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Kenya Law / Blog / Case Summary: UK Supreme Court Rules that Health Care Workers Right to Conscientiously Object to Treatment Does Not Extend to the Delegation of that Work to Another Co-Worker

UK Supreme Court Rules that Health Care Workers Right to Conscientiously Object to Treatment Does Not Extend to the Delegation of that Work to Another Co-Worker

UK Supreme Court Rules that Health Care Workers Right to Conscientiously Object to Treatment Does Not Extend to the Delegation of that Work to Another Co-Worker

Greater Glasgow Health Board (Appellant) v Doogan and another (Respondents) (Scotland)

[2014] UKSC 68 on appeal from [2013 CSIH 36]

Supreme Court of the United Kingdom

Lady Hale (Deputy President), Lord Wilson, Lord Reed, Lord Hughes, Lord Hodge

December 17, 2014

Report by Monica Achode

Background to The Appeals

The UK Abortion Act 1967 as amended set out the circumstances in which the termination of a pregnancy could lawfully be brought about and required the termination to take place in a National Health Service Hospital or an approved clinic. Section 4(1) established a right of conscientious objection. It provided that no person would be under any duty, whether by contract or by any statutory or other legal requirement, to participate in any treatment authorized by the Act to which they had a conscientious objection unless, pursuant to subsection (2), it was necessary to save the life or prevent grave permanent injury to the physical or mental health of a pregnant woman.

The respondents were two experienced midwives employed at the Southern General Hospital in Glasgow as Labour Ward coordinators. Both were practicing Roman Catholics who had informed their employer of their conscientious objection to taking part in the termination of pregnancy. A small proportion of terminations took place in the Labour Ward rather than the Gynaecology Ward where a midwife would be assigned to give these patients one to one care. The Labour Ward coordinator booked in patients, allocated staff in the ward, and supervised and supported midwives.

The respondents did not wish to undertake these tasks in connection with patients undergoing terminations. They were dissatisfied with the arrangements made to accommodate their objections and raised a grievance with their employer. The hospital took the view that delegation, supervision and support did not constitute ‘participating’ in the treatment and rejected the grievance. The respondents brought proceedings for judicial review challenging the decision letters received as a result of the grievance procedure.

They were unsuccessful before the Lord Ordinary but succeeded before an Extra Division of the Inner House, which granted a declaration that the scope of section 4(1) included ‘the entitlement to refuse to delegate, supervise and/or support staff in the provision of care to patients’ undergoing terminations save as required by section 4(2). This was a wide interpretation of the right, which was said to extend to ‘any involvement in the process of treatment, the object of which was to terminate a pregnancy’. The respondents’ employers appealed to the Supreme Court.

UK Abortion Act 1967

4 Conscientious objection to participation in treatment.

1) Subject to subsection (2) of this section, no person shall be under any duty, whether by contract or by any statutory or other legal requirement, to participate in any treatment authorized by this Act to which he has a conscientious objection:

Provided that in any legal proceedings the burden of proof of conscientious objection shall rest on the person claiming to rely on it.

2) Nothing in subsection (1) of this section shall affect any duty to participate in treatment which is necessary to save the life or to prevent grave permanent injury to the physical or mental health of a pregnant woman.

3) In any proceedings before a court in Scotland, a statement on oath by any person to the effect that he has a conscientious objection to participating in any treatment authorized by this Act shall be sufficient evidence for the purpose of discharging the burden of proof imposed upon him by subsection (1) of this section.

