 1861 . The Abortion Act 1967 changed the law and the House of Lords must now
decide to what extent. Section 58 of the Act of 1861 stressed the intent to procure a miscarriage.
The Act was concerned with pills and potions and the health of the mother, but the intention was
the most important factor. If the accused knew or believed that the woman was or might be pregnant
and if the act was done by him with a view to terminating the pregnancy, the necessary intent was
present. (In the law of Scotland it was necessary to show that the woman was in fact pregnant.) Till
1967 the law was accepted as being embodied in Rex v. Bourne [1939] 1 K.B. 687 , 690, 691, 694695. Section 1 (1) of the Infant Life (Preservation) Act 1929 , prescribing punishment for child
destruction, contains a proviso that no person is to be found guilty of the offence unless it is proved
that the act was not done in good faith to preserve the mother's life, thus providing a defence to
what would otherwise be a criminal act.
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Section 1 of the Abortion Act 1967 similarly provides a defence to what would otherwise be a criminal
act. By section 5 (2) anything done to procure a miscarriage is unlawful unless authorised by section
1. By section 6 "the law relating to abortion" means sections 58 and 59 of the Act of 1861.
A letter dated February 21, 1980, from the Department of Health and Social Security to be circulated
to regional medical officers, area medical officers, regional nursing officers, area nursing officers and
district nursing officers related to the termination of pregnancy by medical induction and *815 the
role of nurses who were not registered medical practitioners. It advised that abortions by this
method were lawful provided that a registered medical practitioner decided on and initiated the
treatment and remained throughout responsible for its overall conduct in the sense that all the acts
needed after he had initiated the process to further it and bring it to its conclusion were performed
by appropriately skilled staff acting on his specific instructions, though not necessarily in his
presence.
The question is whether, assuming that the procedure adopted accords with everything laid down in
the letter, it comes within section 1 of the Act of 1967 so as to provide a defence for those concerned
with the treatment. Section 1 (1) defines the scope of the defence.
The process of termination of pregnancy by this method is initiated and supervised by a doctor. He
does not have to be at the bedside to supervise every step, but he must be available. In the ordinary
use of language that comes within the meaning of the relevant words in section 1 (1) "terminated
by a registered medical practitioner." When the pregnancy is terminated with maximum nurse
participation the process comes within the plain meaning of the words. Section 2 (1) (b) of the Act
of 1967 relating to the notice a doctor must give of a pregnancy which he has terminated indicates
what Parliament expected to be done. If a doctor failed to make the notification he could not rely on
the defence that the pregnancy was terminated by the nurse and not by him. It indicates that
"terminated" in section 1 (1) does not just mean the specific act of termination. Reliance is also
placed on section 4 dealing with conscientious objection to participation in treatment. The words
"under a duty" could not refer to a criminal offence. It all indicates that Parliament had treatment in
mind and was referring to it in the Act. In section 4 it was dealing with team work. In that context
it was providing a defence in respect of what would otherwise be a criminal offence. It was dealing
with modern developments of old techniques. Parliament was concerned with medical control of the
treatment and wished to ensure that all persons concerned should have a defence. A narrow or
restrictive meaning should not be put on the words of the Act.
The effect of the Act is that a person shall not be guilty of an offence contrary to sections 58 and 59
of the Act of 1861 when the acts which would have made him guilty of such an offence were done
by him as part of treatment for the termination of pregnancy by a registered medical practitioner
carried out in accordance with recognised medical practice and in a hospital vested in the Minister
of Health or the Secretary of State under the National Health Service Acts. Section 1, read with
section 4, clearly contemplates the participation of persons other than the doctor in the authorised
treatment. That participation would otherwise make them guilty of offences under the Act of 1861.
Section 1 (1) exonerates those engaged when treatment for the termination of a pregnancy is
carried out by a doctor. That covers cases when the treatment does not succeed, or the woman is
not in fact pregnant, or the doctor supervising allows a nurse to do some of the mechanical acts. It
avoids absurdities which might otherwise arise. It would be absurd if, when a bottle needed topping
up, the doctor had to come back *816 and do it. On a narrow construction of the Act only a doctor
could administer a pill or if anyone but the doctor pressed the necessary button there would be no
defence. When one looks at-the consequences of adopting the narrow construction, there is nothing
to support it.
Any imperfection in the wording of the Act is attributable to the fact that this was a private member's
bill and Parliament did not have the advantage of the full procedure in the case of other bills. But
the words used clearly mean that a termination of pregnancy should be within the Act if it is carried
out in accordance with the procedure normally adopted in National Health Service hospitals.
Treatment for termination of a pregnancy, which is what the words used mean, can be given whether
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or not there is in fact a pregnancy and whether or not it is actually terminated. Section 2 (1) (b)
cannot mean that the doctor must terminate the pregnancy himself in all the details of the treatment
He makes the decisions, inserts the catheter and then gives instructions according to the usual
practice. His decisions and his instructions constitute treatment by him. A prescription issued by a
doctor is medical treatment. A doctor is treating a disease if he directs the patient to be treated by
his nurse. If a highly skilled gynaecologist, having cut his hand, watched a highly skilled nurse
perform an operation, the act would be his act. It does not matter who does what so long as the
direction and supervision is by the doctor and what is done is according to normal recognised medical
practice.
The treatment in question in the present case is "treatment for the termination of pregnancy" "by
a registered medical practitioner" within section 1 of the Abortion Act 1967 .
Michael Spencer and Caroline Moore for the Royal College of Nursing. Throughout the respondents
have argued for the strict literal construction of the Act. That is the only safe approach in the
interests of all concerned to see that the law of abortion is complied with, that is, of the hospitals
and of the general public. The Act was meant to protect doctors who carried out abortions in the
conditions laid down by way of exception to an otherwise unchanged criminal law. In 1967 the only
methods of abortion known required acts to be done by the doctor or surgeon with his own hands.
The Act dealt with things as they were. It is the duty of the court to give effect to Parliament's
intention as it was expressed. The proper way to change the law on this point is by parliamentary
enactment rather than by an involved interpretation of this Act. There is nothing to prevent the
modern methods of abortion being carried out by a doctor, though this would make greater demands
on his time, but that makes things no worse than they were in 1967. The doctor's acts should not
be transferred to nurses, who would still continue to perform nursing functions. The process of
abortion has been confined to doctors by the Act of 1967 and there it should remain until Parliament
decides otherwise. The practice in modern hospitals is such that if a nurse is negligent in
administering the wrong concentration of a drug the civil responsibility is on her. If nurses are to be
engaged in this sort of work the law should expressly say so. In this case the decision of a strong
and experienced Court of Appeal should be regarded with respect. *817 The Act strikes a balance
between protecting the life of the unborn and the lifting of that protection in certain circumstances.
It is unique because it is the only one in which the taking of life is made permissible.
In section 1 (1) of the Act the relevant words are "when a pregnancy is terminated by a registered
medical practitioner," which mean exactly what they say and require that the actual acts of
termination should be carried out by a doctor. The treatment terminates the pregnancy. On the
words of the Act it would be unlawful if a doctor tried to terminate a pregnancy and failed so that a
baby was eventually born.
Paragraph 5 (3) of the agreed statement of facts as to clinical background deals with the process
of abortion by medical induction in which the causative factor is the administration of prostaglandin
or oxytocin. The actions of the nurse have, and are intended to have, an abortifacient effect. The
effect of the letter of February 21, 1980, was to maximise the nurse's functions and minimise those
of the doctor, so that the acts which terminate the pregnancy are all done by the nurse. The letter
was addressed to all hospitals controlled by the National Health Service and not to, nor was it
intended for, private clinics where many abortions are carried out. In the argument for the
appellants, reference was made to recognised medical practices, but medical practice can vary much
in different parts of the country and in different circumstances. The drill set out in the letter is
unlawful, though the House of Lords is not asked to lay down what is lawful. Section 7 of the Medical
Act 1956 defines a registered medical practitioner and it is not for the Department of Health to
substitute a person of less skill or lesser qualifications. Passing the catheter into the womb, the role
assigned to the doctor, has no abortifacient effect; and in 50 per cent. of cases it can be removed
with safety; the linking up of the drip feed to the catheter and the switching on of the pump by the
nurse does have an abortifacient effect. The monitoring of the woman has no effect, but the
replenishing of the infusion bottle and the adjustment of the flow rates by the nurse has. All the
positive acts are done by the nurse and not the doctor. The direction in the instructions of the
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Department of Health that a "registered medical practitioner must be available to be called if
required" may mean many different things in different hospitals. The necessary conclusion is that,
if the treatment must under the Act be carried out by a registered medical practitioner, the treatment
described (which would be permitted by the appellants' memorandum) was not. Reliance is placed
on the Abortion Regulations 1968 (S.I. 1968 No. 390) . The form of notification in Schedule 2
requires the "signature of practitioner who terminated pregnancy."
