Memorandum 22
Submission from Dr Vincent Argent
SUMMARY OF
MAIN POINTS
AND RECOMMENDATIONS
Two Doctors' Signatures—HSA1 form—Certificate
of Opinion
1.1 The need for two signatures is often
mismanaged and doctors' are uncertain about the law of conscientious
objection. For abortions under 12 weeks, the requirement should
be abolished or replaced by two registered nurse signatures.
Nurses carrying out surgical abortions
1.2 Evidence from America and elsewhere
shows that trained nurses can provide a safe and effective early
surgical abortion service.
The law is unclear and there needs to be clarification
of the current advice.
MY OPINION
1.3 In addition, I am of the opinion that
the following changes should also be made:
The 24 week upper time limit for Grounds C and
D (Section 1(1)a) (the "social grounds") should be reduced
to 16 weeks. Abortions over 16 weeks, up to term, may still be
permitted under Grounds A, B and E (Section 1(1)b, c, d).
Serious abnormality should be clarified either
with a scientific definition or a statement that this can be left
to a decision reached between the patient and her medical advisers.
Providers and Training
1.4 This Inquiry does not deal directly
with issues of access, training and providers. This issue is important
as there are problems with access and medical practitioners unwillingness
to participate or be trained in abortion practice. Law reform
may aid improvements.
General Comment on the Abortion Act 1967
1.5 The Abortion Act 1967, as amended by
the HFEA Act 1990, needs to be reviewed in the light of modern
practice and needs to reflect the views of modern society. Unclear
areas, such as conscientious objection, need to be clarified.
The debate is often monopolised by pro-choice
or anti-abortion lobbyists but reform should reflect the pragmatic
views of the public and professions.
MY ROLE
1.6 I am a Consultant Obstetrician and Gynaecologist.
I have worked as the lead in Sexual and Reproductive Health at
East Sussex Hospital and Addenbrooke's Cambridge University Teaching
Hospital. I have been Medical Director of bpas and still do sessions
for the provider.
I am an acknowledged and published authority
on abortion practice and abortion law. I am a Faculty of Family
Panning and Reproductive Health Care accredited trainer in abortion
care.
I have an interest in academic medical law and
have been a medical law lecturer at the Universities of Warwick,
Brighton and Cambridge.
Recent activities (2006-07) include:
Adviser to Department of Health Working Party
on Late Abortion.
Adviser to National Patient Safety Agency project
on abortion complications.
Author of draft Consent to Surgical and Medical
Abortion Advice from the Royal College of Obstetrician and Gynaecologists.
Peer Reviewer RCOG Guidelines: Care of Women
Requesting Induced Abortion.
Commissioned Reviews and Articles in the Journal
of the Faculty of Family Planning and Reproductive Health Care:
Can nurses legally perform surgical induced abortion—Argent
V, Pavey L. J Fam Plann Reprod Health Care 2007; 33(2): 79-82
Abortion law: Campaign groups and the quest for
change—Argent V. J Fam Plann Reprod Health Care 2006; 32:
215-217
How can abortion be made simpler for women?—Argent
V. J Fam Plann Reprod Health care 2006; 32: 67-69
Accepted for review on the Journal (due for
publication in January 2008)—will be subject to editorial
review:
Conscientious Objection and Abortion (Copy attached
(not printed))
EVIDENCE
Requirement for two doctors' signatures
2.1 The current requirement for two doctors'
signatures on the HSA 1 Certificate of Opinion is often misinterpreted
and abused.
2.2 The advice on conscientious objection
is conflicting. Many GPs and hospital doctors refuse to sign the
HSA1 form on grounds of conscientious objection. The BMA suggests
that doctors' are under a legal duty to take part in the provision
of the form and cannot claim exemption under the Janaway case.
The BMA does, however, state that doctors with objection should
be allowed to claim exemption from this duty. Legal authorities
also suggest that exemption may not be claimed for signing the
form. Doctors may claim exemption because the Abortion Act section
4 may have been amended by the Human Fertilisation and Embryology
Act section 38 which allows conscientious objection to "any
activity".1
2.3 Doctors may also refuse to sign the
HSA1 form if they are of the opinion that the patient does not
fulfil the requirements under section 1 even if they have no conscientious
objection.
2.4 There are widespread variations in the
actual provision of signatures. The author has observed the following
practices—some of these may be illegal and they need clarification.
Signing batches of forms before patients are
even seen for consultation.
Signing the forms with no knowledge of the particular
patient and without reading the notes.
Signing forms without seeing or examining the
patients.
Signing forms after the abortion has been performed.
Faxing the forms to other locations for signature.
Use of signature stamps without any consultation
with the doctor.
The HSA1 form is often considered to be just
an administrative process where doctors make no attempt to form
an opinion, in good faith, that the patient fulfils the grounds
of section 1.
