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URL: http://www.bailii.org/scot/cases/ScotCS/2018/[2018]_CSOH_85.html
Cite as: [2018] ScotCS CSOH_85, 2018 GWD 25-316, [2018] CSOH 85, 2018 SLT 1033

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P61/18

OUTER HOUSE, COURT OF SESSION

OPINION OF LADY WISE

In the Petition of

SPUC PRO-LIFE SCOTLAND LIMITED

against

SCOTTISH MINISTERS

[2018] CSOH 85

Petitioner

Respondents

for

Judicial Review of the Decision to issue the Abortion Act 1967 (Place for Treatment for the

Termination of Pregnancy) (Approval) (Scotland) 2017

Petitioner: M Ross QC and Komorowski; Thorntons Law LLP

Respondents: L Dunlop QC and O’Neill (sol adv); Scottish Government Legal Directorate

15 August 2018

Introduction

[1] The petitioner is a society with an interest in promoting the belief that conception is

the starting point of all new life. It is opposed to abortion and has an interest in any decision

or enactment that relates to that issue. The respondents are the Scottish Ministers who have

made a decision to grant an approval in terms of section 1(3) and 1(3A) of the Abortion Act

1967 (“the 1967 Act”) that the petitioner seeks to reduce. In essence, the petitioner contends

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that the respondents’ decision to approve a pregnant woman’s home as a class of place

where treatment for termination of pregnancy may be carried out is unlawful. Termination

of pregnancy is a subject that invokes strongly held beliefs both for and against its

availability. This case concerns only the lawfulness of a particular decision made by the

respondents and not the merits of the general legislative provisions permitting termination

of pregnancy. In challenging a decision of the respondents to approve a woman’s home as a

place where termination of pregnancy can be carried out, the petitioner is not suggesting, by

implication, that it should be carried out elsewhere.

The applicable law

[2] The Abortion Act 1967 provides, by section 1(1) that a person shall not be guilty of an

offence under the law relating to abortion when a pregnancy is terminated by a “registered

medical practitioner” on certain other specified conditions with which this petition is not

concerned. Section 1(3) and (3A), following various amendments, are in the following

terms:

“(3) Except as provided by subsection (4) of this section, any treatment for the

termination of pregnancy must be carried out in a hospital vested in the Secretary of

State for the purposes of his functions under the National Health Service Act 2006 or

the National Health Service (Scotland) Act 1978 or in a hospital vested in a National

Health Service trust or an NHS foundation trust or in a place approved for the

purposes of this section by the Secretary of State.

(3A) The power under subsection (3) of this section to approve a place includes

power, in relation to treatment consisting primarily in the use of such medicines as

may be specified in the approval and carried out in such manner as may be so

specified, to approve a class of places.”

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The approval under challenge

[3] On 26 October 2017 the Scottish Ministers made the following approval in exercise of

the powers conferred by section 1(3) and (3A) of the 1967 Act:

“The Abortion Act 1967 (Place for Treatment for the Termination of Pregnancy)

(Approval) (Scotland) (2017)

…

Commencement

1. This approval comes into force on the day after the day on which it is made.

Interpretation

2. In this approval –

“home” means the place in Scotland where a pregnant woman is ordinarily resident;

“pregnancy” and “pregnant woman” are to be construed by reference to the

Abortion Act 1967; and

“treatment” means the taking of the medicine known as misoprostol.

Approval of class of place

3. The home of a pregnant woman who is undergoing treatment for the purposes of

termination of her pregnancy is approved as a class of place where treatment for

termination of pregnancy may be carried out where that treatment is carried out

in the manner specified in paragraph 4.

4. The treatment must be carried out in the following manner –

(a) the pregnant woman has attended a clinic where she has been prescribed

mifepristone and misoprostol to be taken for the purposes of termination of her

pregnancy; and

(b) the pregnant woman has taken mifepristone at that clinic and wants to carry out

the treatment at home.”

Submissions on behalf of the petitioner

[4] Senior counsel for the petitioner summarised the challenge made to the respondents’

approval as being two fold. First, a home is not a permissible class for the purposes of the

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legislation and secondly the approval issued runs counter to the requirement in the

legislation that abortion be carried out by a medical practitioner. It was not in dispute that

the interpretation of the provisions in question did not require consideration of the Hansard

Debates on the grounds permitted by Pepper (Inspector of Taxes) v Hart [1993] A.C.593.

However the respondents had produced a report of the House of Commons’ Science and

Technology Committee entitled “Scientific Developments Relating to the Abortion Act 1967”

from Session 2006 –07. While Ms Ross submitted that such a report could not provide a

legitimate aid to interpretation, she referred to certain extracts simply as background and in

anticipation of reliance to be placed on it by the respondents. She submitted that the Report

seemed to proceed on the basis that the purpose of section 1(3A) was to allow medical

abortion at home. However that view was formed, it did not proceed on a legal

understanding of the 1967 Act. The report did make clear that the committee was informed

that, in relation to the places where an abortion could be carried out, legal advice suggested

that legislative change would be necessary to render any such change lawful. The

conclusion of the report was simply to invite Members of Parliament to consider its terms

when looking at any amendment to the 1967 Act or regulations required to enable the

second stage of early medical abortion to be self-administered in a woman’s home. As the

approval now under challenge was simply a decision and not delegated legislation, there

being no regulation making powers conferred by the 1967 Act, the report was not of any

assistance and should be ignored.

[5] The Abortion Act 1967, passed over 50 years ago, is only seven sections long and

deals with an issue of social complexity. There has been judicial criticism in relation to its

lack of clarity and Ms Ross contended that a series of amendments have effected little

change to it. The central provisions are contained in section 1 and the decriminalisation of

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abortion only applies where the pregnancy is “terminated by a registered medical

practitioner”. As the Act is designed to provide protection for medical practitioners from

criminal law consequences of carrying out termination of pregnancy, clarity and certainty in

its provisions is particularly important, both for the medical practitioner and for the

pregnant woman involved. It was accepted that the terms of section 1(3) empowered the

Secretary of State (now the respondents) to approve specified places and that the addition of

section 1(3A) now included within that power approving a class of place where the

treatment consisted primarily in the use of medicines. The requirements of the Act included

that termination of pregnancy (i) is something that can only be carried out by a medical

practitioner, (ii) involves treatment, (iii) can be undertaken only in a place or class of place

approved by the respondents and also (iv) in terms of subsection (4) of section 1 there are

certain exceptions to the specified conditions where the life of the woman is at risk or on

other situations of necessity. Importantly, prior to 1990 the government could only specify

particular places. The ability to approve a class of place was introduced in 1991 by the

Human Fertilisation and Embryology Act 1990. Section 4 of the 1967 Act provides for

conscientious objection to participation and treatment. That exception had been the subject

of the UK Supreme Court decision in Doogan v Greater Glasgow and Clyde Health Board 2015

SC (UKSC) 32. Section 5 of the Act makes clear that abortion other than in accordance with

section 1 continues to be unlawful.