It is against this background that the House of Lords must construe the Act. It must not jump to the
conclusion that if the new method of abortion had been known in 1967 Parliament would have
sanctioned the practice recommended in the letter of February 21, 1980. It is accepted that the
purpose of the Act is partly social, to make abortion available when the conditions of the Act are
satisfied and to widen the circumstances in which it is available. But at the same time Parliament in
the public interest narrowed the conditions on which it could be *818 obtained: see sections 1 (4)
and 5 (2) of the Act, which narrow the defence allowed in Rex v. Bourne [1939] 1 K.B. 687 , 695. A
fully qualified and experienced midwife in a remote area who found a patient in danger of death
through pregnancy could have procured her abortion to save her life prior to the Act of 1967 and
relied by way of defence on the summing up in Rex v. Bourne. Since the coming into force of that
Act she could not do so because all abortions must be carried out by registered medical practitioners.
The Act of 1967 narrows the conditions for abortion, though it widens the circumstances. There is
no getting round section 5 (2). Moreover by section 5 (1) it is expressly made subject to the Infant
Life (Preservation) Act 1929 , which is concerned with preserving the life of a foetus capable of being
born alive.
At common law the destruction of a child in the womb was not murder but was a misdemeanour:
Archbold, Criminal Pleading Evidence and Practice , 40th ed. (1979), p. 1268, para. 2601. It was a
statutory offence under section 58 of the Offences against the Person Act 1861 . The effect of the
Act of 1967 was that one need no longer look at the common law to see whether anything had been
unlawfully done; one must look to see whether section 1 had been complied with. That section was
intended to lay down the circumstances in which an abortion can lawfully be performed and it
specified performance "by a registered medical practitioner." It uses ordinary English words. Section
3 (1) is not consistent with the appellant's contentions. Section 3 (1) (a) requires "the treatment for
termination of the pregnancy" to be "carried out" in a hospital controlled by the proper authorities.
Section 3 (1) (c) requires "the treatment" to be "carried out" by a registered medical practitioner.
In section 4 (1) and (3) it is evident that "treatment" is equated with the actual act terminating the
pregnancy, as also in section 1 (3). Participation in "any treatment" (e.g., preparation of drugs,
preliminary shaving of the woman, sterilising instruments) comes within the scope of the
conscientious objection contemplated. Section 1 (1) is aimed at doctors and section 4 (1) at anyone
else participating. There is a significant difference in wording, "any treatment" in section 1 (3) and
section 4 and "the treatment" in section 3 (1) (a). Section 3 (2) leaves visiting forces free to regulate
their own affairs, but even in their case the treatment must be carried out by a registered medical
practitioner (section 3 (1) (c)), i.e., with his own hand. The letter of February 21, seeks to substitute
a lesser degree of skill for a higher degree, but nothing less than the higher degree of skill is
permitted by the Act.
Parliament did not envisage the possibility of an "abortion" being carried out when there was in fact
no pregnancy. Otherwise one would have expected a provision akin to section 5 (2) of the Cancer
Act 1939 . Parliament did not apply its mind to the possibility of an attempt to terminate a pregnancy
when the woman was not in fact pregnant. Till that Act, Parliament had little experience of
terminations of pregnancy because till then abortions were only allowed within the terms of Rex v.
Bourne [1939] 1 K.B. 687 . The Act is not to be interpreted by its anomalies so as to interpret out
of it the requirements which Parliament intended to be in it. The appellant's interpretation of the Act
would *819 involve a total redrafting of section 1. If Parliament had meant that it was enough if
an abortion was carried out under the supervision of a doctor it would have said so.
For the letter of February 21, 1980 to be correct in law (assuming that a medical termination was
carried out by induction based on the maximum nurse and minimum doctor participation) it would
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be necessary to read into the relevant words of the Act, after "by a registered medical practitioner,"
the words "or by a suitably qualified person acting under his direction." Had Parliament intended the
Act to be read in that way it would have said so: see section 3 of the Radioactive Substances Act
1948 , section 9 of the Therapeutic Substances Act 1956 , section 1 (1) and (2) of the Drugs
(Prevention of Misuse) Act 1964 , section 58 (2) (b) of the Medicines Act 1968 , section 1 of the
Tattooing of Minors Act 1969 and regulation 7 of the Misuse of Drugs Regulations 1973 . These
enactments are to be compared with and distinguished from section 1 (4) of the Human Tissue Act
1961 and the relevant words of the Abortion Act 1967 . It is not right that words should be read into
this Act since they are not there.
Where is the line to be drawn? "Recognised medical practice" can vary very much from one place to
another. Private clinics can arrange their practice to suit their own purposes. "Treatment by a doctor"
is a wide phrase. If a doctor sent a patient to a physiotherapist, the patient would say that it was
the physiotherapist who was carrying out the treatment. Section 1 (1) of the Act of 1967 does not
cover a doctor who does nothing with his own hands. In some future development a woman for an
abortion might take only a pill. The mere prescription of the pill by a doctor would not be covered
by section 1 (1). Stock v. Frank Jones (Tipton) Ltd. [1978] 1 W.L.R. 231 , 234-235, 236-237,
indicates that the House of Lords may only depart from the plain wording of an Act if it produces an
overwhelming anomaly. But here there is an overwhelming requirement that an abortion should be
carried out by a doctor. The only safe approach is to say that all stages of an abortion must be in
the hands of a registered medical practitioner.
Sir Ian Percival Q.C., S.-G. in reply. There is no reason for thinking that Parliament when it passed
the Act of 1967 did not have in mind medical progress. If the words of an Act are capable of more
than one meaning the court can choose between potential meanings which throw light on what the
draftsman meant: Stock' case [1978] 1 W.L.R. 231 , 236. This case turns on what is meant by
"carried out by." It is not necessary for the appellant's purpose to read in the words suggested by
the respondents. Even if they were read in the question of the meaning of "carried out by" would
remain. The respondents' contention, shutting the door to this treatment, cannot be within the
scheme of the Act. The Act must be read in accordance with technical progress. The treatment is
carried out on the specific instructions of a registered medical practitioner. The doctor who provides
the means and makes the actual decision actually terminates the pregnancy; the nurse participates.
What is done constitutes termination of pregnancy by a registered medical practitioner.
*820
December 9. LORD WILBERFORCE, at the conclusion of the argument, said: Their Lordships
appreciate the urgency of this matter and think it right in the interests of the Health Service to
announce their decision. They will be reporting to the House that the appeal should be allowed and
the decision of Woolf J. restored. This is an unusual course and should not be taken as a precedent.
Their Lordships took time to formulate their opinions.
February 5. LORD WILBERFORCE.
My Lords, on October 27, 1967, Parliament passed the Abortion Act 1967 . Its long title describes
it as an Act "to amend and clarify the law relating to termination of pregnancy by registered medical
practitioners. "
Before the Act was passed it was an offence (sc. felony) for Any Person with intent to procure the
miscarriage of any woman, whether she be or be not with child, unlawfully to administer to her or
cause to be taken by her any poison or other noxious thing or unlawfully to use any instrument or
other means whatsoever with the like intent: Offences against the Person Act 1861, section 58 .
