Select Committee on Science and Technology Minutes of Evidence

Examination of Witnesses (Questions 380-399)


24 OCTOBER 2007

  Q380  Chairman: I think the issue was: should we be tightening the law to strengthen it to prevent organisations within the law encouraging women to go overseas?

  Dawn Primarolo: Well, that would be a matter for the House to decide whether it further wanted to restrict the current Act.

  Chairman: We are coming on now to an area that is legal.

  Q381  Dr Spink: Minister, given that there are too many abortions taking place in this country, would you support legislation which included the requirement to make alternatives to abortion available to women contemplating termination for foetal abnormality?

  Dawn Primarolo: I think that the counselling that is provided to women, as provided by the legislation, is the right way to pursue these difficult matters and, therefore, as I said earlier in my evidence, I think that it is provided for within the Act.

  Q382  Dr Spink: There is no time limit on abortions that are carried out under ground (e), that is 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". What does the Abortion Act 1967 actually mean by "seriously handicapped"?

  Dawn Primarolo: Well, Parliament chose not to define that in the Act. It chose to leave this to the expert judgment of the two doctors based on the merits of each case and doctors must form their own opinion about the seriousness of that, and that is the current position.

  Q383  Dr Spink: You will be aware that a number of years ago I asked questions in the House about babies being aborted and killed because of cleft palate and hair lip and very minor issues which are not what the normal person would consider to be a handicap in any way at all. The Minister will have also seen in The Telegraph on Monday that more than 100 babies with minor disabilities, such as cleft palate or club foot, were aborted in one area of England in a three-year period. This is from National Statistics. Are you comfortable with that or do you now feel that we should have a definition for `handicap' and, if so, should NICE or should the Department of Health provide a guideline?

  Dawn Primarolo: As I said, Dr Spink, this was a matter that Parliament itself decided that it would not define and obviously you will be aware, as I was, that some specific challenges occurred in December 2003 where there was a judicial review against West Mercia's decision not to prosecute two doctors who had agreed an abortion at over 24 weeks' gestation. Now, the Crown Prosecution Service announced in March 2005 that the doctors had acted in good faith and that no prosecutions would be brought and it went back to the question of Parliament's decision not to define what it meant by `serious handicap' in the Act, and it took that decision again in 1990. Frankly, that is a matter, therefore, for Parliament. This is a matter that is done on a free vote and then the Department has to ensure that the legislation is complied with and I think that it has been demonstrated that the expert judgment of the two doctors who agree in these very difficult areas is the right way to proceed, unless Parliament decides otherwise, but the Department will be recommending that.

  Q384  Chairman: Is this for the Department because I think the point that Dr Spink raised is the difference between what you would call minor abnormalities which are correctable and major congenital disorders? Is it possible, from the HSA forms which actually come back to the Department, to actually determine the difference between those two, both pre-24 weeks and post-24 weeks, and, if so, are those statistics available?

  Dr Adshead: We basically look at what is on the form, but I think the key issue here is that these cases are, as the Minister has said, very complex and require the expert opinion of two doctors who need to take into account the woman's circumstances and that we rely on that. We are also aware, and we have been advised by expert bodies, that it would be technically very difficult to define serious abnormality in terms of scans and that quite often, or sometimes at least, what can appear to be not very serious abnormalities on a scan can actually mark a wider syndrome and serious complications and abnormalities and that is why, as the Department, we still feel, and agree with medical opinion, that in fact we should not be seeking a precise definition of "serious abnormality", that it has to be done on a case-by-case basis, using both technical diagnostic facilities that are available, but, absolutely and very importantly, two doctors' views.

  Q385  Chairman: But that is a massive catch-all then, is it not? Would you agree?

  Dr Adshead: I think absolutely that it is for two experts who understand the complex circumstances for that woman to decide. I think it is far to complex and difficult an area for it to be defined in a catch-all definition.

  Q386  Dr Spink: To sum it up, it seems that the Department of Health and the Minister are comfortable with the fact that a baby may be killed at birth or just before birth because it has a cleft palate or a hair lip and I find that absolutely astounding.

  Dawn Primarolo: That is not what has been said to the Committee.

  Q387  Dr Spink: That is the consequence of what has been said.

