APPENDIX 79
Supplementary evidence from the Department
of Health
ABORTION
CHANGES TO
THE LAW
Abortion is a subject on which many people hold
very strong and widely differing views. It is accepted Parliamentary
practice that proposals for changes in the law on abortion have
come from back bench members and that decisions are made on the
basis of free votes. The Government has no plans to change the
law on abortion.
ABORTION ACT
1967, AS AMENDED
As Parliament has decided that abortions may
lawfully be carried out in the circumstances specified in the
Abortion Act 1967 (as amended by the Human Fertilisation and Embryology
Act 1990) the Government believes that facilities for abortion
treatment should be available. The Government also has a responsibility
to monitor the provisions of the Act as they are unless Parliament
chooses to further amend that law.
Women seeking a termination for whatever reason
must have grounds under the Abortion Act. A pregnancy may only
be terminated if two registered medical practitioners are of the
opinion, formed in good faith, that an abortion is justified within
the terms of the Act, in the light of their clinical judgement
of all the particular circumstances of the individual case. The
grounds for an abortion are:
(a) that the pregnancy has not exceeded
its 24th week and that the continuance of the pregnancy would
involve risk, greater than if the pregnancy were terminated, of
injury to the physical or mental health of the pregnant woman
or any existing children of her family; or
(b) that the termination is necessary
to prevent grave permanent injury to the physical or mental health
of the pregnant woman; or
(c) that the continuance of the pregnancy
would involve risk to the life of the pregnant woman, greater
than if the pregnancy were terminated; or
(d) 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.
The Act goes on to state that "in determining
whether the continuance of pregnancy would involve such risk of
injury to health as is mentioned in paragraph (a) or (b) . . .,
account may be taken of the pregnant woman's actual or reasonably
foreseeable environment." There is no time limit for (b)-(d).
An abortion can also take place where it is
immediately necessary to save the life of or to prevent grave
permanent injury to the physical or mental health of the pregnant
woman.
Place of termination
Unless performed as an emergency, the Act states
that all treatment for abortion has to take place in an NHS hospital
or approved independent sector place.
Conscientious objection
Apart from in an emergency situation, nobody
can be forced to provide treatment for abortion. However, this
does not cover referring women on for an abortion.
Notification
The Act requires registered medical practitioners
to send forms to the Chief Medical Officer after each abortion
is performed. It also prohibits the disclosure of that information.
FUNDING
In 2003, for residents of England and Wales:
— 80% of abortions were funded by the
NHS; of these, just under half took place in the independent sector
under NHS contract.
— NHS hospitals performed 42% of the
total number of abortions, whilst the independent sector performed
58%.
APPROVED INDEPENDENT
SECTOR PLACES
All independent sector places wishing to perform
abortions have to be approved by the Secretary of State for Health
under section 1(3) of the Abortion Act 1967.
Prior to 1 April 2002, the approved places had
to follow the Department of Health's Procedures For The Approval
of Independent Sector Places For The Termination Of Pregnancy,
with inspections being made by the Department of Health. The
places were also registered under the Registered Homes Act 1984
and inspected by health authorities. Since 1 April 2002, the approved
places have been registered under the Care Standards Act 2000
and inspected by the National Care Standards Commission only (subsumed
by the Healthcare Commission from 1 April 2004). The places have
to comply with a set of independent healthcare national minimum
standards and regulations, which include providing treatment to
patients in line with relevant clinical guidelines, for example
the Royal College of Obstetrician and Gynaecologist's evidence-based
guideline The Care of Women Requesting An Induced Abortion.
Depending on the service provided, the approved places have
to follow the core and acute standards. In addition, there are
specific standards covering establishments that perform abortions
for quality of treatment and care, information for patients, privacy
and confidentiality for patients, respect for fetal tissue and
emergency procedures.
Secretary of State for Health's approval under
the Abortion Act is conditional upon compliance with the Abortion
Act and the Care Standards Act. Failure to comply with or maintain
the standards required by the Secretary of State for Health may
lead to a withdrawal of approval at any time. There are currently
68 approved independent sector places, with the majority of them
having provided an abortion service for many years.
"CLASS OF
PLACE"
There is also provision under the Act for a
"class of place" to be approved to perform medical abortion.
This provision is not in use in England but we have two medical
abortion pilots currently running to help us determine what a
suitable class of place would be.
ABORTION AND
THE 1990 HFE ACT
Broadly, the position as the Department sees
it is that section 37 of the 1990 Act does not deal substantively
with abortion. It took effect by deleting the existing section
1(1)(a) and (b) of the Abortion Act 1967 and inserting four new
grounds for abortion into section 1(1) instead. This happened
immediately that section 37 came into force. Section 37 no longer
has any substantive effect because it took effect elsewhere—ie
in the 1967 Act. It is not section 37 of the 1990 which tells
us what the grounds for abortion are, it is section 1(1) of the
1967 Act in its current form. Parliamentary Counsel will take
the opportunity, when it arises, of repealing spent provisions
such as section 37, precisely because they no longer have any
effect once they have made a change to an earlier statute.
January 2005
| 