[6] Turning to the approval under challenge, produced at number 6/2 of process,

although it contains the heading “The Abortion Act 1967 (Place for Treatment for the

Termination of Pregnancy) (Approval) (Scotland) (2017)”such that it appears at first sight to

be a regulation, the document indisputably simply narrated the terms of a decision taken by

the respondents. The significant terms include the interpretation of “home” as the place in

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Scotland where a pregnant woman is ordinarily resident and “treatment” as being the

taking of the medicine known as misoprostol. Paragraph 3 of the document represents the

approval itself of the home of the pregnant woman undergoing treatment as a “class of

place” where termination of pregnancy may be carried out. That class of place is approved

only if treatment is carried out in the manner specified in paragraph 4. The requirements of

paragraph 4 are (a) that the pregnant woman has attended a clinic where she has been

prescribed mifepristone and misoprostol to be taken for the purposes of termination of her

pregnancy and (b) that the mifepristone has been taken at that clinic and that the woman

wants to carry out the treatment at home. While the document 6/2 represents the whole of

the approval under challenge, it was noteworthy that it had been sent to general

practitioners together with a letter, 6/1 of process, headed “Dear Colleague” from the Chief

Medical Officer for Scotland explaining what the approval is and indicating that

practitioners are expected to follow clinical guidance set out by the Scottish Abortion Care

Providers (SACP) Network provided as an annex to the letter. That guidance sets out a

number of criteria for the assistance of medical practitioners. Two passages were of note.

First, in paragraph 10 the guidance states that the patient should be advised of the standard

dosing interval between mifepristone and misoprostol which is 24 – 48 hours, based on

efficacy. The guidance accordingly directs that misoprostol should thus normally be

administered 24 – 48 hours after mifepristone, although guidance is also provided on the

possibility for longer dosing intervals. Doctors are also advised that they must record the

location of the place of treatment when completing the notification of abortion form and

they should tender certain advice to patients administering the misoprostol for

self-administration at home. Further, the guidance states in terms that if there is no adult

available to be at home with the patient then treatment as Early Medical Abortion at Home

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should not proceed. As it could not be contended by the respondents that the letter and

accompanying guidance were in any sense part of the approval, that approval had to stand

alone and Ms Ross questioned whether it was clear enough in its terms. The only conditions

set out in the approval were that the first stage of administering mifepristone had to be

carried out at the clinic and that the pregnant woman must “want to” administer the

misoprostol at home. It was submitted that effectively, the respondents, while purporting to

exercise power under section 1(3A), were in effect delegating the decision on approval of a

home to the medical profession. The class is so broadly defined that the individual general

practitioner is effectively required to decide on a case by case basis whether a particular

woman’s home is in fact a suitable place.

[7] It was unclear what would happen if a doctor did not comply with the guidance.

The difficulties arising from the separation of the guidance and the approval meant that if a

pregnant woman had no one at home and so the doctor refused to permit her to

self-administer the misoprostol at home the question as to whether the woman’s home was

still within the class of place approved would arise, Ms Ross submitted that the difficulty

was that the starting point in the approval was too broad because the home of every woman

who seeks an abortion is included. It simply could not be the case that every single home in

which a woman was ordinarily resident could be suitable for this procedure. If having

another adult present was important for safety that would require to be in the approval and

not in separate guidance although it was accepted that the respondents could re-draft the

approval to remedy that particular problem. In order to comply with the provisions of

section 1, abortions have to be carried out in safe and hygienic places. Where approval is

given for places that are an alternative to hospital or a clinic they have to meet those basic

requirements. Applying conditions only of (a) the home being the woman’s residence and

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(b) her wanting to take the drug there were insufficient. The capacity of a woman to seek to

take the drug at home was a necessary but not sufficient condition for her home to be a

suitable place. It was the respondents’ reliance on the general practitioner’s judgement

about whether a place is suitable that was objectionable. It was not legitimate for the

respondents to delegate to the medical profession to decide which homes were suitable

standing that the approval was an exercise of a statutory function. The absence of

conditionality in relation to safety or hygiene rendered the approval much too wide. The

respondents have sought to stretch the notion of a “class of place” in a way that the

interpretation of the primary legislation cannot bear. Even if it was to be argued that the

letter, approval and guidance all have to be read together that would answer only the

permissible class point at best and not the second main challenge of treatment having to be

by a medical practitioner.

[8] Turning to the authorities, Ms Ross submitted that the decision of the House of Lords

in Royal College of Nursing of the United Kingdom v Department of Health and Social Security

[1981] AC 800 provided answers to all the questions raised in these proceedings. There, the

Royal College of Nursing had sought to understand the extent to which nurses required to

carry out treatment for abortion. The Department of Health at the time had issued a circular

relating to the administration of abortifacient drugs. The issue was whether it was unlawful

to approve the administration of those drugs by nurses if directed to do so by a medical

practitioner. At first instance Woolf J refused to declare the circular unlawful. That decision

was reversed by the Court of Appeal. Thereafter the House of Lords allowed an appeal by

the Department of Health and Social Security in a 3:2 split decision. It was anticipated that

the respondents would rely on a passage from the first instance decision, reported at

[1981] 1 All ER 545 where Woolf J foresaw that in the future pregnancy might be terminated merely

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by the patient taking a pill. His view was that, although the process would have to be

initiated by the medical practitioner who must remain responsible throughout for its overall

conduct and control, any actions needed to bring a pregnancy to a conclusion could be

carried out on his instructions but not necessarily in his presence (page 553). Senior counsel

for the petitioner contended that the passage did not assist the respondents in this case

because, even on the hypothesis postulated by Woolf J the registered medical practitioner

would have to both initiate the procedure and strictly control it. It was not the contention of

the petitioner that physical presence by a doctor in the same room as the pregnant woman

was required but control by a medical practitioner was the issue.