Further, the Infant Life (Preservation) Act 1922 created the offence of child destruction in relation
to a child capable of being born alive. Those provisions thus affected not only doctors, but nurses,
midwives, pharmacists and others: they were in operation in 1967, subject only to the defence
judicially given to the doctor in Rex v. Bourne [1939] 1 K.B. 687 .
Section 1 of the Act of 1967 created a new defence, available to any person who might be liable
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under the existing law. It is available: (i) "when a pregnancy is terminated by a registered medical
practitioner" - these are the words of the Act; (ii) when certain other conditions are satisfied,
including the expressed opinion of two registered medical practitioners as to the risks (specified in
paragraphs (a) and (b)) to mother, or child, or existing children, and the requirement that the
treatment for the termination of pregnancy must be carried out in a National Health Service hospital
or other approved place. The present case turns upon the meaning to be given to condition (i).
The issue relates to a non-surgical procedure of medical induction by the use of a drug called
prostaglandin. This operates upon the mother's muscles so as to cause contractions (similar to those
arising in normal labour) which expel the foetus from the womb. It is used during the second
trimester. The question has been raised by the Royal College of Nursing as to the participation of
nurses in this treatment, particularly since nurses can be called upon (subject to objections of
conscience which are rarely invoked) to carry it out. They have felt, and express grave concern as
to the legality of doing so and seek a declaration, that a circular issued by the Department of Health
and Social Security, asserting the lawfulness of the nurses' participation, is wrong in law.
There is an agreed statement as to the nature of this treatment and the part in it played by the
doctors and the nurses or midwives. Naturally this may vary somewhat from hospital to hospital,
but, for the purpose of the present proceedings, the assumption has to be made of maximum
*821 nurse participation, i.e. that the nurse does everything which the doctor is not required to
do. If that is not illegal, participation of a lesser degree must be permissible.
1. The first step is for a thin catheter to be inserted via the cervix into the womb so as to arrive at,
or create, a space between the wall of the womb and the amniotic sac containing the foetus. This is
necessarily done by a doctor. It may, sometimes, of itself bring on an abortion, in which case no
problem arises: the pregnancy will have been terminated by the doctor. If it does not, all subsequent
steps except number four may be carried out by a nurse or midwife. The significant steps are as
follows - I am indebted to Brightman L.J. for their presentation: 2. The catheter (i.e. the end
emerging from the vagina) is attached, probably via another tube, to a pump or to gravity feed
apparatus. The function of the pump or apparatus is to propel or feed the prostaglandin through the
catheter into the womb. The necessary prostaglandin infusion is provided and put into the apparatus.
* 3. The pump is switched on, or the drip valve is turned, thus causing the prostaglandin to enter
the womb. 4. The doctor inserts a cannula into a vein. * 5. An oxytocin drip feed is linked up with
the cannula. The necessary oxytocin (a drug designed to help the contractions) is supplied for the
feed. 6. The patient's vital signs are monitored, so is the rate of drip or flow. * 7. The flow rates of
both infusions are, as necessary, adjusted. * 8. Fresh supplies of both infusions are added as
necessary. 9. The treatment is discontinued after discharge of the foetus, or expiry of a fixed period
(normally 30 hours) after which the operation is considered to have failed. The only steps in this
process which can be considered to have a direct effect leading to abortion (abortifacient steps) are
those asterisked. They are all carried out by the nurse, or midwife. As the agreed statement records
"the causative factor in inducing... the termination of pregnancy is the effect of the administration
of prostaglandin and/or oxytocin and not any mechanical effect from the insertion of the catheter or
cannula." All the above steps 2-9 are carried out in accordance with the doctor's instructions - which
should, as regards important matters, be in writing. The doctor will moreover be on call, but may in
fact never be called.
On these facts the question has to be answered: has the pregnancy been terminated by the doctor;
or has it been terminated by the nurse; or has it been terminated by doctor and nurse? I am not
surprised that the nurses feel anxiety as to this.
In attempting to answer it, I start from the point that in 1967 - the date of the Act - the only
methods used to produce abortions were surgical methods; of these there were several varieties,
well enough known. One of these was by intra-amniotic injection - i.e. the direct injection of glucose
or saline solutions into the amniotic sac. It was not ideal or, it appears, widely used. Parliament
must have been aware of these methods and cannot have had in mind a process where abortifacient
agents were administered by nurses. They did not exist. Parliament's concern must have been to
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prevent existing methods being carried out by unqualified persons and to insist that they should be
carried out by doctors. For these reasons Parliament no doubt used the words, in *822 section 1
(1) "... pregnancy... terminated by a registered medical practitioner..."
Extra-amniotic administration of prostaglandin was first reported in 1971, and was soon found to
have advantages. It involves, or admits, as shown above, direct and significant participation by
nurses in the abortifacient steps. Is it covered by the critical words?
In interpreting an Act of Parliament it is proper, and indeed necessary, to have regard to the state
of affairs existing, and known by Parliament to be existing, at the time. It is a fair presumption that
Parliament's policy or intention is directed to that state of affairs. Leaving aside cases of omission
by inadvertence, this being not such a case, when a new state of affairs, or a fresh set of facts
bearing on policy, comes into existence, the courts have to consider whether they fall within the
Parliamentary intention. They may be held to do so, if they fall within the same genus of facts as
those to which the expressed policy has been formulated. They may also be held to do so if there
can be detected a clear purpose in the legislation which can only be fulfilled if the extension is made.
How liberally these principles may be applied must depend upon the nature of the enactment, and
the strictness or otherwise of the words in which it has been expressed. The courts should be less
willing to extend expressed meanings if it is clear that the Act in question was designed to be
restrictive or circumscribed in its operation rather than liberal or permissive. They will be much less
willing to do so where the subject matter is different in kind or dimension from that for which the
legislation was passed. In any event there is one course which the courts cannot take, under the
law of this country; they cannot fill gaps; they cannot by asking the question "What would Parliament
have done in this current case - not being one in contemplation - if the facts had been before it?"
attempt themselves to supply the answer, if the answer is not to be found in the terms of the Act
itself.
In my opinion this Act should be construed with caution. It is dealing with a controversial subject
involving moral and social judgments on which opinions strongly differ. It is, if ever an Act was, one
for interpreting in the spirit that only that which Parliament has authorised on a fair reading of the
relevant sections should be held to be within it. The new (post-1967) method of medical induction
is clearly not just a fresh species or example of something already authorised. The Act is not for
"purposive" or "liberal" or "equitable" construction. This is a case where the courts must hold that
anything beyond the legislature's fairly expressed authority should be left for Parliament's fresh
consideration.
Having regard particularly to the Act's antecedents and the state of affairs existing in 1967, which
involved surgical action requiring to be confined to termination by doctors alone, I am unable to
read the words "pregnancy terminated by a registered medical practitioner" as extended or
extensible to cover cases where other persons, whether nurses, or midwives, or even lay persons,
play a significant part in the process of termination. That a process in which they do so may be
reliable, and an improvement upon existing surgical methods, may well be the case - we do not in
fact even know this. It may be desirable that doctors' time *823 should be spared from directly
participating in all the stages of the abortifacient process: it may be (though there are very many
hospitals and nursing homes in the United Kingdom not all with the same high standards) that
nurses, midwives, etc., may be relied upon to carry out the doctor's instructions accurately and well.
It may be that doctors, though not present, may always be available on call. All this may, though
with some reservation, be granted, but is beside the point. With nurse, etc., participation, to the
degree mentioned, a new dimension has been introduced: this should not be sanctioned by judicial
decision, but only by Parliament after proper consideration of the implications and necessary
safeguards.
The appellants contend that the Act is framed in sufficiently wide terms to authorise what the
department says is lawful.
