6Information for healthcare professionals and women and girls
Guidance for health and social care professionals on termination of pregnancy in Northern Ireland
84.We have heard evidence about guidance for healthcare professionals on abortion. The Department of Health (NI) has responsibility for this guidance but had not published any prior to 2007 when the first draft guidance was published, issued and then withdrawn. The Family Planning Association for NI (FPA NI) initiated a series of legal cases on the issue of guidance.
Draft guidance published for consultation in 2013
85.In 2013, draft guidance was published for consultation. We have heard evidence about the impact it had on the environment in which women and girls in Northern Ireland are seeking an abortion. Dawn Purvis, former CEO of the Belfast Marie Stopes clinic (now closed) told us that the draft 2013 guidelines were written in such a way that they created a “chill factor” amongst clinicians. This is despite the fact that the draft guidance was “never issued and it should not have been acted upon”, according to Alasdair MacInnes, of the Family and Children’s Policy Directorate in the Department of Health (NI).100
86.Furthermore we have been told by the Royal College of Obstetricians and Gynaecologists about a “circular sent to all Obstetricians and Gynaecologists by the Attorney General in early 2013, advising them to ensure that they were practicing within the law and that failing to do so put them at risk of prosecution and imprisonment.”101 The Royal College described what happened after this:
Following this, some health trusts sought legal advice with respect to the “mental health of the mother”, the legal opinion being given that the woman had to have a psychiatric illness in order to proceed lawfully. There now existed differing legal interpretations of the law and a lack of clarity as to what was meant by “an adverse effect on the mental health of the mother”, with doctors feeling that the bar was now set too high. The law had not changed, but healthcare professionals were concerned as to how to proceed in such cases.102
Yet this has been denied by Maura McCallion of the office of the Attorney General for Northern Ireland. Ms McCallion told us, “We have no record of [the Attorney General] writing a letter to clinicians.”103 Ms McCallion went on to say that the Attorney General “would not be writing to clinicians. He would advise Ministers and work with the Department. He does not write to clinicians.”104
87.There will continue to be confusion amongst professionals unless issues like this can be resolved and communications to professionals provide clarity.
Finalised guidance published in 2016
88.The current guidance for health and social care professionals on termination of pregnancy in Northern Ireland was published in March 2016.105 In the introduction it says:
This guidance recognises that women must be made aware of the options and choices available to them under the law in Northern Ireland. Support and advice must respect the personal views of the woman and enable her to make her own informed choices.
Regardless of where a termination of pregnancy has been carried out, where necessary, support must be provided for individuals through aftercare services including counselling and other psychological support services. It is the responsibility of Health and Social Care Trusts to provide access to aftercare support for all women where it has been assessed to be required.
As in all areas of health and social care practice, professionals are obliged to comply with the law, and the guidance clearly sets out the maximum penalties which may be imposed in the event of conviction for offences related to termination of pregnancy or associated acts.106
89.Later, the guidance discusses in more detail situations where women and girls may be seeking lawful abortion in other jurisdictions in circumstances where it would be unlawful in Northern Ireland:
In such circumstances it would be lawful to provide a pregnant woman in Northern Ireland with information about the circumstances in which it may be lawful to terminate her pregnancy if she was in another jurisdiction. Again it would be lawful to advise her that she is free to travel to such other jurisdiction for the purposes of ascertaining whether it would be lawful to have her pregnancy terminated there, and, if so of securing its termination.107
90.The guidance goes on to state:
The courts in Northern Ireland have never considered the issue of whether it would be lawful to ‘advocate or promote’ in Northern Ireland the termination of a pregnancy in another jurisdiction (in circumstances where it would not be lawful if carried out in Northern Ireland but would be lawful if carried out in that other jurisdiction).108
91.It is surprising that the guidance says this, given that the objective of guidance is to give clarity. Furthermore, it introduces wording of ‘advocate or promote’ which is unclear and further obscures an issue that already lacks clarity for professionals.
