Conscientious objection provisions don’t extend to managerial or administrative tasks

Greater Glascow Health Board v Doogan [2014] UKSC 68

The Supreme Court held that right to conscientious objection in the Abortion Act 1967 (UK) does not extend to delegating to, supervising or supporting staff who are taking part in the termination of a pregnancy.  In making its decision, the Supreme Court took a strict statutory interpretation approach, holding that broader policy arguments and Article 9 of the European Convention on Human Rights were extraneous to that enquiry. 

Facts

The Abortion Act prescribes circumstances in which it is lawful to terminate a pregnancy in the United Kingdom.  Abortions performed contrary to the Act are deemed unlawful both under the Act and by virtue of preceding legislation.  Section 1 of the Act states that terminations can only be performed by registered medical practitioners and must take place in an approved hospital (unless the termination is required immediately).  Section 4 of the Act provides that a person does not have to "participate in any treatment authorised by this Act to which he has a conscientious objection".

The two petitioners to the Court were Labour Ward Co-ordinators employed by the Greater Glasgow Health Board.  The petitioners duties as Labour Ward Co-ordinators included management of resources within the Labour Ward, booking patients, allocating staff to patients, advice and support to mid-wives and occasionally taking part in direct patient care.   Upon commencing their employment in 1988 and 1992 respectively, the two petitioners informed the Board that they conscientiously objected to taking part in the termination of a pregnancy. 

A reorganisation of maternity resources in the Glasgow area in 2004 meant that an increased number of abortions took place in the Labour Ward (rather than in the Fetal Medicine Unit where they were previously performed).  The petitioners objected to performing their managerial roles of delegating, supervising and/or supporting staff providing care to patients throughout the termination process. The Board rejected their objection and the petitioners applied to the Supreme Court seeking judicial review of the Board's decision.

Decision

Lady Hale (with whom the other Justices agreed) gave the key judgment. She described the issue before the Court as one of 'pure' statutory interpretation to determine whether the petitioners' duties required fell within the scope of section 4 of the Abortion Act.  The Court answered this question by firstly identifying what treatment was authorised by the Abortion Act and secondly whether the petitioners' duties required them to participate in that treatment.

Treatment authorised by the Act

The Court considered a 'spectrum' of possible interpretations of "treatment authorised by the Act".  At one end of that spectrum, "treatment authorised by the Act" is limited to the actual causes of the termination; that is, only the administration of the drugs to induce labour. Such an interpretation would not cover care of the patient during the delivery of the foetus.  At the other end of the spectrum, as was argued by the petitioners, the scope of the treatment is to be determined by the scope of the conscientious objection (in other words, the scope is to be determined by the person to whom it applied) and could cover taking bookings for terminations, admissions, assigning mid-wives, supervision of all staff caring for the patient before and after the actual termination.  In between these two positions was the position put forward by the Board that the scope covers direct participation in the tasks from the administration of the drugs to the delivery of the foetus. 

The Court agreed with the interpretation provided by the Board.  Citing the House of Lord's decision in Royal College of Nursing of the United Kingdom v Department of Health and Social Security [1981] AC 800, the Court concluded that "treatment authorised by the Act" was the "whole course of medical treatment bringing about the end of the pregnancy", which included the administration of drugs, delivery of the foetus, nursing care associated with the labour and birth, administering drugs and disposal of the foetus.  Importantly, however, the Court observed that ordinary nursing and pastoral care of a patient following birth was not unlawful prior to the enactment of the Abortion Act and thus could not be considered treatment authorised by the Act for the purposes of objection.

The Court also observed that the right to conscientious objection provided by the Abortion Act does not affect any duty to participate in treatment which is necessary to save the life or prevent grave permanent injury to a pregnant woman.  That duty would include medical and nursing care during the process of termination that was necessary for such a purpose.

Participating in treatment

The next question for the Court to determine was whether the petitioners' duties required them to participate in those acts that brought about the end of a pregnancy.  In determining the scope of what is meant by "participate in", the Court looked at what Parliament would have contemplated when the Act was passed.  The Court concluded that it was unlikely that Parliament would have considered the host of administrative and managerial tasks associated with a termination as within the scope of section 4.  What Parliament was really contemplating was the "hands on" participation in the termination process and not the broader interpretation given to that phrase in criminal law.  The Court therefore concluded the majority of the roles to be performed by the petitioners were closer to administrative and ancillary and could not be conscientiously objected to.  These tasks included arranging terminations, allocating staff to terminations, providing support and guidance to midwives and assisting a patient's family.  The Court did however conclude that providing guidance to midwives directly on the care of a particular patient undergoing a termination was included within scope of section 4, along with any requirement to directly provide care to a particular patient undergoing a termination.    

European Convention on Human Rights

In determining the scope of section 4, the Court considered that it was not necessary to consider Article 9 of the European Convention on Human Rights (ECHR).  Article 9 requires all legislation to be interpreted in a manner that protects a person's right "to manifest his religion or belief in worship, teaching, practice or observance".  The Court considered that it did not have to consider the article as the answers given would be context specific and not necessarily point to a specific (wide or narrow) interpretation of section 4.   These were matters best suited to decision by an employment tribunal.

Commentary

The response to the decision has been mixed.  Pro-life groups have claimed the decision prevents pro-life doctors, nurses and health professionals from being able to progress their careers to upper management.  On the other hand, pro-choice groups have welcomed the decision for clarifying the scope of conscientious objection. 

The claims of the pro-life groups are probably overstated given that the decision confirms the previous understanding most health professionals had of the scope of the conscientious objection clause. Additionally, the Court suggested that while section 4 does not allow an employee to absolutely object, it would be sensible for an employer to accommodate an employee's "reasonable" objection.  That is, common sense should be adopted when dealing with conscientious objectors where resources allow their objections to be accommodated.

It is unfortunate that the Supreme Court decided to not divert from a strict statutory interpretation to consider the implications of Article 9 of the ECHR.  The Court has been seen by some as passing on a key opportunity to clarify the confusing case law around Article 9.  However, this point was not strongly argued by either party during the proceedings and the Court was not presented with the necessary evidence with which to make a decision on that point.  Some looking for direction on Article 9 may take some solace from Lady Hale's statement suggesting that employers accommodate an employee's "reasonable" conscientious objection.  

The full decision is available online here.

Jonathon Lunn is a Solicitor at DLA Piper.