  Dawn Primarolo: No. What we are clearly saying is that in what will be very difficult circumstances, we are prepared to take the advice from two doctors who understand the circumstances exactly and make their best judgment. What we are not prepared to do is to insinuate or suggest that doctors are not behaving in the way that the highest professional standards require them to. This of course, the whole area of abortion, is absolutely fraught and we rest our case on a number of principles and that is one of them.

  Q388  Dr Spink: Would it help doctors if they had a formal definition produced by NICE or the Department, guidance, so that it would give them protection?

  Dawn Primarolo: Doctors are quite clear that they are the best ones to use their medical training—

  Chairman: Minister, you have made that clear.

  Q389  Chris Mole: I think the question of two doctors has pretty much been trampled over in answer to previous questions, so I just wanted to return briefly to the question of the patient's legally enshrined autonomy. Is the Minister not concerned that the requirement for two signatures, for which other justifications have just been given in other responses, does run contrary to that notion of patient autonomy?

  Dawn Primarolo: I cannot win here! No, I do not and I think it is a very difficult area. I absolutely accept that the most important decision which will be taken in this whole process is by the woman herself and that we should respect that and that no woman would approach this without giving it a great deal of thought. The position we are in as the Department is that Parliament has decided on a free vote that it requires the two doctors and, therefore, in assisting the patient to reach the outcome that they have decided under the correct criteria as quickly as possible is the best way to discharge those responsibilities.

  Q390  Dr Harris: I want to pursue a little further the point raised very effectively by Graham Stringer earlier about delays to abortion possibly caused by doctors. Parliament set out the conscientious objection clause in 1967 and the GMC has interpreted that in its guidance and then doctors interpret that in their practice. Now, there are examples of doctors who are conscientious objectors still seeking to give advice to patients perhaps seeking terminations. The Daily Mail on 2 May 2007 quoted Dr Tammy Downs, saying that she is a conscientious objector, she admits that, but she says that many patients who come to see her, determined to have a termination, have been persuaded to think differently. She says that she advised one patient to read Psalm 139 in the Bible, "It is a beautiful psalm which talks about the sanctity of life", in her words. Do you think that more could be done in terms of clarity to reflect the wishes of Parliament that women were not obstructed in access to a balanced consultation and, if necessary, access to abortion as appropriately and as quickly as possible by the personal views of doctors being imposed upon them?

  Dawn Primarolo: Well, as I know the Committee absolutely appreciates, the GMC guidelines are quite clear as to what should happen at that point. With regard to specific cases in terms of what other arrangements could be made, I think that would be something that we perhaps would need to raise with the Primary Care Trust in terms of whether they were aware and whether there was a serious delay and, therefore, the GMC guidelines were not being observed, as in the particular case that you have just quoted. Therefore, frankly, I think that I would firstly want to go back to the GMC and seek their advice about whether they feel their guidelines need to be rather more specific or not.

  Q391  Dr Harris: I did want to declare my interest as a member of the BMA Medical Ethics Committee and my partner works in sexual health, policy and advocacy. Finally, if your policy, which deals with a couple of things really which have come up today, if your policy, as you have said, is to encourage abortion as early as possible and although it is a free vote and every minister will have different views, that is the Government's policy, is it not a good idea in pursuance of that policy to recommend to Parliament at the appropriate time on a free vote that parliamentarians look towards seeing that there are not obstructions and delays imposed by doctors' perfectly legitimate religious views or conscientious objections and that there is progress with the `class of place' regulations because not doing that frustrates the agreed policy which many of us share of abortions being done earlier, where possible?

  Dawn Primarolo: In specific answer to your two points, with regard to the conscientious objection, I have dealt with that in that there does not appear to be any evidence that there are delays by virtue of the percentage of terminations in 13 weeks. I have heard what the hon gentleman has had to say with regard to whether or not some doctors are not following the GMC guidelines and I will seek advice on that. With regard to the `class of place' progress, when the assessment is published at the beginning of next year, that will enable Parliament and the rest of us to be better informed, I hope, of the issues to be progressed and will assist in that discussion.

  Q392  Dr Harris: You say that you do not think there is evidence of doctors delaying because the number of abortions happening under 13 weeks is increasing, but could it not also be argued that it would increase faster if there was not this problem, so simply because there is a movement in one direction does not disprove that there is not a factor at work pushing it the other way?