Their contention, or that which they were willing to accept as their contention during argument, was
that the words "pregnancy is terminated by a registered medical practitioner" mean "pregnancy is
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terminated by treatment of a registered medical practitioner in accordance with recognised medical
practice." But, with all respect, this is not construction: it is rewriting. And, moreover, it does not
achieve its objective. I could perhaps agree that a reference to treatment could fairly be held to be
implied: no doubt treatment is necessary. But I do not see that this alone carries the matter any
further: it must still be treatment by the registered medical practitioner. The additional words, on
the other hand, greatly extend the enactment, and it is they which are supposed to introduce nurse
participation. But I cannot see that they do this. For a nurse to engage in abortifacient acts cannot,
when first undertaken, be in accordance with recognised practice, when it is the legality of the
practice that is in question. Nor can the recognised practice (if such there is, though the agreed
statements do not say so), by which nurses connect up drips to supply glucose or other life-giving
or preserving substances cover connecting up drips, etc., giving substances designed to destroy life
- for that is what they are. The added words may well cover the provision of swabs, bandages, or
the handing up of instruments - that would only be common sense: they cannot be used as cover
for a dimensional extension of the Act.
The argument for the department is carried even further than this, for it is said that the words "when
a pregnancy is terminated by a registered medical practitioner" mean "when treatment for the
termination of pregnancy is carried out by a registered medical practitioner." This is said to be
necessary in order to cover the supposed cases where the treatment is unsuccessful, or where there
is no pregnancy at all. The latter hypothesis I regard as fanciful: the former, if it was Parliament's
contemplation at all in 1967 (for failures under post-1967 methods are not in point) cannot be
covered by any reasonable reading of the words. Termination is one thing: attempted and
unsuccessful termination wholly another. I cannot be persuaded to embark upon a radical
reconstruction of the Act by reference to a fanciful hypothesis or an improbable casus omissus.
It is significant, as Lord Denning M.R. has pointed out, that recognised *824 language exists and
has been used, when it is desired that something shall be done by doctors with nurse participation.
This takes the form "by a registered medical practitioner or by a person acting in accordance with
the directions of any such practitioner." This language has been used in four Acts of Parliament
(listed by Lord Denning M.R.), three of them prior to the Act of 1967, all concerned with the
administration of substances, drugs or medicines which may have an impact upon the human body.
It has not been used, surely deliberately, in the present Act. We ought to assume that Parliament
knew what it was doing when it omitted to use them.
In conclusion, I am of opinion that the development of prostaglandin induction methods invites, and
indeed merits, the attention of Parliament. It has justly given rise to perplexity in the nursing
profession. I doubt whether this will be allayed when it is seen that a majority of the judges who
have considered the problem share their views. On this appeal I agree with the judgments in the
Court of Appeal that an extension of the Act of 1967 so as to include all persons, including nurses,
involved in the administration of prostaglandin is not something which ought to, or can, be effected
by judicial decision. I would dismiss the appeal.
LORD DIPLOCK.
My Lords, this appeal arises out of a difference of opinion between the Royal College of Nursing of
the United Kingdom and the Department of Health and Social Security about the true construction
of the Abortion Act 1967 and, in particular, whether it renders lawful the part played by hospital
nurses in the treatment for terminating pregnancies by a method known as medical induction. This
comparatively modern method which was unknown as a means of bringing about an abortion at the
time of the passing of the Act, has come into increasing use for terminating pregnancies in the
second trimester (i.e. between the twelfth and twenty-fourth weeks), when it presents less risk to
the patient than those methods more exclusively surgical in character that were formerly employed.
The treatment takes considerably longer than the purely surgical methods; the average duration is
18 hours with a maximum of 30 hours and the part played by nurses in the treatment is of greater
importance as well as longer than when a purely surgical method is employed.
The Abortion Act 1967 which it falls to this House to construe is described in its long title as "An Act
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to amend and clarify the law relating to termination of pregnancy by registered medical
practitioners." The legalisation of abortion, at any rate in circumstances in which the termination of
the pregnancy is not essential in order to save the mother's life, is a subject on which strong moral
and religious convictions are held; and these convictions straddle the normal party political lines.
That, no doubt, is why the Act, which incorporates a "conscience clause" that I shall be quoting later,
started its parliamentary life as a private member's bill and, maybe for that reason, it lacks that
style and consistency of draftsmanship both internal to the Act itself and in relation to other statutes
which one would expect to find in legislation that had its origin in the office of parliamentary counsel.
*825
Whatever may be the technical imperfections of its draftsmanship, however, its purpose in my view
becomes clear if one starts by considering what was the state of the law relating to abortion before
the passing of the Act, what was the mischief that required amendment, and in what respect was
the existing law unclear.
The Abortion Act 1967 applies to England and to Scotland; but your Lordships are not concerned
with Scotland in the instant case. In England the "law relating to abortion" which it was the purpose
of the Act to amend and clarify, is defined in section 6 of the Act itself as meaning " sections 58 and
59 of the Offences against the Person Act 1861 ." The relevant section, which it is desirable to set
out verbatim, is section 58. ( Section 59 deals with supplying abortifacients and instruments for use
in unlawful abortions.)
"Every woman, being with child, who, with intent to procure her own miscarriage, shall
unlawfully administer to herself any poison or other noxious thing, or shall unlawfully
use any instrument or other means whatsoever with the like intent, and whosoever,
with intent to procure the miscarriage of any woman, whether she be or be not with
child, shall unlawfully administer to her or cause to be taken by her any poison or other
noxious thing, or shall unlawfully use any instrument or other means whatsoever with
the like intent, shall be guilty of felony, and being convicted thereof shall be liable, at
the discretion of the court, to be kept in penal servitude for life, or for any term not
less than three years, - or to be imprisoned for any term not exceeding two years, with
or without hard labour, and with or without solitary confinement."
An offence under the section is committed whether the woman was in fact pregnant or not, and, if
pregnant, whether or not the attempt to terminate it was in fact successful. The section on the face
of it draws no distinction between terminations of pregnancies carried out on the advice of medicallyqualified gynaecologists or obstetricians and those "back-street abortions" that figured so commonly
in the calendars of assizes in the days when I was trying crime; but the requirement that in order
to constitute the offence the abortifacient must be administered or the instrument used "unlawfully,"
indicated that there might be circumstances in which it would be lawful to bring about an abortion.
It had long been generally accepted that abortion was lawful where it was necessary to save the
pregnant woman's life; but what circumstances, if any, short of this legitimised termination of a
pregnancy does not appear to have attracted judicial notice until, in 1938, the matter was put to a
sagaciously selected test by Mr. Aleck Bourne, a well-known obstetrical surgeon at St. Mary's
Hospital, London. He there performed an abortion on a 14-year-old girl who was seven weeks
pregnant as a consequence of being the victim of a particularly brutal rape. He invited prosecution
for having done so. The evidence at his trial was that if the girl had been allowed to bear the child
she would "be likely to have become a mental wreck."
The summing up by Macnaghten J. in Rex v. Bourne [1939] 1 K.B. 687 , resulted in an acquittal.
So the correctness of his statement of the *826 law did not undergo examination by any higher
authority. It still remained in 1967 the only judicial pronouncement on the subject. No disrespect is
intended to that eminent judge and former head of my old chambers, if I say that his reputation is
founded more upon his sturdy common sense than upon his lucidity of legal exposition. Certainly
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his summing up, directed as it was to the highly exceptional facts of the particular case, left plenty
of loose ends and ample scope for clarification. For instance, his primary ruling was that the onus
lay upon the Crown to satisfy the jury that the defendant did not procure the miscarriage of the
woman in good faith for the purpose only of "preserving her life" but this requirement he suggested
to the jury they were entitled to regard as satisfied if the probable consequence of the continuance
of the pregnancy would be to "make the woman a physical or mental wreck" - a vivid phrase
borrowed from one of the witnesses but unfortunately lacking in precision. The learned judge would
appear to have regarded the defence as confined to registered medical practitioners, and there is a
passage in his summing up which suggests that it is available only where the doctor's opinion as to
the probable dire consequences of the continuance of the pregnancy was not only held bona fide but
was also based on reasonable grounds and adequate knowledge - an objective test which it would
be for the jury to determine whether, upon the evidence adduced before them, it was satisfied or
not.
Such then was the unsatisfactory and uncertain state of the law that the Abortion Act 1967 was
intended to amend and clarify. What the Act sets out to do is to provide an exhaustive statement of
the circumstances in which treatment for the termination of a pregnancy may be carried out lawfully.