2.5 These practices show that the HSA1 is
often considered as a mere formality and abolishing this requirement
should be considered.
2.6 In practice, many nurses carry out the
whole of early medical abortions including consultation, treatment
and after-care and the doctor merely signs the form and never
sees or has any involvement with the patient. Such practice is
covered by the RCN v DHSS case, but it might seem reasonable to
allow nurses to sign the HSA1 form.
2.7 These arguments are quite separate from
those who consider that the requirement should be abolished, as
the abortion decision should lie with the woman rather than her
medical advisers, especially before 12 weeks.
Nurses carrying out surgical abortions
3.1 It has been suggested that the current
law would allow nurses (and others) to directly carry out surgical
abortions under the overall supervision of a registered medical
practitioner even if the practitioner is not present throughout
the entirety of the procedure.2 The Department of Health, the
Royal College of Nursing and others have suggested that the law
does not, in fact, allow this.
3.2 There is evidence in the literature
that nurses and mid-level providers can provide a safe and effective
service surgical service using Manual Vacuum Aspiration (MVA)
or suction equipment. Such practitioners have been trained to
partake in this work.3 Planned Parenthood of Northern New England
is a major provider of abortion care in New England and has extensive
experience of nurse surgical practice.4 The IPAS abortion training
system is well established.5
3.3 In other areas of medical practice,
nurses are extending their roles and performing surgical procedures.
In gynaecology alone, nurses now perform invasive surgical procedures
such as colposcopy, hysteroscopy and transvaginal egg collection
under conscious sedation. Most midwives now suture episiotomies
and extended role midwifery practitioners now undertake low cavity
Ventouse and forceps deliveries.6 Many subspecialty groups such
as the British Society for Colposcopy and Cervical Pathology (BSCCP)
and the British Fertility Society (BFS) have specific sections
for nurse practitioners eg, the BSCCP Training programme open
to nurse and doctors7 and the BFS Assisted Conception—Specialist
Certification Course—this is a Royal College of Nursing
Approved Professional Course.8 These courses teach nurses how
to perform invasive surgical procedures such as colposcopic biopsy
and ovarian puncture for egg collection.
3.4 Training in surgical abortion practice
could be achieved by allowing nurse practitioners to undertake
Certificates 4 and 5 on Abortion Care of the Faculty of Family
Planning and Reproductive Health Care (Manual Vacuum Aspiration
and Surgical Evacuation under 12 weeks) which are currently only
open to doctors.9
3.5 Nurse surgeons usually work under guidelines
and protocols with responsibility to, and overall supervision
by, a medical practitioner. There may be concerns about the capability
of nurse surgeons to provide a competent response to complications
such as bleeding or perforation of the uterus. This can be addressed
by ensuring adequate training, ongoing experience together with
well-defined support and back-up from the medical team.
3.6 Nurses already run medical abortion services
with very little input from doctors (apart from the HSA1 signatures
and overall supervision). Current nurse led services are safe
and effective and popular with women.
24 weeks upper limit—Grounds C and D—section
1(1)a
4.1 Grounds C and D under section 1(1)a
are often referred to as the "social" clauses although
this has no basis in the law. The majority of abortions are performed
under ground C where there would be a risk to the physical or
mental health of the woman.
4.2 In practice, many NHS abortion services
have arbitrary upper limits of 12-16 weeks. This is because colleagues
are unwilling to participate ion later abortions because of partial
conscientious objection or, more often, because they just do not
wish to get involved or have no interest in such practice. Few
NHS surgeons possess the skills or experience to undertake dilatation
and evacuation procedures after 16 weeks.
4.3 Recent public opinion polls suggest
that the public would like to see improved and easier access for
early abortion but that the upper limit should be reduced or that
later abortions should be subject to greater counselling and stricter
approval criteria. The BMA, the RCOG the Nuffield Council on Bioethics
have addressed the problems surrounding later abortion.
4.4 The debate on the upper limit is often
polarised between pro-choice campaigners who would keep the limit
as it is and the anti-abortion activists who would like a drastic
reduction in the upper limit. 10 A pragmatic middle of the road
view, as demonstrated by public opinion polls, does not have a
very strong voice.
4.5 In practice, it would seem reasonable
to reduce the 24 week upper limit for section 1(1)a C and D abortions
to 16 weeks. Abortions could still be approved over 16 weeks under
section 1(1)a Ground B where the termination is necessary top
prevent grave permanent injury to the physical or mental health
of the women. Agreement to such abortions would follow improved
in-depth counselling and a concerted effort to confirm that there
is a risk of grave injury. (No limits would be placed on abortions
sanctioned under Grounds A and E).
Definition of serious abnormality
5.1 Ground E abortions are performed when
there is a substantial risk that the baby would suffer from such
abnormalities as to be seriously handicapped.