92.In relation to healthcare professionals’ obligations to report unlawful abortions to the police, the finalised guidance states that; “Health and social care professionals must balance the need for confidentiality of patients with the obligation to report unlawful terminations of pregnancy to the police and the need to protect others from risk of serious harm.”109 Dr Michael McBride, Chief Medical Officer for Northern Ireland, told the Committee in oral evidence in Belfast on 25 January that the 2016 guidance provided “much more balanced advice to clinicians on those albeit limited circumstances where the termination of pregnancy in Northern Ireland was lawful.”110
93.However, the Royal College of Midwives told us in their written submission that “the continued absence of clear guidance regarding the law on abortion in Northern Ireland (NI) or how it is to be applied in practice means that healthcare staff in NI are currently working in an atmosphere of fear, erring on the side of caution in every circumstance.”111 Likewise, the Royal College of Obstetricians and Gynaecologists told us that, “the current situation is unacceptable and leaves doctors, nurses and midwives working in a precarious legal vacuum in this core part of women’s sexual and reproductive healthcare.112 We note that official statistics show that only 12 abortions were performed in public hospitals in Northern Ireland in 2017–18.
Doctors’ duty of care to their patients
94.Witnesses giving oral evidence in Antrim on 24 January told us that they felt the law strikes the right balance. One woman told us; “the law on abortion in Northern Ireland strikes the difficult but delicate balance between the life of the unborn and the life of the mother.”113
95.However, we have been concerned to hear evidence from medical professionals and official bodies that the law and guidance on abortion conflicts with doctors’ duty of care towards their patients. The General Medical Council (GMC) is the regulator for doctors in the UK. It gave evidence to us in a session in Westminster on 12 February. When asked whether there is a problem with the law or whether there is a problem with the way the law is being interpreted, Dr Colin Melville, Medical Director and Director of Education and Standards at the GMC, told us:
I think the answer is both/and, as I would understand it. [ … ] there is uncertainty about some of the interpretation of the law because it has not been tested. There is also a question about how the law could be changed to be more appropriate for use in Northern Ireland. [ … ] The law as it stands is an issue and the document that referred to the report on fatal foetal abnormalities is one example where they show that there is a concern about what the actual law states.114
96.We heard similar concerns from others submitting evidence.115 The Royal College of Obstetricians and Gynaecologists told us that the current legal situation means healthcare professionals in Northern Ireland “struggle to provide support for women requesting an abortion or safely manage any post-abortion complications.”116
Doctors’ duty of confidentiality to their patients
97.The GMC also discussed a tension created by section 5 of the Criminal Law Act 1967 (Northern Ireland) under which there is a legal obligation to report criminal offences to the police. The 2016 guidance says in this respect:
the health and social care professional need not give that information if they have a reasonable excuse for not doing so; the discharge of their professional duties in relation to patient confidentiality may amount to such a reasonable excuse. Professionals should be clear, however, that patient confidentiality is not a bar to reporting offences to the police.117
98.Professor Melville told us there is a challenge for doctors in how the duty of confidentiality operates when abortion in Northern Ireland is a crime, except in certain circumstances, and being complicit is also a crime. Referring to guidance for doctors on confidentiality,118 Professor Melville said:
The professional is conflicted in their duty of confidentiality to the patient on the one hand, and in the potential that their actions or inactions may be interpreted in law as contrary to what their duty of confidentiality requires.[ … ] The conflict lies in the difference between what the guidance sets out as their duty and what the law prescribes as requiring them to report.119
Information provided to women and girls by healthcare professionals
99.The evidence we have received suggests that there is confusion about what information healthcare professionals can provide to women seeking lawful abortions in other jurisdictions, including in England where women and girls from Northern Ireland can now access free abortions on the NHS. Dawn Purvis told us that there is a “fear” among many clinicians and healthcare professionals that if they have leaflets from organisations such as the FPA or Marie Stopes on British Pregnancy Advisory Service they may be breaking the law or be reported.120
100.One woman told us about her own experiences:
no one could ever tell me I could still have a termination in England, I didn’t know this. The doctors here seem to be afraid to even give you any kind of information in case it gets linked back to them, that they had helped you have a termination.121