[9] So far as the House of Lords’ stage of the case was concerned, a number of passages

were relied on. The case was heard before the amendment of the Act in 1990 and the

provision under discussion was section 1(3). Lord Diplock, one of the judges in the majority,

made a number of important points (at page 828) in relation to the interpretation of the

subsection. First, he considered it evident that parliament contemplated that treatment for

termination of pregnancy would be undertaken as a “team effort” in which junior doctors,

nurses, paramedical and other members of hospital staff would act on the instructions of the

doctor in carrying out each of the things that formed part of the whole treatment. Ms Ross

submitted that the reference to the “team” could not be suggestive of any self-administration

by a patient. Secondly, Lord Diplock made clear that anyone to whom a physical act at any

stage of treatment for the termination of pregnancy was delegated must be given specific

instructions and that those acts could then be carried out by “nurses or other members of the

hospital staff without medical qualifications”. Accordingly, counsel submitted that the

requirement that the treatment for termination of pregnancy must be carried out by a

registered medical practitioner must be considered in deciding whether a class of place was

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suitable. Lord Diplock had been clear that a doctor should always be available “to be

consulted or called on for assistance from beginning to end of the treatment”. Accordingly,

where any act bringing about the termination of pregnancy was not carried out by a doctor

him or herself, he or she must remain in charge of the treatment throughout and any

delegated act had to be carried out in accordance with his or her clear directions. The

respondents’ approval stretched beyond breaking point the meaning of “in charge” in this

context. Reference was made also to a passage of the judgment of Lord Keith of Kinkel at

page 835 where a team of a doctor and nurses was clearly contemplated even where

termination was by the use of abortifacient drugs. Lord Keith’s reference to the “safest

conditions attainable” being required for abortions was also significant. A combination of

the judgment of Lord Diplock and Lord Keith led to the proposition that abortion was only

lawful if carried out under conditions that were both safe and hygienic. Lord Roskill, the

third judge in the majority decision reiterated (at page 838) that the taking of steps by a

nurse would be fully protected provided that the entirety of the treatment for the

termination of the pregnancy was at all times under the control of the doctor even if he was

not present throughout the entirety of it. While physical presence was clearly not necessary,

Ms Ross submitted that the type of “virtual” presence contemplated by the respondents

would break the connection between the control by the doctor and the place as it was at the

time of the legislation being considered by the House of Lords in the Royal College of

Nursing case. The basic requirement was for a relationship between the place where the

treatment was carried out and the medical practitioner. On the face of it, the terms of the

approval under challenge were not sufficient, standing the lack of the relationship with the

treating doctor, to fall within the class of place category that could be lawfully approved.

While the petitioner’s position was that acceptance of either of the two main arguments was

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sufficient for the petition to succeed, there was to some extent an overlap between the two

because the concept of “place” has to have some purposeful context in that the place has to

be suitable for abortions to be carried out there.

[10] The Royal College of Nursing case was followed and approved in a decision of

Supperstone J in British Pregnancy Advisory Service v Secretary of State for Health [2012] 1 WLR

580. The claimant in that case was an independent health care provider outside the NHS

that wanted to provide treatment of abortifacient drugs prescribed in a clinic but taken at

home. The organisation sought a declaration that the administration of drugs to the

pregnant woman in this context was not “treatment for the termination of pregnancy” in

terms of section 1 of the 1967 Act. The claim was dismissed on the basis that treatment was

not restricted to diagnosis and treatment but included the taking of the drug and that a

pregnant woman would not be permitted to take such a drug at home unless her home had

been approved by the Secretary of State. Importantly, having rejected the argument that the

taking of an abortifacient drug was somehow not “treatment”, Supperstone J noted that if

drugs or tablets for termination of pregnancy were prescribed by the registered medical

practitioner and not taken by the woman, then the opportunity for treatment would have

been available but would not have been taken (para 24). Accordingly, prescribing the drug

is not the whole of the treatment; the act of administration of the drug is included in that

definition. It was clear that the Secretary of State could not delegate the classification

function in section 1(3A) to the medical profession and that only the Secretary of State (or

the Scottish Ministers) could approve the place. In anticipation that, under reference to

paragraph 32 of the BPAS case, the respondent would point out that Supperstone J referred

to the home being potentially in the wide range of places that the Secretary of State could

approve, counsel pointed out that the reference simply reflected the way in which BPAS

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decided to run the argument. The case was not a decision on home as a class of place but

related to the definition of the word “treatment”. In any event, there was no proposed

approval of home as a class of place at the time of the decision in that case. The high court’s

decision was that the legislation could not be circumvented by declarator of court.

[11] Reference was also made to the decision in Doogan v Greater Glasgow and Clyde Health

Board, supra. The context of that case was conscientious objection in terms of section 4. Two

midwives working as labour ward coordinators who were Roman Catholics had objected to

participating in treatment for the termination of pregnancy. The only interest in the case for

the purposes of this petition was said to be the overall approach to interpretation. Lady

Hale (at paragraph 33) had described the argument as a “pure question of statutory

construction”. The present case, while on a very different issue, could also be described that

way. It was clear from the way in which Lady Hale identified the question in Doogan as

being restricted to the meaning of particular words in section 4 that a consciously precise

and possibly technical reading of the statute was required. The present petition did not

engage the correctness or otherwise of a broader approach to interpretation.

[12] Ms Ross made five propositions in support of her first plea-in-law which challenged

that a pregnant woman’s home can be somewhere lawfully approved as a class of place. A

sixth proposition concerns the second ground reflected in the second plea-in-law in relation

to the requirement for a medical practitioner to be in charge or in control of all treatment.

The first proposition was that there must be some restriction in form and in substance on

location. A power to prescribe a class of place where an activity may happen necessarily

implies a class which does not include all places. While the legislation as currently framed

permits the Scottish Ministers to add places to those listed in section 1(3) there was no power

to permit abortion to be carried out in any place whatsoever. If the power can only be

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exercised in a manner that leaves some, but not all, places included, it follows that the line

must be drawn in a manner that places some substantive restriction on where the activity

might take place. Accordingly, approving all places in Scotland other than those that are

uninhabitable would not be a lawful use of the power. Any exception must not “swallow

the rule” and so an exception cannot be so broad as to cause the restriction to be little more

than theoretical. Secondly, the restriction must be based on relative safety of the approved

places. In this context there must be a meaningful link between the purpose of the Act in

permitting abortions only in safe and hygienic conditions and the basis of identifying a class

of place. The restriction must make that link. Approval of all premises with odd street

numbers for example would significantly restrict where abortions could take place but

would be entirely unconnected with the aim of the legislation. The bestowing of a power to

approve a class of place presupposes that it is safer for abortions to take place in some places

rather than others. Accordingly places within the approved class must be safer than places

outwith the class. Thirdly, the restriction must be based on features that all places in the

class share. As the power to approve a class is additional to the power to approve places on

an individual basis, the legislation implies that there is something about those places which,

as a generality, makes them more suitable than other places for abortion to take place. If

each location had to be considered individually, class approval would be inappropriate. The

home of the woman who wants to take misoprostol could not be regarded as more suitable

than a clinic or hospital. Fourthly, the restriction must be based on the features of the place

and not the user. Subsection (3A) allows approval of a class of place to be conditional upon

medication of a particular kind being used in a particular manner but expresses no other

conditions. Applying the maxim expressio unius est exclusio alterius there was no basis for

implying a power to impose any other conditions than those stated. The restriction on

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places was intended to further safety and so a place had to be approved solely by reference

to its features. A place does not become inherently safer or less safe depending on the

connection of the person receiving treatment with that place. Fifthly, a pregnant woman’s

home is not a permissible class. This followed from one or more of the first four

propositions. An approval of all homes would not be a lawful class in terms of

subsection (3A) as it would be so broad as to be meaningless. The introduction of the

qualification that the place must be the ordinary residence of the woman receiving treatment

did not alter that. There was no power to make approval conditional upon the relationship

of the pregnant woman with the place of treatment. A test of ordinary residence at a certain

place made no difference to the safety of that place. There was nothing inherent to the home

of the pregnant woman who is to undergo abortion treatment that made it safer in relative

terms than any other person’s home. Absent any condition in the approval that there must

be no cause for concern about the woman’s wellbeing at her ordinary residence her home

could not necessarily be taken as a safe place and so was not a permissible class for

approval. To the extent that the guidelines sought to address some of the deficiencies in the

approval (something the petitioner does not accept it achieves) there is nothing in the

guidance about the GP ensuring that his or her advice is complied with or taken on board.