That the statement, which is contained in section 1 , is intended to be exhaustive, appears from
section 5 (2) :
"For the purposes of the law relating to abortion, anything done with intent to procure
the miscarriage of a woman is unlawfully done unless authorised by section I of this
Act."
This sets aside the interpretation placed by Macnaghten J. in Rex v. Bourne [1939] 1 K.B. 687 upon
the word "unlawfully" in sections 58 and 59 of the Offences against the Person Act 1861 .
The "conscience clause" which I have already mentioned is also worth citing before coming to the
crucial provisions of section 1. It is section 4 (1) and so far as is relevant for the present purposes
it reads:
"... no person shall be under any duty, whether by contract or by any statutory or other
legal requirement, to participate in any treatment authorised by this Act to which he
has a conscientious objection:"
Section 1 itself needs to be set out in extenso:
"(1) Subject to the provisions of this section, a person shall not be guilty of an offence
under the law relating to abortion when a pregnancy is terminated by a registered
medical practitioner if two registered medical practitioners are of the opinion, formed
in good faith - (a) that the continuance of the pregnancy would involve risk to the life
of the pregnant woman, or of injury to the physical or *827 mental health of the
pregnant woman or any existing children of her family, greater than if the pregnancy
were terminated; or (b) that there is a substantial risk that if the child were born it
would suffer from such physical or mental abnormalities as to be seriously
handicapped. (2) In determining whether the continuance of a pregnancy would involve
such risk of injury to health as is mentioned in paragraph (a) of subsection (1) of this
section, account may be taken of the pregnant woman's actual or reasonably
foreseeable environment. (3) Except as provided by subsection (4) of this section, any
treatment for the termination of pregnancy must be carried out in a hospital vested in
the Minister of Health or the Secretary of State under the National Health Service Acts,
or in a place for the time being approved for the purposes of this section by the said
Minister or the Secretary of State. (4) Subsection (3) of this section and so much of
subsection (1) as relates to the opinion of two registered medical practitioners, shall
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not apply to the termination of a pregnancy by a registered medical practitioner in a
case where he is of the opinion, formed in good faith, that the termination is
immediately necessary to save the life or to prevent grave permanent injury to the
physical or mental health of the pregnant woman."
My Lords, the wording and structure of the section are far from elegant, but the policy of the Act, it
seems to me, is clear. There are two aspects to it: the first is to broaden the grounds upon which
abortions may be lawfully obtained; the second is to ensure that the abortion is carried out with all
proper skill and in hygienic conditions. Subsection (1) which deals with the termination of
pregnancies other than in cases of dire emergency consists of a conditional sentence of which a
protasis, which is a condition precedent to be satisfied in order to make the abortion lawful at all is
stated last: "if two registered medical practitioners are of the opinion," etc. It is this part of the
subsection which defines the circumstances which qualify a woman to have her pregnancy
terminated lawfully. They are much broader than the circumstances stated in Rex v. Bourne [1939]
1 K.B. 687 ; and since they depend upon comparative risks of injury to the physical or mental health
of the pregnant woman, existing children of the family and to the possibility of abnormalities in the
yet unborn child, they are matters of expert medical opinion. The Act leaves them to be decided not
by the jury upon expert evidence after the event as in Rex v. Bourne but in advance by two registered
medical practitioners whose opinion as to the existence of the required circumstances, if formed in
good faith and duly certified under section 2 (1) (a) . renders treatment for the termination of the
pregnancy lawful if it is carried out in accordance with the requirements of the Act.
I have spoken of the requirements of the Act as to the way in which "treatment for the termination
of the pregnancy" is to be carried out rather than using the word "termination" or "terminated" by
itself, for the draftsman appears to use the longer and the shorter expressions indiscriminately, as
is shown by a comparison between subsections (1) and (3) of section 1 , and by the reference in
the conscience clause to *828 "treatment authorised by this Act." Furthermore if "termination" or
"terminated" meant only the event of miscarriage and not the whole treatment undertaken with that
object in mind, lack of success, which apparently occurs in one to two per cent. of cases, would
make all who had taken part in the unsuccessful treatment guilty of an offence under section 58 or
59 of the Offences against the Person Act 1861 . This cannot have been the intention of Parliament.
The requirement of the Act as to the way in which the treatment is to be carried out, which in my
view throws most light upon the second aspect of its policy and the true construction of the phrase
in subsection (1) of section 1 which lies at the root of the dispute between the parties to this appeal,
is the requirement in subsection (3) that, except in cases of dire emergency, the treatment must be
carried out in a National Health Service hospital (or private clinic specially approved for that purpose
by the minister). It is in my view evident that in providing that treatment for termination of
pregnancies should take place in ordinary hospitals, Parliament contemplated that (conscientious
objections apart) like other hospital treatment, it would be undertaken as a team effort in which,
acting on the instructions of the doctor in charge of the treatment, junior doctors, nurses, paramedical and other members of the hospital staff would each do those things forming part of the
whole treatment, which it would be in accordance with accepted medical practice to entrust to a
member of the staff possessed of their respective qualifications and experience.
Subsection (1) although it is expressed to apply only "when a pregnancy is terminated by a
registered medical practitioner" (the subordinate clause that although introduced by "when" is
another protasis and has caused the differences of judicial opinion in the instant case) also appears
to contemplate treatment that is in the nature of a team effort and to extend its protection to all
those who play a part in it. The exoneration from guilt is not confined to the registered medical
practitioner by whom a pregnancy is terminated, it extends to any person who takes part in the
treatment for its termination.
What limitation on this exoneration is imposed by the qualifying phrase: "when a pregnancy is
terminated by a registered medical practitioner"? In my opinion in the context of the Act, what it
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requires is that a registered medical practitioner, whom I will refer to as a doctor, should accept
responsibility for all stages of the treatment for the termination of the pregnancy. The particular
method to be used should be decided by the doctor in charge of the treatment for termination of
the pregnancy, he should carry out any physical acts, forming part of the treatment, that in
accordance with accepted medical practice are done only by qualified medical practitioners, and
should give specific instructions as to the carrying out of such parts of the treatment as in accordance
with accepted medical practice are carried out by nurses or other members of the hospital staff
without medical qualifications. To each of them, the doctor, or his substitute, should be available to
be consulted or called on for assistance from beginning to end of the treatment. In other words, the
doctor need not do everything with his own hands; the requirements *829 of the subsection are
satisfied when the treatment for termination of a pregnancy is one prescribed by a registered medical
practitioner carried out in accordance with his directions and of which a registered medical
practitioner remains in charge throughout.
My noble and learned friend, Lord Wilberforce, has described the successive steps taken in the
treatment for termination of pregnancies in the third trimester by medical induction; and the parts
played by registered medical practitioners and nurses respectively in the carrying out of the
treatment. This treatment satisfies the interpretation that I have placed upon the requirement of
section 1 of the Act. I would accordingly allow the appeal and restore the declaration made by Woolf
J.
LORD EDMUND-DAVIES.
My Lords, this House is presently concerned with the task of interpreting the Abortion Act 1967 ,
and of applying the interpretation to the termination of pregnancy by a certain type of medical
induction. It is well known that the Act was the outcome of a private member's Bill dealing with a
highly controversial topic and, as enacted, it is the product of considerable compromise between
violently opposed and emotionally charged views. In its preamble it is described as an Act "to amend
and clarify the law relating to termination of pregnancy by registered medical practitioners," and,
far from simply enlarging the existing abortion facilities, in the true spirit of compromise it both
relaxed and restricted the existing law.
Before turning to the Act of 1967, reference must be made to the still-extant section 58 of the
Offences against the Person Act 1861 . [His Lordship read section 58 of the Act of 1861 and section
1 of the Abortion Act 1967 and continued:] Although no reference to an act done "for the purpose
only of preserving the life of the mother" appears in the Act of 1861, it does appear in the Infant
Life (Preservation) Act 1929, section 1 . and in Rex v. Bourne [1939] 1 K.B. 687 Macnaghten J.
expressed the view that it represented the common law and should be read into the earlier Act by
reason of the inclusion of the adverb "unlawfully" in section 58. In that case a surgeon had aborted
a girl who had been shockingly raped and, although there was no immediate danger to her life, he
claimed that she would have become a physical and mental wreck had her pregnancy been allowed
to continue. Directing the jury on a charge of contravening section 58, the learned judge said at pp.