This witness told us that she had to use the internet to search for a private clinic in England but when she called them was told it was too late because the procedure had to be carried out before 24 weeks. She said, “I didn’t know that I could have had a termination. In fact, I didn’t find that out until six months after my daughter was stillborn. I was 24 weeks on that day, or 23 weeks and six days, and [Name] was stillborn at 34 weeks and five days.”122 The witness described the impact this process had on her:
So I had almost 15 weeks in this pure hell. It was just torture. Every day I wondered, “Is this going to be the day?” and I would wake up and you know the first few seconds in the morning, before you are actually really awake, and you don’t remember, and then it hits you and it just feels like this horrible weight on your chest and you think, “God, I have to do this again.”123
101.Dr Paul Coulter of the Christian Medical Fellowship124 told us that information for doctors should be provided by the Department of Health or an agency of it.125 However, in relation to doctors signposting patients to the Family Planning Association which is funded by the Department of Health, the Chief Medical Officer said that, “There is absolutely no impediment. The guidance made this crystal clear in March 2016 and I am surprised that there are still any concerns in that respect.”126
102.Dr McBride made the distinction between a doctor providing information to patients about lawful abortions in other jurisdictions and referring to those abortion services. He said; “it is not clear whether health professionals can formally refer into those services and whether it would be lawful to do so or whether it would be complicit with an act that is unlawful in this jurisdiction but is lawful in the other jurisdictions.”127 Professor Melville of the GMC went further saying that “referral itself, under the current 1861 law, would [ … ] be considered a crime”128 and Maura McCallion told us: “It is down to the law of aiding and abetting. [ … ] if there are harmful consequences in Northern Ireland then assisting could still be an offence.”129
103.We asked the Secretary of State for Northern Ireland, the Minister for Women and Equalities and the Attorney General for Northern Ireland’s office whether they thought women understood the situations in which abortion was permitted and that they could travel to other jurisdictions. The Minister for Women and Equalities, Penny Mordaunt, told us that the cases she had heard of would indicate that “awareness is not great.” She said that:
Services that are providing information to people are limited about the ongoing discussions they can have with people because they are concerned about retaining phone records, telephone numbers and so forth. It would certainly appear that healthcare professionals and others are nervous about what advice they can give. The situation is not ideal.130
104.However, Maura McCallion from the office of the Attorney General for Northern Ireland said information about the availability of services outside of Northern Ireland can be given to women and they can be told they can travel. She said; “There seems to be a bit of discussion about when that information becomes assistance. That is where the law is not clear. It is a grey area and the guidance flags that up. That seems to be what the Department of Health are getting advice on at the moment.”131
Information about UK Government funding for women and girls to access free abortion in England
105.The UK Government funding for women and girls in Northern Ireland to access free abortions on the NHS in England has now been in place since June 2017 but there has been no guidance on this for doctors in Northern Ireland.132 The Northern Ireland Human Rights Commission told us that it had been told by the Department of Health in September 2018 that legal advice was being sought on whether it could give an information leaflet to GPs on the Westminster scheme. Mr Allamby, Chair of the Commission, said that this was an unsatisfactory circumstance and noted that: “Either this advice is taking an enormous length of time to get to them or they are not acting on whatever the advice is. [ … ] there is an inertia within the Department of Health in Northern Ireland that borders on paralysis about offering straightforward information.”133 Secretary of State for Northern Ireland, Karen Bradley, told us that; “In terms of the guidance legislation, the Northern Ireland (Executive Formation and Exercise of Functions) Act 2018, the section 4 guidance is clear that the Department of Health can update its guidance.”134
106.Since giving oral evidence, the Minister for Women and Equalities has provided us with further written evidence about the legality of medical professionals in Northern Ireland referring patients to the scheme providing free abortions on the NHS in England.135 The Minister told us that the scheme was designed to be as accessible as possible, without the need for a referral from a medical professional in Northern Ireland. She stated that:
We were satisfied that this would not preclude such a professional providing information in relation to such services on the basis of assurances given to the UK Government by the Department of Justice in Northern Ireland, which in turn, relied on the public assurances given by the Director of Public Prosecutions for Northern Ireland (DPP) in 2013 in a radio interview [ … ]
The Minister provided us with correspondence between the DPP and Amnesty UK regarding this point.