This highlighted the problem of delegation to the medical profession.

[13] In relation to the second of the two arguments, counsel submitted that self-

administration following a medical practitioner’s advice, where the patient is able to call

upon that practitioner, does not constitute treatment by a medical practitioner. It was clear

from the British Pregnancy Advisory Service case that treatment includes the taking of, or

administration of, misoprostol. The fact that a registered medical practitioner might remain

responsible for the patient’s treatment was not a statutory requirement in terms of the

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1967 Act. What was required was for a medical practitioner to be in charge of all treatment

and an ability to call on or consult a doctor from a distance was not sufficient for that.

Sending a woman home with specific instructions on how to take misoprostol was a virtual,

distant type of control and one not envisaged by the legislation. The approval under

challenge differs from the approval given in the circular in the Royal College of Nursing case

in three respects. First, the treatment to be administered by the nurses in that case was on

the instructions or orders of a doctor whereas the current approval contemplates advice only

from the doctor and so no control by him or her. Secondly, the pregnant woman is neither a

member of clinical staff nor an employee of any clinic and so the treatment relationship of

doctor and patient was very different from the doctor and nurse relationship being

discussed by the House of Lords. There is no system implicit in the respondents’ approval

to monitor what happens when the woman is at home. Accordingly, the requirement for the

hierarchical system of workers under the control of a doctor breaks down on the change of

environment provided for in the approval. While of course the modern understanding of

“participation” differs from the traditional doctor-patient relationship, that was irrelevant as

it could never be said that the patient was somehow part of the team. She remained

someone being treated as distinct from those providing the treatment. Thirdly, the

respondent was likely to contend that the medical practitioner would remain responsible

during the taking of misoprostol and would be available to be called upon at all stages of the

treatment. While others, qualified or not, can be called upon to carry out parts of the

treatment as defined in the legislation, the woman herself cannot fall within the definition of

someone to whom the doctor delegates. While treatment may have a wide meaning and

while the petitioner did not suggest that physical presence of a doctor at all stages was

required, it stretched the language of the legislation too far to suggest that a doctor was in

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charge or control simply by his providing a telephone number to the pregnant woman. This

could be illustrated by considering the 24 hour window within which misoprostol can be

taken. On the basis that it is accepted that taking the pill is treatment and the patient self-

administers in the middle of the night, that amounts to the administration of it. Absent an

emergency situation, what does it mean to say that she can call on her treating medical

practitioner? It is likely that she would wait until the morning, unlike a situation where she

is present in a clinic or at hospital when the drug is administered.

[14] In summary, the logical consequence of the proposed approval is that the word

“place” encompasses anywhere at all. In any event, treatment by a registered medical

practitioner as required by the primary legislation loses any meaning if a telephone call from

home is good enough to fall within that definition. If either of these two arguments were

accepted an order for reduction of the approval should be granted.

Submissions for the respondents

[15] Ms Dunlop QC pointed out at the outset that the petition was directed only to the

second part of a process of treatment for termination of pregnancy. The treatment under

discussion had to be distinguished from the medical induction process being discussed in

the Royal College of Nursing case. The petitioner contends that the second part of the two

stage process cannot be effected by a woman in her own home, something that, by granting

the approval, the respondents clearly do not accept. The respondents’ position is that the

approval is intra vires and so the order sought by the petitioner should be refused.

[16] Senior Counsel for the respondents emphasised the scheme of the legislation and the

limited circumstances in which termination of pregnancy will not be a criminal offence. So

far as sections 1(3) and 2 of the 1968 Act are concerned, the Secretary of State’s functions

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thereunder were transferred, so far as exercisable in or as regards Scotland, to the Scottish

Ministers by virtue of the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers

etc) Order 1999. Further, abortion law generally now falls within the devolved powers of

the Scottish Parliament and Scottish Government as a result of the Scotland Act 2016. The

arguments in the present case were concerned only with the Scottish Ministers’ power to

approve a class of place in terms of section 1(3A). Ms Dunlop confirmed that there is no real

factual dispute between the parties the resolution of which is required for disposal of the

petition. The use of mifepristone, a progesterone blocking drug, followed 24 – 48 hours later

by the administration of misoprostol, a prostaglandin, to initiate expulsion of the pregnancy

has been a recognised method of termination for some years. This was clear from the House

of Commons’ Science and Technology Committee report, referred to by senior counsel for

the petitioner. It was noteworthy that, at paragraph 113 of that report there is a reference to

the need for Regulations, indicating that there was never thought to be a need for primary

legislation to be enacted on this issue.

[17] On the first ground of review relating to “place”, a distinction had to be drawn

between the limited ability to approve specific places in terms of section 1(3) and the terms

of section 1(3A), introduced by the Human Fertilisation and Embryology Act 1990, when

pharmaceutical abortion was contemplated and so required an amendment to the Act. In

1967 abortion had been decriminalised in certain circumstances and brought into the public

sector to address the problem of the risk to women of the previously covert activity required

to terminate pregnancy. A recent judicial pronouncement in relation to the introduction of a

policy to address the mischief of “back-street” abortion can be found in a passage by Lady

Hale in the case of Doogan v Greater Glasgow Health Board, (supra) at paragraph 27. It was

acceptable to look at contemporaneous material in this context. Counsel referred to the

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report of Standing Committee F on the Medical Termination of Pregnancy Bill as it then was

(No 7/3 of process). The discussion there illustrated that the original plan had been to

restrict the places at which termination of pregnancy could be carried out to hospitals or

registered nursing homes. The possibility of carrying out terminations at a nursing home

was then removed. A discussion about that referred to a “suitable place for the carrying out

of these operations”. Accordingly, the concern in 1967 around place seemed to be

suitability. While safety might be part of suitability, suitability could not be said to be

restricted to safety. The approval of places had, as part of its rationale, the need to regulate

the private sector. In contrast, the 1990 amendment was not designed to remedy any

mischief. It related to the imminent arrival of pharmaceutical abortions. The discussion was

in relation to the drug RU486, now known as mifepristone. There was a desire to approve a

process of termination using tablets. In the British Pregnancy Advisory Service case (supra) it

was argued that “treatment” in the Act did not involve the taking of the tablets but the

respondents accept that the claimant’s argument in that case was wrong. The purpose of the

1990 amendment was to set up a system to cope with medical abortion by administration of

tablets including the conferring of an ability to approve a class of place as distinct from

specific places.

