24 March 2016https://www.dhsspsni.gov.uk/publications/guidance-hsc-professionals-termination-pregnancy-northern-irelandThis long-awaited document opens as follows: This guidance aims to provide clarity on the law framing termination of pregnancy in Northern Ireland. It is imperative that health and social careprofessionals understand their responsibilities under the law.The guidance claims it does not change the law, but it does interpret the law differently from in the past in some ways. It also adds several new recommendations which, although falling short of being required, are insisted upon, even while acknowledging that they are not in the existing law. While the guidance offers a more liberal interpretation of the law in some areas, it also insists on the continued criminalisation of most abortions in Northern Ireland and stresses the punishments for breaking the law, especially by health professionals. In a few cases, it appears to accommodate more than one point of view, but this raises concern that eventually these might be open to legal challenge. The bottom line, however, as the guidance stresses, is that in any conflict, it is the law which takes precedence.The main points are as follows:In Northern Ireland, under existing law, it is lawful to perform a termination of pregnancy only if:
- it is necessary to preserve the life of the woman, or
- there is a risk of real and serious adverse effect on her physical or mental health, which is either long term or permanent.
It is for a medical practitioner to assess, on a case by case basis, using their professional judgement as to whether the individual woman’s clinical circumstances meet the grounds for a termination of pregnancy in Northern Ireland. These laws are: sections 58 and 59 of the Offences against the Person Act 1861 and section 25 of the Criminal Justice Act (NI) 1945.The guidance does not provide a list of medical conditions that would allow abortion, given the range and severity of any such condition. Instead, the document stresses again and again the need for clinical judgement on the part of health professionals, and requires them to show reasonable grounds with adequate knowledge, when reporting having carried out an abortion. In support of such judgement, it recommends seeking specialist support for any decision.It states that fetal abnormality, including a fatal fetal abnormality, is not per se permitted under NI law. However, it would appear that the situation faced by Sarah Ewart in 2013, has been resolved. She was refused an abortion even though the fetus was anencephalic, because at 20 weeks when this was discovered she was told it was too late. This guidance states that the impact of a fetal abnormality on a woman’s physical and/or mental health can be taken into account. As this issue has been the subject of increasing calls to reform the law itself, this section is extremely important and is likely to be seen as opening a door. However, later in the document, the guidance quotes a previous court judgement (Bourne 1939) in which the legality of an abortion “to save the woman’s life” in a case involving multiple rapes, was defined such that the continuance of the pregnancy would be to make the woman “a total physical or mental wreck”. If the bar remains that high, then perhaps no door has been opened after all. This may remain a contested area.The guidance clarifies that where protecting the woman’s health and life may put the fetus at risk, health professionals must put the protection of the life and health of the woman first. At the same time, it states that if the fetus is considered capable of independent survival, steps must be taken to preserve its life. Yet the guidance notes that there is no upper time limit on abortion if the woman’s life and health are threatened. This is an important difference to the law in the south of Ireland.The guidance goes beyond the law when it says that in deciding whether to allow an abortion: “While not a requirement of the law, it is recommended that two doctors with appropriate skills and expertise should undertake the clinical assessment.” This is in addition to the recommendation to seek specialist involvement. And these recommendations are repeated and stressed even while acknowledging that this is not a legal requirement. Is this because there is concern that any abortion may be challenged in the courts and is a warning to doctors to have all their armour about them?The guidance notes that the NI abortion law does not permit conscientious objection per se, and that related professional regulations restrict the extent of objection permitted. While the guidance says such objection should be accommodated where possible, it makes it clear this must not put the woman at risk, and that personal beliefs should not be expressed in inappropriate ways. The guidance puts the duty of care first, especially in emergency situations, where it says that such objection cannot justify failing in the duty of care to the patient.Section 5 is an important one, in which the guidance goes further than might have been expected. It says:“- Counselling must support women to come to their own decisions.- Support and advice must respect the personal views of the woman and enable her to make her own informed choices.- It is not unlawful to inform a woman of services available in other jurisdictions.”Moreover, regardless of where a termination has taken place, the woman has a right to counselling, support services and after-care if requested. This is crucial for women using abortion pills at home as well as those returning from having an abortion abroad.Section 6 discusses whether it is required to report a woman for having had an illegal abortion in Northern Ireland, given the importance of the duty of confidentiality. However, reporting another health professional for carrying out an abortion thought to be illegal does not get the same hesitation.The guidance says:“Health and social care professionals have a duty of care to their patients.-Health and social care professionals working in clinical situations need to be assured that procedures they are involved in are lawful.-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.”It is highly significant that the guidance acknowledges that women in NI are using the abortion pill, and that the symptoms of such an abortion are the same as those of a natural miscarriage. Dr Fiona Bloomer argues that the guidance may take the chill factor out of dealing with such circumstances if a woman who used the pills and then seeks post-abortion care, which she likens to recommending a “don’t ask‒don’t tell” situation for women and health professionals alike. She also thinks the language throughout the document is more measured and more in line with medical terminology.