Examination of Witnesses (Questions 380-399)
RT HON
DAWN PRIMAROLO
MP, DR FIONA
ADSHEAD AND
PAULA COHEN
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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