[18] The respondents’ position was that, prima facie, a category of “the homes of women

undergoing abortion” was capable of being included as a class of place. There had been a

recognition by Supperstone J in the British Pregnancy Advisory Service case (at paragraph 32)

that a wider range of place “including potentially the home” might be envisaged. While that

was not sufficient to resolve matters in this court, it was noteworthy that it did not appear to

strike Supperstone J as outwith the lawfulness of the provision that the home might be a

permissible class of place. The subsection under discussion was general in its expression

Page 19 ⇓

and a straightforward interpretation did not, in Ms Dunlop’s submission, restrict the class of

place that might be approved.

[19] The issue of safety was one that was woven through the petitioner’s submissions and

there appeared to be a hint in those that approval of a woman’s home was somehow not

safe. If the condition was better expressed as “suitability” with safety being a part of that, it

could not be said that a woman’s home was somehow less safe for the taking of a tablet.

One could also take into account other factors in relation to the suitability of place such as

where someone is when the tablet takes effect. Privacy and comfort had to be relevant in

this context. When those were taken into account it could not be said that a woman’s home

would be necessarily less suitable for administration of the second part of the treatment than

some other place.

[20] The petitioner’s propositions on place were answered in detail. On the first

proposition, namely that there must be some places where the activity cannot take place, it

was important to note that the legislation did not restrict the activity of termination of

pregnancy to certain places. Accordingly there was no restriction of location for its own

sake. The whole context was not one of a legitimate activity restricted by parliament (such

as the sale of noxious substances) as abortion was almost entirely unlawful prior to the

passing of the 1967 Act. The focus of a restriction on place was initially to bring operations

in from the underground to places where it could permissibly be performed. These

included hospitals and clinics but as science progressed and the ability to approve a “class of

place” was introduced parliament conferred an unfettered power to designate a class of

place. There was no restriction using words such as “or any other similar place” to suggest

that any features of a hospital or clinic were required. The normal strictures of

administrative law must apply to the approval. This meant that the class of place so

Page 20 ⇓

approved must be both reasonable and rational but there was nothing to support a

contention that the provision to grant approval was itself restrictive. Further, the

incremental extensions granted first by the legislation and now by the respondents followed

the developments of science and the changes in medical procedure. It could not be said that

in the long term place would be restricted at all.

[21] On the petitioner’s second proposition that restriction must be based on the relative

safety of the approved places, Ms Dunlop submitted that safety cannot be viewed in a

vacuum. The context matters and so the question was whether the place approved was safe

for what is to be done there. That was something that could and would evolve with science.

It did not follow that in a comparison between an approved clinic and a woman’s home the

latter will be less suitable when all factors were taken into account including the wellbeing

of the woman, her privacy and the avoidance of commercial exploitation. On the third

proposition that the restriction must be based on features that all places of the class share, it

was again important to recognise that the approval was not dealing with abortions en bloc. It

was dealing only with the pharmaceutical method and so the approval resulted in a woman

being able to be in her own home if she wished to take the second part of the pharmaceutical

treatment there. It was not accepted by the respondents that there had to be a restriction

based on any particular features of the class of place. In any event, the petitioner’s fourth

proposition that the features required to be based on the place and not the user ignored the

threshold for the exercise of the power in section 1(3A). As it comes into play only in non-

surgical abortions, there was no difficulty describing the place under reference to its link

with the person. It was perfectly understandable that a woman undertaking a personal and

intimate procedure would wish to do so in her own home. The tool of identification of

“ordinarily resident” is one with which the law is familiar. The petitioner had not explained

Page 21 ⇓

what the boundaries of acceptable breadth would be. As the designation of a class is

allowed by the legislation the only real question was whether the class was sufficiently

identified bearing in mind there was no question of the creation of a right of women to have

treatment at home or to insist on treatment at all. Abortion is still only lawful under certain

conditions and those require to be met before any treatment may be carried out.

Accordingly, it is inherent in the approval of a class of place that there will require to be

individual clinical decisions on whether that place should be used. A number of

considerations will come in to play in the doctor’s decision about whether treatment will in

fact take place at home. All that administrative law requires is identification of a class; what

happens after that is an individual exercise on whether a particular course of action should

be followed.

[22] The respondents disputed the central contention that a pregnant woman’s home is

not a permissible class. Ms Dunlop submitted that there was nothing inimical to approval of

a class of place while at the same time acknowledging that an individual’s circumstances

would be relevant in deciding whether to use that place. Accordingly, while all places in the

class had to be suitable it was sufficient that the restriction was to a woman’s home where

she wanted to have the treatment there. Accordingly, the petitioner’s third and fourth

propositions did not explain why the approval was somehow outwith the scope of

section 1(3A).

[23] Turning to the case of the Royal College of Nursing of the United Kingdom v Department

of Health and Social Security (supra) on which the petitioner had placed such reliance,

Ms Dunlop submitted that Lord Diplock’s comments (at page 827) about “all proper skill

and in hygienic conditions” should not be treated as if they were a legislative provision. His

Lordship was not prescribing criteria to be followed. In any event, if judicial commentaries

Page 22 ⇓

were being taken into account, the more recent statements by Lady Hale in Doogan v Greater

Glasgow and Clyde Health Board (supra) should be preferred. On the issue of the

parliamentary materials, including in the debates in 1967, these were available as a

contextual aid. It can be seen that the debates at the time support the later comments by

Lady Hale on the mischief the legislation sought to address by the introduction of a policy.

That contextual material reveals where “place” sits in the scheme introduced. When the

legislation was passed in 1967, there was no free standing restriction placed on where any

part of an abortion could take place nor did the legislation make any statement about

hygiene. The restriction was part of the control of activities to bring about the termination of

pregnancy by non-NHS providers. That is supported both by the contemporaneous

materials and by paragraph 3 of the decision of Supperstone J in the BPAS case. The

positioning of section 1(3A) within section 1(3) fitted with a development for new forms of

termination being available. The approval under challenge and the thinking behind section

1(3) were accordingly compatible in that section 1(3) was always wider in terms of

approving places than concepts of cleanliness and hygiene. Section 1(3) was about both

place and provider. Any approval of a place or a class of place would take note of a

woman’s safety (as opposed to a place’s safety) which is a relevant factor in deciding what

place or class of place to approve. However, the word “place” could not be elevated into a

whole set of criteria for approval. All that is required is that the approval is consistent with

the policy of the act and is rational in its choice of place/class of place. For these reasons the

approval was not problematic in its choice of a woman’s home as a class of place. There

were attractions of privacy and comfort in selecting a woman’s home as a place. It was

somewhere that she could stay while the drug takes effect. Accordingly the requirement of

suitability from the perspective of the woman was met.