Issue:

(i). Whether the precise scope of the right of conscientious objection as provided for by section 4 of the UK Abortion Act 1967 encompassed the right to refuse to give medical treatment

Constitutional Rights – rights to respect for religious beliefs – where the health care providers were Roman Catholics – where part of their duties involved the termination of pregnancies for patients – duty of care owed to patients by members of the health care profession – where the health care provider was under an obligation to refer the case to a professional who did not share the objection – whether their employers had a duty to make reasonable adjustments to the requirements of their job to take account of their religious beliefs – European Convention on Human Rights Article 9

Words and phrases – meaning – meaning of “participate in” and “conscientious objection” – course of treatment to which conscientious objection was permitted – whether Parliament had contemplated a narrow interpretation of the Act when it was passed – UK Abortion Act 1967

Held

  1. The only question in this case is one of pure statutory construction: the meaning of the words ‘to participate in any treatment authorized by this Act to which he has a conscientious objection’. It was common ground that ‘any treatment authorized by this Act’ meant the process of treatment in hospital for the termination of pregnancy and that ‘participating’ meant actually taking part in that process, rather than the extended meaning given to participation by the criminal law.
  2. Questions of whether the respondents’ rights to respect for their religious beliefs protected by Article 9 of the European Convention on Human Rights had been unlawfully restricted, or whether their employers had a duty to make reasonable adjustments to the requirements of their job to take account of their religious beliefs did not fall to be decided in this case, but were better suited to resolution in the proceedings which the respondents had also brought in the employment tribunal. Nor did the Supreme Court have the evidence from which the impact on a safe and accessible abortion service of a wide or narrow interpretation of section 4(1) could be assessed.
  3. The course of treatment to which conscientious objection was permitted by section 4(1) was the whole course of medical treatment bringing about the termination of the pregnancy. It begun with the administration of the drugs designed to induce labour and normally ended with the ending of the pregnancy by delivery of the foetus, placenta and membrane. It also included the medical and nursing care which was connected with the process of undergoing labour and giving birth – the monitoring of the progress of labour, the administration of pain relief, the giving of advice and support to the patient, the delivery of the foetus, the disposal of the foetus, placenta and membrane and any specific aftercare required as a result of the process of giving birth. But the ordinary nursing and pastoral care of a patient who had just given birth was not unlawful before the Abortion Act 1967 and thus not made lawful by it.
  4.  A narrow meaning of the words ‘to participate in’ was more likely to have been in the contemplation of Parliament when the Act was passed, rather than the host of ancillary, administrative and managerial tasks associated with the acts being made lawful. ‘Participate’ means taking part in a hands-on capacity: actually performing the tasks involved in the course of treatment.
  5.  The appellant set out the list of tasks carried out by Labour Ward coordinators like the respondents and indicated which specific elements would be within the scope of section 4(1). These include providing advice requested by a midwife connected with the care of a particular patient undergoing a termination (as opposed to ordinary monitoring of all patients); accompanying the obstetrician on ward visits to those patients; providing part of the treatment in response to requests for assistance from the patient or from the midwife caring for her (but not responding by itself to such requests and making a referral if necessary); providing break relief personally for those midwifes; being present if medical intervention was required in connection with the treatment; and forming judgments about the progress of these patients personally.
  6. A necessary corollary of the duty of care owed to patients by members of the health care profession is that any conscientious objector was under an obligation to refer the case to a professional who did not share the objection.

The Supreme Court unanimously allowed the appeal and set aside the declaration made in the Inner House.

Relevance to The Kenyan Situation

Under the Penal Code sections 158 to 160 the act of procuring an abortion is an illegality. It is only allowed under certain circumstances, eg to save the life of the woman, to preserve her physical health and to preserve her mental health. There is also the added conditionality that the abortion must be performed by a certified physician, with the consent of the woman and her spouse. Two medical opinions, one of which must be from the physician who has treated the woman and the other from a psychiatrist, are also required before the abortion is performed. The abortion must be performed in a hospital.

Once these conditions are met however, Kenya has no provision for the care giver to conscientiously object to taking part in the termination of pregnancy. It would be interesting to see such a case play out where the care giver argues their constitutional right to exercise their faith and refuse to render the services sought vis – a vis Article 43 which gives the patients rights to the highest attainable standard of health, which includes the right to health care services, including reproductive health care.

 

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