693-694 of "preserving the life of the mother" that the words
"ought to be construed in a reasonable sense, and, if the doctor is of opinion, on
reasonable grounds and with adequate knowledge, that the probable consequence of
the continuance of the pregnancy will be to make the woman a physical or mental
wreck, the jury are quite entitled to take the view that the doctor who, under those
circumstances and in that honest belief, operates, is operating for the purpose of
preserving the life of the mother."
Following the acquittal in that case, the courts did not closely scrutinise the evidence of danger to
life itself; see, for example, Reg. v. Newton and Stungo [1958] Crim.L.R. 469 where, on a section
58 charge of unlawfully using an instrument, Ashworth J. directed the jury that: *830
"Such use of an instrument is unlawful unless the use is made in good faith for the
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purpose of preserving the life or Health of the woman," and added, "When I say 'health'
I mean not only her physical health but also her mental health."
My Lords, such was the law and practice when the Abortion Act reached the statute book in 1967,
section 6 thereof providing that the phrase "the law relating to abortion" used in sections 1 (1) and
5 (2) thereof means " sections 58 and 59 of the Offences against the Person Act 1861 , and any rule
of law relating to the procurement of abortion." and section 5 (2) itself provided that: "For the
purposes of the law relating to abortion, anything done with intent to procure the miscarriage of a
woman is unlawfully done unless authorised by section 1 of this Act."
Details of the termination of pregnancy by administering prostaglandin are the subject of a helpful
agreed statement prepared by the parties to this litigation. This has been examined in the speech
of my noble and learned friend, Lord Wilberforce, and it is sufficient for me to say that the Royal
College of Nursing, while adopting a neutral role, were and remain deeply disturbed as to the legality
of the marked degree of participation by nurses in the challenged method of induction and therefore
sought clarification and guidance from the court. They must ruefully regard such judicial illumination
as has hitherto been vouchsafed them, Woolf J. pronouncing "without any doubt at all" that the
prostaglandin procedure is permissible within the terms of section 1 of the Act of 1967, while the
Court of Appeal unanimously held that it is not, Lord Denning M.R. declaring emphatically ante, p.
806F that
"the continuous act of administering prostaglandin from the moment it is started until
the unborn child is expelled from the mother's body... must be done by the doctor
personally. It is not sufficient that it is done by a nurse when he is not present."
My Lords, I have already commented that it would be quite wrong to regard the Act of 1967 as
wholly permissive in character, for it both restricted and amplified the existing abortion law. It
amplified "the law relating to abortion" as declared in Rex v. Bourne [1939] 1 K.B. 687 by extending
it in section 1 (1) (a) to cases where "the continuance of the pregnancy would involve risk to the...
physical or mental health of... any existing children of [the pregnant woman's] family, greater than
if the pregnancy were terminated"; and in section 1 (1) (b) by including the case of "substantial risk
that if the child were born it would suffer from such physical or mental abnormalities as to be
seriously handicapped."
On the other hand, the Act also restricted the Bourne law in several ways. The pregnancy must now
be terminated "by a registered medical practitioner," and this even if, in the words of section 1 (4)
, "the termination is immediately necessary to save the life or to prevent grave permanent injury to
the physical or mental health of the pregnant woman," whereas Rex v. Bourne imposed no such
restriction in the cases predicated, and a qualified doctor who was not a registered medical
practitioner could have invoked the decision in that case. And, save in *831 those circumstances
of urgency, abortive treatment is required under the Act to be carried out in such premises as are
designated in section 1 (3) and section 3 . Again, in the forefront is the requirement in section 1 (1)
of the opinion of two doctors that the risks indicated in (a) or (b) are involved if pregnancy were
allowed to go full term. and a further practical (though not legal) restriction was imposed by the
requirement under section 2 (1) (b) that the "registered medical practitioner who terminated a
pregnancy [must] give notice of the termination and such other information relating to the
termination as may be... prescribed."
My Lords, the opening words of section 1 (1) are clear and simple, clear to understand and simple
to apply to the only abortive methods professionally accepted in 1967 when the Act was passed.
Save in grave emergency, only a qualified doctor or surgeon could then lawfully perform the
orthodox surgical acts, and the statute could have had no other person in mind. Then should section
1 be interpreted differently now that abortive methods undreamt of in 1967 have since been
discovered and become widely applied? The answer must be that its simple words must not be
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distorted in order to bring under the statutory umbrella medical procedures to which they cannot
properly be applied, however desirable such an extension may be thought to be. The extra-amniotic
procedure first reported in 1971 has already been described by my noble and learned friend, Lord
Wilberforce, and it is sufficient for my present purpose to quote merely the final paragraph of the
"agreed statement as to clinical background":
"It will be appreciated that in the medical induction process the causative factor in
inducing the labour and hence the termination of pregnancy is the effect of the
administration of prostaglandin and/or oxytocin and not any mechanical effect from
the insertion of the catheter or cannula. In that the nurse does, on the instructions of
the doctor, commence or augment the flow of prostaglandin or oxytocin, and even
sometimes effect the connection between the already inserted catheter and the prostin
pump and the already intravenous cannula and the oxytocin infusion, her role in the
process does include acts which have, and are intended to have, an abortifacient effect.
Such acts are, however, always carried out in accordance with the specific instructions
of the registered medical practitioner."
In my judgment, it is impossible to regard an abortion resulting from such procedure as one
"terminated by a registered medical practitioner," for the acts indispensable to termination are in
many such cases performed not by the doctor but by the nurses over a long period of hours after
the doctor last saw the pregnant woman. And, despite the claims of the Solicitor-General that he
sought simply to give the statutory words "their plain and ordinary meaning," he substantially
departed from that approach by submitting that they should be read as meaning "terminated by
treatment for the termination of pregnancy carried out by a registered medical practitioner in
accordance with recognised medical practice." My Lords, this is redrafting with a vengeance. and
even were it permissible, it would still remain to consider what part the doctor *832 played in the
treatment, in order to ensure that it was not so remote from the termination as to make it impossible
to say in any realistic sense that it was he who terminated the pregnancy. I am in respectful
agreement with Brightman L.J., who said of the extra-amniotic procedure: ante, p. 810A-B.
"... it would be a misuse of language... to describe such a treatment for termination of
a pregnancy as 'carried out by' a registered medical practitioner - however detailed
and precise the written instructions given by the registered medical practitioner to the
nurse... The true analysis is that the doctor has provided the nurse with the means to
terminate the pregnancy , not that the doctor has terminated the pregnancy."
It is true that the word "treatment" is to be found in several places in the Act, and that the phrase
"treatment for the termination of pregnancy" appears both in section 1 (3) and in section 3 (1) , but
both are significantly different from the language of section 1 (1). And, had Parliament been minded
to legislate on the lines which the appellants submit was its aim, Lord Denning M.R. demonstrated
by reference to several earlier statutes in the medical field that the legislature had already to hand
suitable words which would have rendered unnecessary any such expansive interpretation as that
favoured in the present instance by the Solicitor-General.