Page 23 ⇓

[24] On the second challenge in relation to treatment, it was accepted that the exoneration

in the 1967 Act applies only when termination is by a “registered medical practitioner”. In

Doogan v Greater Glasgow Health Board (supra) Lady Hale made the point (at paragraph 29)

that in pharmaceutical abortion the event is the administration of drugs and that such an

event was not simultaneous with “delivery”. For the purpose of section 4 which was under

discussion in that case treatment covers the period from the administration of the drugs

until the expulsion of the pregnancy. It is because treatment is interpreted widely that there

is a corresponding entitlement on the part of staff to refuse to participate at certain stages. It

follows that a doctor does not require to be present throughout, something that the

petitioner had accepted. It was noteworthy that the petitioner’s case related only to the

moment of the self-administration of the drug.

[25] While it was accepted that the Royal College of Nursing case was the principal

authority on the words “treatment by a registered medical practitioner” in the Act, it had to

be borne in mind that the dicta in that case was pronounced at a time when the procedure

for termination of pregnancy was infusion of prostaglandin. While that does not diminish

the authority of the case, the medical context was slightly different. In any event,

Ms Dunlop submitted that the decision was not at odds with the approval under challenge

in this case. The main elements of the passage from Lord Diplock relied upon (at page 828)

were first that Parliament contemplated a team effort in relation to the treatment. While that

was accepted, it would be odd, particularly given recent ideas of a partnership between the

doctor and the patient to conclude that the woman is somehow excluded from the team.

Obvious difficulties would arise if staff had to administer a tablet in every case. Secondly,

the case provided authority that a doctor should accept responsibility for all stages of the

treatment for termination of pregnancy. However, it was accepted that he or she need not

Page 24 ⇓

be present throughout, then all that was required was that a doctor or his substitute should

be able to be called on for assistance. If the woman was in a hospital, a clinic or a GP

surgery and took the tablet that would be treatment and could not be presumed that the

doctor would be the one immediately called upon to assist. In so far as the petitioner

seemed to suggest that the doctor should be in the premises where the second stage of a

pharmaceutical termination was being carried out, the RCN case was not authority for that.

So long as the doctor could be called upon for assistance, that could be on the end of a

phone. In any event there was no sharp dividing line. In many cases a doctor might be in

the same building as a woman was having a termination but only available by phone. It was

the issue of control that mattered. Further, in the guidelines issued by the respondents

which do not form part of the approval but are of assistance to medical practitioners, there

are listed certain contra-indications for prescribing misoprostol to be taken at home. For

example if the woman had had a previous allergic reaction to misoprostol and that was

known to the doctor the decision not to prescribe it again had to be categorised as treatment

by that doctor. Finally, the statements by Lord Keith and Lord Roskill in relation to

treatment could all be appropriately related to pharmaceutical abortion. Treatment has a

wide reach but that width could not be used to frustrate the adoption of less invasive

methods of termination.

[26] Reference was also made to the first instance decision of Woolf J in the Royal College

of Nursing case (supra) at page 553, where Woolf J anticipated that termination of pregnancy

by a patient taking a pill might come about. He made clear that the doctor would still be

regarded as treating the patient even if someone handed the pill to her. Translating that to

the current approval, where in all cases the first part of the treatment will still be at the

clinic, it remains the case that the patient is being treated by a medical practitioner even

Page 25 ⇓

where she takes the second dosage required at home. It would be surprising if the woman

could not in that circumstance be regarded as a member of the “team”. Of course she could

decide not to take the second stage of treatment but she might also refuse to do so in a

hospital. While the motivation of a nurse might be different from the motivation of a

woman who takes the pill herself, this did not take the situation out of the realm of

treatment by a doctor. In the British Pregnancy Advisory case (supra), Supperstone J had

looked at the Oxford English Dictionary definition of treatment in the medical context as

being “management in the application of remedies; medical or surgical application or

service”.

[27] Finally, Ms Dunlop returned to the issue of safety. It was noteworthy that neither

party in these proceedings had set forth any averments as to the safety or otherwise of

medical abortions completed at home. Whether something was safe clearly involved

matters of fact. There was material available which, if safety is an issue, that matter could be

determined following examination of the pertinent facts at a second hearing. However,

Ms Ross confirmed in response that she considered there was no need for any factual

enquiry. She was content to rest on an acceptance by the respondents that there could be

some women’s homes that would be unsuitable for treatment which had been accepted.

Accordingly there was no need for evidence about general safety.

Discussion

[28] It may be useful to start with the chronology of events leading to the approval under

challenge. When the Abortion Act 1967 was passed nearly all abortions were performed by

surgical methods. As Ms Dunlop set out in her submissions, the mischief that the Act was

designed to remedy was the danger to which women who undertook illegal abortions prior

Page 26 ⇓

to the coming into force of the legislation were exposed. In the 1970s medical induction was

introduced as a method of termination of pregnancy. This involved infusion of

prostaglandin into the womb such that the foetus is then expelled. The use of medical

induction to terminate pregnancy was the type under discussion in the case of Royal College

of Nursing v Department of Health and Social Security [1981] AC 800. The context of the

decision in that case was that there were two distinct stages in the process of termination of

pregnancy by medical induction. The first stage was carried out physically by a doctor who

administered a general anaesthetic to a woman. The second stage was carried out by nurses

who administered the prostaglandin fluid. All of the pertinent passages in that case require

to be understood against that background, an issue to which I will return. The next

development, chronologically, was the introduction of a method of terminating early

pregnancy by a combination of drugs rather than surgery or medical induction. This

process became known as “early medical abortion” (EMA) and might also be termed

“pharmaceutical termination of pregnancy”. The drug mifepristone was licensed for use in

Great Britain in 1991, more or less simultaneously with the coming into force on 1 August

1991 of the Human Fertilisation and Embryology Act 1990 which amended the Abortion Act

1967 by the insertion of section 1(3A) to permit the approval of a class of place for medical

termination. From that time, pregnant women seeking an early termination or EMA have

attended a clinic or similar place where medicines have been administered to achieve that

result. These proceedings have arisen, as already indicated, because of a development on

26 October 2017 when the Chief Medical Officer for Scotland intimated to doctors in this

jurisdiction that the respondents had granted approval for the second stage of early medical

abortion treatment to be undertaken in a patient’s home. That practice is referred to as early

Page 27 ⇓

medical abortion at home (EMAH) and is intended to be used only during the first 9 weeks

of pregnancy.