107.The Minister goes on to say that some women in Northern Ireland have not only not been informed about the services available to them in England, but it is likely that “social and cultural caution about abortion rights in Northern Ireland” mean they have not been advised about circumstances in Northern Ireland where abortion provision would be lawful. The Minister says she is keen to see appropriate actions to address the ‘chilling effect’ that is so evident from our inquiry. She told us that it would be in the public interest for the DPP to put his 2017 assurances on a more formal and transparent footing and that this would constitute a ‘development’ to trigger revision and recirculation of the guidance for healthcare professionals for the purposes of guidance issued by Secretary of State for Northern Ireland under section 4 of the Northern Ireland (Executive Formation and Exercise of Functions) Act 2018. The Minister also said that, “Working with the Department of Health and Social Care here in Westminster, we could consider how best to raise awareness of the travel scheme. There may, for example, be more we could do to enable relevant information to feature online.”136
108.There can be a conflict between doctors’ duty of care to their patients and the law, for example where a doctor might consider that referring a patient to lawful abortion services in another jurisdiction is medically the best course of action but believes that the law does not allow him or her to do so.
109.There can also be a conflict between doctors’ duty of confidentiality to their patients and the law because of section 5 of the Criminal Law Act 1967 (Northern Ireland) which creates an obligation to report a criminal offence.
110.The UK Government introduced funding for women and girls in Northern Ireland to access abortion provision in England in 2017. Doctors have still not been provided with information from the Department of Health NI about advising patients about the scheme and patients are not getting the information they need.
111.Despite the requirement for ministers to ensure that any new policy is lawful, the Chief Medical Officer told us that he thinks there are questions about the legality of doctors in Northern Ireland making referrals to this scheme.
112.The Government Equalities Office should immediately publish to us, as the body that scrutinises its spending, advice on the legality of making referrals to the funded scheme, following which the Department of Health for Northern Ireland should reissue guidance for healthcare professionals on abortion to make it clear that referring patients to the funded scheme is not unlawful.
Information for parents about the remains of a foetus or unborn child
113.We have heard about the often tragic situations where women and girls need to make decisions about the remains of the foetus or unborn child but are not provided with the information they need, particularly where they have travelled outside of Northern Ireland to access an abortion. The remains may be wanted so that the parents can give the foetus or unborn child a funeral or for the purposes of medical testing where there has been a foetal abnormality. In the case of victims and survivors of rape and incest, the remains may be required as evidence in any criminal proceedings.
114.Chair of the Northern Ireland Human Rights Commission, Les Allamby, told us that he was very mindful of the practical difficulties that women face and that this had an impact on professionals in Northern Ireland. In particular he referred to the experience of Dr Caroline Gannon, former head of paediatric pathology in Northern Ireland.137 Dr Gannon is reported as having resigned in 2016 over interventions by the Attorney General for Northern Ireland on abortion laws surrounding fatal foetal abnormality and that “the final straw was having to advise a couple to use a picnic cooler bag to return their baby’s remains to NI following an abortion in England.” Dr Gannon is reported as saying that, “I just felt I was acting unethically by taking part in this system where parents are denied a voice in what happens to their baby.”138
115.Women and girls who travel outside of Northern Ireland to access an abortion do not have enough information about their options for bringing the remains of the foetus or unborn child home for personal reasons, medical purposes or as evidence in the event of any criminal proceedings.
116.There should be specific information provided to women and girls about their rights to bring home the remains of the foetus or unborn child for personal reasons or for medical purposes or in the event of criminal proceedings.
117.The Border Agency must develop clear protocols for ensuring that there is a clear pathway for families who are travelling across borders with foetal remains which provides them with dignity.
105 Guidance for Health and Social Care Professionals on Termination of Pregnancy in Northern Ireland, March 2016
106 Guidance for Health and Social Care Professionals on Termination of Pregnancy in Northern Ireland, March 2016
107 Guidance for Health and Social Care Professionals on Termination of Pregnancy in Northern Ireland, March 2016
108 Guidance for Health and Social Care Professionals on Termination of Pregnancy in Northern Ireland, March 2016
109 Guidance for Health and Social Care Professionals on Termination of Pregnancy in Northern Ireland, March 2016
117 Guidance for Health and Social Care Professionals on Termination of Pregnancy in Northern Ireland, March 2016
118 Confidentiality: good practice in handling patient information, General Medical Council, 2017
124 Christian Medical Fellowship represents over 5,000 doctors, 800 medical students and 400 nurses across the UK, including over 250 in Northern Ireland (ANI0126)
135 Appendix – Letter from the Minister for Women and Equalities, 14 March 2019
136 Appendix – Letter from the Minister for Women and Equalities, 14 March 2019
138 Doctor quits over NI attorney general’s abortion interventions, 14 September 2016, BBC website, accessed April 2019
Published: 25 April 2019