My Lords, at the end of the day the appellants were driven to rely on a submission that, were section
1 (1) given its literal meaning, such absurd consequences would follow that a liberal construction is
unavoidable if the Act of 1967 is to serve a useful purpose. In the foreground was the submission
that, were a termination of pregnancy embarked upon when (as it turned out) the woman was not
pregnant, the Act would afford no defence to a doctor prosecuted under the Act of 1861. and it was
secondly urged that he would be equally defenceless even where he personally treated a pregnant
woman throughout if, for some reason, the procedure was interrupted and the pregnancy not
terminated. I have respectfully to say that in my judgment it is these objections which are
themselves absurd. Lawful termination under the Act predicates the personal services of a doctor
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operating in section 1 (3) premises and armed with the opinion of two medical practitioners. But
where termination is nevertheless not achieved, the appellants invite this House to contemplate the
doctor and his nursing staff being prosecuted under section 58 of the Act of 1861, the charge being,
of course, not the unlawful termination of pregnancy (for ex hypothesi there was no termination)
but one of unlawfully administering a noxious thing or unlawfully using an instrument with intent to
procure miscarriage. and on that charge unlawfulness has still to be established and the prosecution
would assuredly fail. For the circumstances predicated themselves establish the absence of any
mens rea in instituting the abortive treatment, and its initial lawfulness could not be rendered
unlawful either by the discovery that the woman was not in fact pregnant or by non-completion of
the abortive treatment. Were it otherwise the unavoidable conclusion is that *833 doctors and
nurses could in such cases be convicted of what in essence would be the extraordinary crime of
attempting to do a lawful act.
My Lords, it was after drafting the foregoing that I happened upon the following passage in Smith
and Hogan, Criminal Law , 4th ed. (1978), p. 346 which I now gratefully adopt, for it could not be
more apposite:
"... the legalisation of an abortion must include the steps which are taken towards it.
Are we really to say that these are criminal until the operation is complete, when they
are retrospectively authorised, or alternatively that they are lawful until the operation
is discontinued or the woman is discovered not to be pregnant when, retrospectively,
they become unlawful? When the conditions of the Act are otherwise satisfied, it is
submitted that [the doctor] is not unlawfully administering, etc., and that this is so
whether the pregnancy be actually terminated or not."
I am in this way fortified in my conclusion that the "absurdities" on which the Solicitor-General
relies are in reality non-existent and that there is no reason for not giving the specific words of
section 1 of the Act their plain and ordinary meaning. Doing just that, the prostaglandin treatment
presently adopted requires the nursing staff to participate unlawfully in procedures necessitating
their personally performing over a period of several hours a series of acts calculated to bring about
a termination of pregnancy. This they cannot lawfully do, and in my judgment the Royal College of
Nursing were entitled to a declaration in those terms.
My Lords, I express no view regarding this result, save that I believe it to be inevitable on the facts
of the case, and this despite my awareness that several thousand extra-amniotic terminations are
now performed annually. If it is sought to render such medical induction lawful, the task must be
performed by Parliament. But under the present law it is a registered medical practitioner who must
terminate pregnancy. I would therefore affirm the unanimous view of the Court of Appeal and
dismiss this appeal.
LORD KEITH OF KINKEL.
My Lords, this appeal is concerned with the question whether section 1 (1) of the Abortion Act 1967
applies, so as to relieve the participants from criminal liability, to the procedures normally followed
in operating a modern technique for inducing abortion by medical means.
The technique, which has been evolved and become common practice over the past 10 years for the
purpose of terminating pregnancy during the third trimester, is considered in medical circles to
involve less risk to the patient than does surgical intervention. The details of the procedure have
been fully described in the judgments of the courts below. Its main feature is the introduction via a
catheter into the interspace between the amniotic sac and the wall of the uterus of an abortifacient
drug called prostaglandin. The purpose of this is to induce uterine contractions which in most cases,
but not in all, result in the expulsion of the foetus after a period of between 18 and 30 hours. The
process is assisted by *834 the introduction into the blood stream, via a cannula inserted in a vein,
of another drug called oxytocin. Responsibility for deciding upon and putting the procedure into
operation rests with a registered medical practitioner who himself inserts the catheter and the
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cannula. The attachment of the catheter and the cannula to a supply of prostaglandin and of oxytocin
respectively, and the initiation and regulation of the flow of these drugs are carried out by a nurse
under the written instructions of the doctor, who is not normally present at those stages. He or a
colleague is, however, available on call throughout.
Section 1 (1) of the Act of 1967 can operate to relieve a person from guilt of an offence under the
law relating to abortion only "when a pregnancy is terminated by a registered medical practitioner."
Certain other conditions must also be satisfied, but no question about these arises in the present
case. The sole issue is whether the words I have quoted cover the situation where abortion has been
brought about as a result of the procedure under consideration.
The argument for the respondents is, in essence, that the words of the subsection do not apply
because the pregnancy has not been terminated by any registered medical practitioner, but by the
nurse who did the act or acts which directly resulted in the administration to the pregnant woman
of the abortifacient drugs.
In my opinion this argument involves placing an unduly restricted and unintended meaning on the
words "when a pregnancy is terminated." It seems to me that these words, in their context, are not
referring to the mere physical occurrence of termination. The sidenote to section I is "Medical
termination of pregnancy." "Termination of pregnancy" is an expression commonly used, perhaps
rather more by medical people than by laymen, to describe in neutral and unemotive terms the
bringing about of an abortion. So used, it is capable of covering the whole process designed to lead
to that result, and in my view it does so in the present context. Other provisions of the Act make it
clear that termination of pregnancy is envisaged as being a process of treatment. Section 1 (3)
provides that, subject to an exception for cases of emergency, "treatment for the termination of
pregnancy" must be carried out in a National Health Service hospital or a place for the time being
approved by the minister. There are similar references to treatment for the termination of pregnancy
in section 3, which governs the application of the Act to visiting forces. Then by section 4 (1) it is
provided that no person shall be under any duty "to participate in any treatment authorised by this
Act to which he has a conscientious objection." This appears clearly to recognise that what is
authorised by section 1 (1) in relation to the termination of pregnancy is a process of treatment
leading to that result. Section 5 (2) is also of some importance. It provides that: "For the purposes
of the law relating to abortion, anything done with intent to procure the miscarriage of a woman is
unlawfully done unless authorised by section 1 of this Act." This indicates a contemplation that a
wide range of acts done when a pregnancy is terminated under the given conditions are authorised
by section 1, and leads to the inference that, since all that section 1 in terms authorises is the
termination of *835 pregnancy by a registered medical practitioner, all such acts must be embraced
in the termination.
Given that the termination of pregnancy under contemplation in section 1 (1) includes the whole
process of treatment involved therein, it remains to consider whether, on the facts of this case, the
termination can properly be regarded as being "by a registered medical practitioner." In my opinion
this question is to be answered affirmatively. The doctor has responsibility for the whole process
and is in charge of it throughout. It is he who decides that it is to be carried out. He personally
performs essential parts of it which are such as to necessitate the application of his particular skill.
The nurse's actions are done under his direct written instructions. In the circumstances I find it
impossible to hold that the doctor's role is other than that of a principal, and I think he would be
very surprised to hear that the nurse was the principal and he himself only an accessory. It is true
that it is the nurse's action which leads directly to the introduction of abortifacient drugs into the
system of the patient, but that action is done in a ministerial capacity and on the doctor's orders.
Even if it were right to regard the nurse as a principal, it seems to me inevitable that the doctor
should also be so regarded. If both the doctor and the nurse were principals, the provisions of the
subsection would be still satisfied, because the pregnancy would have been terminated by the doctor
notwithstanding that it had also been terminated by the nurse.
I therefore conclude that termination of pregnancy by means of the procedures under consideration
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is authorised by the terms of section 1 (1). This conclusion is the more satisfactory as it appears to
me to be fully in accordance with that part of the policy and purpose of the Act which was directed
to securing that socially acceptable abortions should be carried out under the safest conditions
attainable. One may also feel some relief that it is unnecessary to reach a decision involving that
the very large numbers of medical practitioners and others who have participated in the relevant
procedures over several years past should now be revealed as guilty of criminal offences.
My Lords, for these reasons I would allow the appeal, and restore the declarations granted by Woolf
J.
LORD ROSKILL.