[29] The power of the Executive to approve a place for the termination of pregnancy in

terms of section 1(3) has been in place since the enactment of the original legislation in 1967,

the various amendments to the wording of that sub-section having no bearing on the issue

for discussion in this case. The respondents, the Scottish Ministers, are the Executive for the

purpose of section 1(3) and (3A) and have been since the coming into force of the Scotland

Act 1998. For the avoidance of doubt, while the Scotland Act 2016, section 53, removes

abortion from the list of specific matters reserved to the Westminster Parliament, this case is

not concerned with that transfer of primary legislative power on the subject of abortion to

the Scottish Parliament. The decision under challenge is an administrative act of the Scottish

Ministers in terms of section 1(3A) of the 1967 Act, namely the exercise of a power conferred

upon them to “approve a class of places” for the termination of pregnancy where the

treatment of that consists primarily in the use of medicines. I proceed on the basis that no

issue is taken with the administration of mifepristone followed up to 24 hours later by

misoprostol as a safe method to terminate pregnancy. The challenge is only to the alteration

of the classes of place in which a treatment can be carried out so that it includes a woman’s

home and not to any claim that the method itself is unsafe. That is inevitably so, as

pharmaceutical abortion has been taking place in terms of the legislation for many years.

While the current petition is restricted only to the decision to approve a woman’s home as a

class of place for the purpose of medical termination, the issues of social policy that

termination of pregnancy involves continue to be both complex and controversial. This

opinion cannot be regarded as contributing in any sense to that social policy discussion.

Page 28 ⇓

[30] Turning then to the approval itself, reproduced at paragraph [3] of this opinion,

paragraph 4 thereof makes clear that the only circumstances in which a woman’s home is

approved as a class of place are where she has already attended a clinic where she has been

prescribed mifepristone, that she has taken that mifepristone at the clinic and wants to carry

out the stage of taking misoprostol at home. The effect of paragraphs 3 and 4 of the

approval read together is, in my view, that a woman’s home is approved as a class of place

only where the following conditions are met; first that she is ordinarily resident at the home

in question, secondly that she wants to carry out the stage of the treatment that involves the

taking of misoprostol at that ordinary residence, thirdly that she does so having been

prescribed both mifepristone and misoprostol at a clinic and fourthly that she has taken the

mifepristone at that clinic. The petitioner makes a number of arguments in support of a

conclusion that a pregnant woman’s home is not a permissible class and so cannot be

lawfully approved in terms of section 1(3A) of the 1967 Act.

[31] The theme running through the petitioner’s various propositions is that the home

where a woman is ordinarily resident and where she wants to take the second part of the

treatment is too broad and unrestricted to be properly approved as a class of place. The first

form of restriction said to be essential is as to location. It is contended that as all homes are

potentially a class of place this is not a proper restriction at all. This first point is in my view

misconceived. There can be no doubt that there must be a rational basis for the class of place

being approved and that approval of “all places in Scotland” might be challengeable as

devoid of a rational basis. However, the restriction on location in the approval under

challenge is one of substance. That it is a very real restriction is easily illustrated by

considering the case of a woman who may wish to go to the home of a relative who is

providing her with emotional support in order to take the misoprostol that is required for

Page 29 ⇓

the second part of the treatment. She would not be permitted to do so by the terms of the

approval as it currently stands. That may be regarded by some as unduly restrictive in

terms of location but that is what the approval states. It is easy to understand the basis for

this significant restriction. The pregnant woman is being treated by a medical practitioner

who will require details of, amongst other things, her ordinary residence. If the medical

practitioner is to have ongoing responsibility for the woman’s treatment while she is at

home, as he or she must, there is at least a rational basis for identifying the place of ordinary

residence as a clearly defined restriction. Whether there are other restrictions, broader or

narrower, that would have been more appropriate, or equally appropriate, does not matter

for the purposes of this first question. It seems to me that there is little doubt that the

restriction of the class of place to a woman’s ordinary residence (in circumstances where she

wants to take the misoprostol there) represents a real and substantive restriction on location.

[32] The other main challenge to the breadth of the class of place identified in the

approval is that the identity of a class of place must, it is said, be based on the relative safety

of the class approved. The example given was that of the approval of all premises with odd

street numbers which would by definition significantly restrict where abortions could take

place but would be unconnected with the aims of section 1 of the 1967 Act. It seems to me

that restricting a class of place to homes with odd numbers would be so irrational that it

could be challenged on that basis alone. The more important issue is what relationship is

required as between the aims of the legislation and the approval of a class of place. This

involved considerable discussion at the hearing in relation to the issue of safety. The

petitioner’s contention is essentially that an approval purporting to introduce an alternative

venue to a clinic or hospital for the termination of pregnancy can only be lawful if all places

in the class meet the requirements of safety and hygiene. The objection is to the respondents

Page 30 ⇓

delegating to or relying on the judgement of doctors in relation to whether a specific place is

suitable. Unless it could be said that all women’s homes are safe they do not all share the

necessary features. The respondents on the other hand characterise the requirement as

suitability rather than safety, with safety being effectively a subset of that overall

requirement. I am of the view that it is important to distinguish in this part of the discussion

between a class of place that is capable of being suitable for the limited purpose stated in the

approval from a requirement that, as a matter of fact every place in the category is safe in a

general sense. That distinction is the logical consequence of extending the requirement to

approve specified places to specifying the class or type of place at which the second stage of

certain medical terminations can be performed. Of course any class of place selected

requires to be one that is suitable for the performance of the act in question. The issue is

whether the fact that there could be homes that are not suitable is a sufficient basis to render

unlawful the approval under challenge.

[33] There are good reasons for considering that a woman’s home, in circumstances

where she wants that to be the place for the second stage of the pharmaceutical termination

of her pregnancy, will be prima facie suitable for that purpose. Approving a category of

places as suitable for the second stage of an EMA does not and cannot override clinical

decisions as to whether a woman will in fact take misoprostol at home. That is because the

approval itself does not determine that the second stage of an EMA will take place at home,

it simply makes that possible on certain conditions as outlined earlier [para 30]. That a

pregnant woman with full capacity will know whether or not her home is a place in which

she will feel comfortable and secure self-administering misoprostol can be readily inferred.

It follows that fulfilment of the second requirement, that she must want to take the

misoprostol there, will normally coincide with her ordinary residence being a suitable place

Page 31 ⇓

in which to do so. The petitioner’s arguments tended, in my view, to ignore or at least

underplay that the woman’s wish to take the misoprostol at home is an important restriction

contained within the approval. Where the medical practitioner, in discussion with the

pregnant woman, raises a concern about the suitability of the woman taking misoprostol at

home, perhaps due to contra-indicators known from her medical history, one can anticipate

that the result may be that the doctor will not prescribe the misoprostol to be taken at home.

