R (on the application of Christian Concern) v Secretary of State for Health and Social Care [2020] EWCA Civ 1239
The Court of Appeal has determined that the Divisional Court was right to refuse permission to bring judicial review proceedings challenging a ministerial decision to approve “the home of a pregnant woman” as a “place” where early medical termination of pregnancy (i.e. via medication) could occur under the Abortion Act 1967.
Pursuant to the exigencies of the COVID-19 pandemic, the Secretary of State for Health and Social Care utilised powers under sections 1(3) and 1(3A) of the Abortion Act 1967 (as amended in 1990) to permit women to take both of the two drugs necessary to effect an early medical abortion at home. Prior to the change, since 2018, only the second of the two drugs could be self-administered by the pregnant woman at home. The first had to be taken in the clinic providing access to the treatment.
In a previous Special Issue, QMLR covered the decision of the Divisional Court ([2020] EWHC 1546 (Admin)), which refused permission to challenge the decision on all eight proposed grounds of review, namely:
- The decision was ultra vires s.1 of the Abortion Act 1967;
- The decision was contrary to the legislative purpose of the Act;
- The decision was irrational;
- The decision was tainted by constitutional impropriety;
- The decision was in breach of both substantive and procedural legitimate expectations;
- There was a failure to take into account irrelevant considerations and/or conduct sufficient enquiries;
- There was a failure to carry out a public consultation; and
- The decision entailed human rights breaches under s.6 of the Human Rights Act 1998.
Permission to appeal was granted in respect of two aspects of the Divisional Court’s decision:
- The court had erred in refusing permission to challenge the SS’s decision on the basis that it was ultra vires the Abortion Act 1967; and
- It had erred in refusing permission to challenge the decision on the basis that it was contrary to the legislative purpose of that Act.
Ultra vires
The vires argument was based on phraseology in s.1 of the Abortion Act 1967 which required that termination was carried out “by a registered medical practitioner” (emphasis added). It was argued for Christian Concern that the approval of a pregnant woman’s home for the purpose of both starting and completing medical termination (through the taking of the first and then the second drug), when she may not have had a consultation with a doctor, meant that this requirement was bypassed; the termination was not carried out “by” a registered medical practitioner in such circumstances.
The Court of Appeal disagreed. Case law had already established that the words required the practitioner to be in charge of (and to have responsibility for) the process, but not to be personally involved for carrying it out (see Royal College of Nursing of the United Kingdom v Department of Health and Social Security [1981] AC 800 and SPUC Pro-Life Scotland Ltd v Scottish Ministers 2019 SC 588).
It was also important to consider the way in which medical science and prevailing conditions had changed – the enabling provision under s.1(3A) of the Act permitted the SS to be responsive to such changes. Medical science now meant that an early medical abortion could be effected entirely via medication safely, and societal conditions had also moved in that (a) it was now possible to have detailed consultations digitally (the court referred to this as “tele-medicine”) and (b) there was a pressing need for processes which were responsive to the pandemic.
Finally, it noted that there had been no challenge to the change in 2018 which permitted the second of the two drugs to be taken at home. It followed that the principle of approving a pregnant woman’s home for the self-administration of such medication had been accepted as intra vires the Act. There was no evidential basis for distinguishing between the two medications.
Legislative purpose
The Claimant had advanced the classic public law argument (based on Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997) that no statutory power is unfettered: it must be exercised so as to promote the purpose of the statute conferring it and not to frustrate that purpose. It was argued that the purpose of the Act was to ensure that abortion treatment was provided with proper care and skill, in places which were safe and hygienic, and where women would not be exposed to pressure. Enabling women to both begin and complete abortion treatment at home – an unregulated environment – thwarted that legislative purpose.
At [40] of her judgment, Nicola Davies LJ described the purpose of the Abortion Act as follows:
“The purpose of the 1967 Act was to broaden the access of a woman to a legal termination of pregnancy, approved on a specified ground(s) by an RMP and provided in a place which was deemed safe for the relevant medical process.”
In this case, thanks to the development of medical science and technology, the relevant medical process was simply the consumption of medication. A woman’s home was a safe environment for that process. Moreover, the Court of Appeal agreed with the Divisional Court that the approval – which was specifically time-limited and tied to the pandemic – was implemented in order to address the risk of women not having access to abortion treatment during lockdown, and thus seeking treatment in environments which were wholly unsafe.
Comment
When litigation turns on the interpretation of a statutory provision, its significance is very often confined to the specific issue or context which the particular case is addressing. After all, the meaning of statutory words will always depend on their statutory context and the kinds of situations in which they are intended to apply.
That may be the case here, but it will be interesting to see if this case is cited or applied in the future in other medical contexts. After all, it does address issues such as the meaning of “treatment”, what it means for such treatment to be administered “by” a registered medical practitioner, and when and why a medical practitioner remains “in charge of” or “responsible” for medical treatment, although it is not carried out directly by him/her. Those are all issues which could easily come up in any number of clinical negligence cases. What this space, or more specifically, keep checking back in with QMLR!