My Lords, the long title of the Abortion Act 1967 is "An Act to amend and clarify the law relating to
the termination of pregnancy by registered medical practitioners." The respondents accepted before
your Lordships' House that the Act of 1967 had a social purpose, namely the making of abortions
available more freely and without infringement of the criminal law but subject always to the
conditions of that Act being satisfied. But Parliament sought to achieve that admitted social purpose
not as in the case of some social reforms by expressly creating some positive entitlement on the
part of members of the public to that which the statute sought to achieve but by enacting in section
1 (1) that "a person" (not, be it noted, simply "a registered medical practitioner") should "not be
guilty of an offence under the law relating to abortion" provided that certain *836 other conditions
were satisfied. "The law relating to abortion" was defined in section 6 as meaning " sections 58 and
59 of the Offences against the Person Act 1861 , and any rule of law relating to the procurement of
abortion...." Thus the scheme of the Act of 1967 was to exempt from the sanctions of the criminal
law imposed principally by the Offences against the Person Act 1861 upon those who carried out or
attempted to carry out abortions those, but only those. who carried them out in a manner which
satisfied all the requirements of the Act of 1967.
My Lords, the question which now requires determination by your Lordships' House arises because
of the development by the medical profession of the termination of pregnancy by the extra-amniotic
process, a process not developed nor indeed in use when the Act of 1967 became law. The details
of the extra-amniotic process and its development will be found in the "agreed statement as to
clinical background" which the parties conveniently made available to the courts below and in the
agreed addition to that statement which was further agreed by the parties for the purposes of the
instant appeal.
In his judgment in the Court of Appeal Brightman L.J. analysed the successive steps in the case of
extra-amniotic medical induction for the termination of pregnancies under nine steps and on the
basis of what was called "maximum nurse participation" in that process and further detailed under
each of those nine steps those which required action by the doctor and those which required action
only by the nurse. I gratefully adopt, without repetition, what Brightman L.J. there states. It will be
observed that of those nine steps the doctor is only positively involved in performing two, the first
and the fourth. The remainder are all performed by the nurse. The first step in which the doctor is
personally involved is the insertion of the catheter into the womb. The fourth is the insertion of the
cannula into the vein but no fluid is then passed by the doctor through the cannula. Thereafter every
positive step is taken by the nurse up to and including the ninth step which occurs when the nurse
discontinues the treatment either because the foetus has been discharged or because the allotted
period has elapsed and the operation has failed. But it must be emphasised that every step taken
by the nurse will be in accordance with the instructions of the doctor and those will be written
instructions in all important respects. Though the insertion of the catheter into the womb by the
doctor can have an abortifacient effect, the intention of the entirety of the process is that the
abortion shall be achieved by the administration of the fluids by the nurse.
On those facts, which I have summarised - they will be found more fully detailed in the judgments
of the courts below - the crucial issue is whether "a pregnancy is terminated by a registered medical
practitioner" assuming, as of course I do for present purposes, that the other prerequisites of section
1 (1) of the Act of 1967 are also satisfied. If a narrow meaning is given to the phrase I have just
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quoted, then it is the nurse and not the doctor who terminates the pregnancy. If that be right the
doctor and the nurse are each guilty of a separate offence against the Act of 1861, the nurse because
she is carrying out an abortion *837 when she is not a doctor and the doctor because he is
attempting to carry out an abortion when he engages in the first step which is not authorised by the
Act of 1967. In addition, he is aiding and abetting the nurse's offence and both, and maybe others
as well, are guilty of conspiracy to infringe the Act of 1861. This is the position which the respondents
feared might arise and which led them to institute the present proceedings on behalf of the nursing
profession in order that the question whether or not their profession are, in these circumstances,
entitled to the protection of the Act of 1967 might be finally determined. If the construction placed
upon the Act of 1967 by the majority of the Court of Appeal (Lord Denning M.R. and Sir George
Baker) is correct, then the respondents' fears are indeed well-founded.
The appellants, on the other hand, contend for a wider construction of the Act of 1967. It was this
wider construction which found favour both with Woolf J. and with Brightman L.J. It was this view
of the law for which the appellants had contended, under legal advice, in a letter dated February 25,
1980, the circulation of which led to the institution of the present proceedings. The difference of
view between Woolf J. and Brightman L.J. arose only upon the facts since the learned Lord Justice
felt that the actual termination of the pregnancy by the nurse could not legitimately be described as
"termination by a registered medical practitioner." Brightman L.J. summarised his view by saying
ante, p. 810B that "the doctor has provided the nurse with the means to terminate the pregnancy,
not that the doctor has terminated the pregnancy."
Learned counsel for the respondents did not shrink from the anomalies which would necessarily flow
from the acceptance of his submission and the construction adopted by the majority of the Court of
Appeal. There was, he said, only a limited qualification engrafted upon an otherwise unchanged
criminal law and in 1967 Parliament had legislated by reference to the surgical techniques of abortion
as they then were and not for other techniques of abortion as they might subsequently be evolved.
Pressed to say whether a new method must not be adopted which involved less risk to the patient,
he replied that any such new method would only be lawful if the doctor were present throughout, a
view which would seemingly make unrealistic demands upon medical manpower since no one
suggested that each of the seven steps taken by the nurse, to which I have already referred, was
not well within the capacity of someone possessed of the qualifications and experience which such
a nurse would necessarily possess.
My Lords, I have read and re-read the Act of 1967 to see if I can discern in its provisions any
consistent pattern in the use of the phrase "a pregnancy is terminated" or "termination of a
pregnancy" on the one hand and "treatment for the termination of a pregnancy" on the other hand.
One finds the former phrase in section 1 (1) and (1) (a), the latter in section 1 (3), the former in
section 1 (4), the latter in section 2 (1) (b), and again in section 3 (1) (a) and (c) . Most important
to my mind is section 4 which is the conscientious objection section. This section in two places refers
to "participate in treatment" in the context of conscientious objection. If one construes section 4 in
conjunction *838 with section 1 (1), as surely one should do in order to determine to what it is
that conscientious objection is permitted, it seems to me that section 4 strongly supports the wider
construction of section 1 (1). It was suggested that acceptance of the appellants' submission
involved re-writing that subsection so as to add words which are not to be found in the language of
the subsection. My Lords, with great respect to that submission, I do not agree. If one construes
the words "when a pregnancy is terminated by a registered medical practitioner" in section 1 (1) as
embracing the case where the "treatment for the termination of a pregnancy is carried out under
the control of a doctor in accordance with ordinary current medical practice" I think one is reading
"termination of pregnancy" and "treatment for termination of pregnancy" as virtually synonymous
and as I think Parliament must have intended they should be read. Such a construction avoids a
number of anomalies as, for example, where there is no pregnancy or where the extra-amniotic
process fails to achieve its objective within the normal limits of time set for its operation. This is, I
think, the view which appealed to Woolf J. and to Brightman L.J. and I find myself in respectful
agreement with that view. But with respect I am unable to share the learned Lord Justice's view on
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the facts. I think that the successive steps taken by a nurse in carrying out the extra-amniotic
process are fully protected provided that the entirety of the treatment for the termination of the
pregnancy and her participation in it is at all times under the control of the doctor even though the
doctor is not present throughout the entirety of the treatment.
My Lords, I have reached this conclusion simply as a matter of the construction of the Act of 1967.
But as I have already pointed out, Parliament has achieved whatever reforms the Act of 1967 did
achieve by engrafting qualifications upon the criminal law principally as enacted in the Act of 1861.
If the respondents' contentions and the views of the majority of the Court of Appeal are correct and
one envisages a doctor and a nurse on trial on indictment for offences or attempted offences against
the Act of 1861, the trial judge would be bound at least to tell the jury that if they found the facts
as Brightman L.J. described them in his judgment they might find it difficult to see what verdicts
other than verdicts of guilty they could properly return even though such a trial judge might properly
shrink from telling them that it was positively their duty in those circumstances to convict. Either
direction would, I apprehend, be given with reluctance and acted upon, if at all, with dismay.
My Lords, it was common ground that if the appeal succeeded the proper declaration was that
granted to the appellants by Woolf J. Since in my opinion the appeal should succeed it follows that
I would allow the appeal and grant the same declaration as was granted by that learned judge.
Representation
Solicitors: Treasury Solicitor ; M. J. Scrivenger .
Appeal allowed. F. C.
(c) Incorporated Council of Law Reporting for England & Wales
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