5.2 The Jepson case and others have suggested
that such abortions are carried out for minor abnormalities which
would not cause serious handicap and may be amenable to good results
from treatment eg, cleft palate and lip.
5.3 There is no legal definition as to what
constitutes serious handicap. There is no strictly parallel medical
or scientific definition of serious handicap.
5.4 The legislators should decide whether
there needs to be comprehensive guidance or a legal definition
of serious handicap or whether the decision is best left to the
patient and her medical advisers under guidance form the Royal
Colleges.
5.5 In any case, such abortions may be approved,
before 24 weeks, under Grounds B,C and D rather than E.
Providers and training
6.1 Concern has been expressed about the
increasing unwillingness of obstetricians and gynaecologist and
general practitioners to get involved in abortion practice. 11
6.2 Subspecialty training in obstetrics
and gynaecology has led junior doctor in training to choose more
popular areas of practice such as infertility, cancer and fetal
medicine. Increasing numbers of doctors cite conscientious objection
for their stance. The provision of abortion services is no longer
seen as an essential part of mainstream gynaecological practice.
6.3 For these reasons and also because of
PCT contracts, NHS funded abortions are increasingly performed
by the two charitable providers bpas and Marie Stopes. These organisations
do not train junior doctors. In many areas, there are no opportunities
or structure training programmes for abortion training.
6.4 Changes in the law, with regard to certification
and involvement in surgical procedures, would permit nurses to
run these services and improve access for women.
6.5 Each area should have a Consultant in
Sexual and Reproductive Health as the lead for the abortion service
and as trainer of staff.
6.6 The charitable providers should play
a major role in the training of doctors and other health care
professionals.
General Comment on the Abortion Act 1967
7.1 The Abortion Act 1967, as amended by
the Human Fertilisation and Embryology Act 1990, does not reflect
the reality of modern abortion practice. The majority view in
the UK supports the need for easier access to earlier abortion
but stricter access to later abortion towards the gestational
age of fetal viability.
7.2 The abortion debate tends to be polarised
between pro-choice and pro-life groups and a pragmatic approach
would be more useful.
7.3 Some areas of the law are unclear such
as the protection given by the section 4 conscientious objection
and whether this has been amended by the HFEA Act.
7.4 It would be reasonable to accept that
current or amended law would allow nurses to undertake some surgical
procedures.
7.5 There are widespread variations in the
practice of obtaining signatures for the HSA1 Certificate of Opinion
and some of these may not be lawful. Current practice suggests
this is usually seen as an unnecessary exercise.
7.6 There is a lack of clear legal guidance
on some matters eg, the definition of seriously handicapped.
7.7 Recent statements from professional
organisations such as the BMA, the GMC, the RCN and the NMC have
attempted to clarify the law on abortion but also to recommend
changes in the law.
7.8 The RCOG and Faculty of Family Planning
have produced current updated guidelines and training programmes
for abortion practice.
7.9 The government has expressed the view
that it does not wish to change the Abortion Act.
7.10 I am of the opinion that these changes
and challenges merit a thorough review and modernisation of the
abortion legislation.
REFERENCES
1. Conscientious objection—to be published
in January 2007 in J Fam Plann Reprod Health Care
2. Argent V, Pavey L. Can nurses legally perform
surgical induced abortion? J Fam Plann Reprod Health Care 2007;
33(2) : 70-82.
3. Warner I, Merik O, Hoffman M, Morroni C, Harries
J, My Huong N, et al. Rates of complications in first-trimester
manual vacuum aspiration abortion done by doctors and mid-level
providers in South Africa and Vietnam: a randomised controlled
equivalence trial. Lancet 2006; 368: 1965-1972.
4. www.ppnne.org
5. www.ipas.org/Topics/Training.aspx
6. Contact Royal College of Nursing—Nurses
in Gynaecology Forum—Currently consulting on draft document
for Nurses Working in Termination of Pregnancy (revision of 1997
guidelines)
7. Becoming a trainee. British Society for Colposcopy
and Cervical Pathology. www.bsccp.org/index.asp?PageID=49
8. Assisted Conception—Specialist Certification
Course of the British Fertility Society- Royal College of Nursing
Approved Professional Course. www.britshfertilitysociety.org
9. Faculty of Family Planning and Reproductive
Health Care. Syllabus and Logbook for the Certificate in Abortion
Care of the Faculty of Family Planning and Reproductive Health
Care of the Royal College of Obstetricians and Gynaecologists.
http://ffprhc.org.uk/pdfs/AbortionCareLogbook.pdf
10. Argent V. Abortion law: campaign groups and
the quest for change. J Fam Plann Reprod Health Care 2006; 32:
215-217.
11. Argent V. How can abortion be made simpler
for women? J Fam Plann Reprod Health Care 2006; 32: 67-69.
September 2007
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