  Dawn Primarolo: Yes, I absolutely agree. Eighty-nine percent at 13 weeks, that is good, but I hear what the hon gentleman is saying and I am just explaining why we think that the issue perhaps is not as large as he is demonstrating he believes it is.

  Chairman: Minister, you have made the point and we will rest your case. We come on to a very difficult area now.

  Q393  Graham Stringer: Is the Government requesting or commissioning any work into foetal pain?

  Dawn Primarolo: On the question of foetal pain, the Royal College of Obstetricians and Gynaecologists did their report in 1997. The consensus of opinion still lies with that. However, the RCOG does recommend, with regard to terminations of erring on the side of caution, certain practice and that is the way that we are proceeding here. We would discuss with the Royal College of Obstetricians and Gynaecologists and others if there was evidence that indicated that we should look at this again and reconsider their report of 1997, but we have not.

  Q394  Graham Stringer: I thought the position was slightly different from that. After the 1997 report on foetal awareness, I thought the Government said that it needed to look and asked for work to be done on foetal pain. Is that not the case?

  Dawn Primarolo: Yes, you are quite correct. I am sorry, I did not mean to mislead the Committee. The Department of Health did ask the RCOG to look at the issue and review the scientific evidence, but that was the report of 1997. The report recommended further research. This was taken forward by the Medical Research Council in its advisory report which was published in 2001 and the group concluded that, although there had been some developments in the issue of foetal pain since the publication of the RCOG's report, further research was still needed and, therefore, that was being taken forward with regard to those issues, and I apologise, I think I should make sure that you have a full note on this by tomorrow morning of exactly where we are on that issue.

  Q395  Graham Stringer: As to whether there is any current work going on?

  Dawn Primarolo: Indeed.

  Q396  Graham Stringer: This is a very difficult question, but do you believe that foetal pain should be considered when considering the upper time limit on abortion? Is it an issue as opposed to viability or vitality?

  Dr Adshead: I think, as the Minister has already said, the Royal College of Obstetricians and Gynaecologists recommends that foeticide occurs before an abortion is performed so that, if there is any doubt on the gestational age, a cautionary principle applies so that abortions carried out above 22 weeks ensure that there could be no foetal pain. That does not take away from the fact that the evidence suggests that foetal pain is not felt before 26 weeks, but we would support obviously ensuring that there is no possibility of foetal pain.

  Q397  Chairman: Are you saying that if in fact your research, which you are going to let us know about tomorrow, demonstrates that foetal pain is a distinct possibility, say, at 22 weeks, that would immediately trigger a change in your guidelines?

  Dr Adshead: No, I do not think it would. I think foetal pain is separate from viability and the child's ability to be born alive and the implications for long-term disability.

  Q398  Chairman: I am just trying to clarify that.

  Dr Adshead: What I was saying is that I think it is critical absolutely we take the precautionary approach of ensuring that foetal pain is not part of the abortion procedure because clearly we would not want that to happen and we fully support the Royal College of Obstetricians and Gynaecologists' guidelines on this.

  Q399  Mrs Dorries: Many people would think that foetal pain was an issue in terms of the upper limit because foetal pain indicates that the foetus may be sentient at that point. Is the Minister aware, or the Deputy Chief Medical Officer, of the work done by Dr Anand and is the Minister aware of the report which was put before Congress last week, the scientific appraisal of foetal pain and conscious, sensory perception which looked into this complete issue? The RCOG website, and I note your comments that you take your advice from the RCOG, Dr Anand is probably the world's leading authority on foetal pain and yet the RCOG queried who he was on their website this week, which is certainly surprising to many people.

  Dawn Primarolo: I think I made it clear at the beginning that all of the evidence as we take it forward is looking at the consensus of opinion and some of these areas are extremely difficult and this one is. As Fiona has said, the current position of the Government rests on the advice we have now and erring on the side of caution with regard to procedures and what we will need to do, because this is an issue that is raised, is to ensure that we have the latest research and evidence and that we are able to give ourselves a position that is based on the consensus. Sometimes, people want us to look at experience abroad and then at other times they do not want us to, depending on what the subject is, so to drive that middle route. I absolutely am not disagreeing with what you are saying and I am saying that that is what we seek to do, but that is the constraint that we are operating under.

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