That may raise an issue or disagreement between doctor and patient but it does not impact

on the legitimacy of approving the woman’s home as a class of place. In my opinion,

properly understood, the approval does not delegate to the medical profession the decision

on suitability of the home as a class of place. While I accept that some sort of nexus between

the purpose of the treatment enabled by the primary legislation and the basis of identifying

a class of place is required, it is not necessary that the respondents be satisfied that every

woman’s home (where she wishes to take medication there) is safe and hygienic in the way

that a hospital or clinic is expected to be. The class of place need only be suitable for the

specific purpose permitted. Many patients self-administer medication for relatively serious

conditions at home without the need for any assessment of the levels of hygiene in their

property. Of course the difference is that, unlike the self-administration of powerful

controlled drugs, where the legislature does not restrict the location in which they can be

taken, for termination of pregnancy the primary legislation does continue to require

identification of where that will be carried out. However, there is nothing in the legislation

that restricts the classes of place that can be approved to those in a similar category to

hospitals or clinics. The power to approve a class of place is given without limitation as to

specific features, subject always to the respondents requiring to meet the administrative law

tenets of reasonableness and rationality.

Page 32 ⇓

[34] Counsel at the hearing before me agreed that the issue for determination was one of

statutory construction. It is often necessary to interpret or construe an Act of Parliament in

the light of developing medical knowledge or practice. The case of Royal College of Nursing v

Department of Health and Social Security (supra) provides a good example of that. It seems to

me that construction of the expression “class of place” in section 1(3A) must be carried out

against the chronological background, which includes the development of pharmaceutical

termination of pregnancy. The petitioner in this case challenges the lawfulness of the

approval only in relation to the stage of self-administration of the drug misoprostol and not

the period thereafter when it is accepted the woman might be at home. Accordingly, in

order to challenge the woman’s home as a class of place that can be approved by the

respondents, it would be necessary to explain or offer to prove why an outpatient clinic or

GP’s premises would necessarily be a safer place to take a tablet or pessary as the second

stage of a pregnancy termination treatment than the woman’s home, bearing in mind that,

absent the approval, a woman would still be able to leave the clinic immediately after the

misoprostol was administered. This is not something that has been done in this case.

[35] In relation to the respondents’ reliance in submissions on the decision of Supperstone

J in British Pregnancy Advisory Service v Secretary of State for Health [2012] 1WLR 580, that was

a case involving a challenge to whether the administration of abortifacients where the

second stage was taken at home constituted “treatment” under the legislation. Accordingly,

although the case involved similar subject matter to the present case in that BPAS wanted

the court to approve early medical abortion at home, it sought to do so in a vacuum and

without any approval as to class of place having been granted by the Secretary of State. The

ratio of the decision is that the use or administration of abortifacient drugs such as

mifepristone and misoprostol constitutes treatment in terms of the legislation. The court

Page 33 ⇓

could not grant the declaration sought by the claimant in the absence of such approval.

There is nothing in that decision which assists the question of whether the approval under

challenge in this case is lawful or not. The remark by Supperstone J (at paragraph 32) that

the home was “potentially” a place where medical termination could take place impliedly

acknowledges that any proposed approval could be subject to a challenge. There was no

argument about what the Executive could or could not identify as a class of place in that

case.

[36] During the course of argument Ms Ross referred to “Guidelines” issued by the

Scottish Abortion Care Providers (SACP) Network which were sent to medical practitioners

with the approval under challenge. At their highest, these guidelines provide advice on the

matters that practitioners should take into account if utilising the approval so that a patient

is prescribed misoprostol to be taken at home as part of the treatment process. They are not

part of the approval and so they are not part of the decision under challenge. Ms Dunlop did

not suggest that the letter, approval and guidance should be read together; she sought only

to defend the lawfulness of the approval itself. Accordingly, while the guidance suggests

that the second stage of treatment should not take place at home if there is no adult (other

than the pregnant woman) available there, that is in no sense a condition attaching to the

approval. Thus the absence of another adult at home has no bearing on the permissibility or

otherwise of the home as a “class of place” for the purpose of section 1(3A). What the

Guidelines do set out are examples of the factors that may affect the clinical decision making

process in relation to a particular patient. There are list of “absolute contra-indications” (e.g.

uncontrolled severe asthma) and also a note of circumstances in which caution is required

(e.g. severe anaemia) before any decision on this form of treatment is undertaken. That is

useful to the extent that it illustrates the nature of the decision that is within the province of

Page 34 ⇓

clinical decision making, namely whether receiving part of the treatment at home is

appropriate on health grounds for a particular patient. There is no delegation of the safety

and so suitability of the class of place (the home) to the medical practitioner as that has

already been determined by the approval. If the patient informed her doctor that there was

to be no adult at home during the time she would be taking the misoprostol, it would be for

the medical practitioner to decide whether or not the guidance could be departed from in

that respect, but any consequences of not doing so would have no impact on the approval. It

does seem to me to be unsatisfactory that the guidance as currently framed appears to

convey to doctors that there is something tantamount to a requirement that there be an adult

at home with the woman when that is not in any sense a condition of the approval, although

as the terms of the guidance are not part of the decision challenged its terms have ultimately

had no impact on my decision in this case.

[37] For all of the reasons given I reject the proposition that a woman’s home where she

wishes to take the second stage of an EMA cannot be a permissible “class of place” in terms

of section 1(3A) of the 1967 Act.

[38] I turn to the second main challenge made by the petitioner, namely that the

requirement in the primary legislation that treatment be carried out by a registered medical

practitioner cannot be satisfied if the second stage of an EMA is self-administered at home

and that this renders the approval unlawful. In Royal College of Nursing v Department of

Health and Social Security (supra), the House of Lords adopted a purposive interpretation of

the word “treatment” in this context. The conclusion of the majority was to reject a literal

interpretation that would require all acts inducing termination of pregnancy to be

performed by the doctor himself. As Lord Diplock put it, the treatment (in a hospital)

would be undertaken as a “team effort” and delegating to those such as nurses to assist with

Page 35 ⇓

part of the treatment did not offend the requirement of section 1(1). The central part of

Lord Diplock’s reasoning is contained in the following passage:

“What limitation on this exoneration is imposed by the qualifying phrase: “when a

pregnancy is terminated by a registered medical practitioner”? In my opinion in the

context of the Act, what it requires is that a registered medical practitioner, whom I

will refer to as a doctor, should accept responsibility for all stages of the treatment for

the termination of the pregnancy. The particular method to be used should be

decided by the doctor in charge of the treatment for termination of the pregnancy, he

should carry out any physical acts, forming part of the treatment, that in accordance

with accepted medical practice are done only by qualified medical practitioners, and

should give specific instructions as to the carrying out of such parts of the treatment

as in accordance with accepted medical practice are carried out by nurses or other

members of the hospital staff without medical qualifications. To each of them, the

doctor, or his substitute, should be available to be consulted or called on for

assistance from beginning to end of the treatment. In other words, the doctor need

not do everything with his own hands; the requirements of the subsection are

satisfied when the treatment for termination of a pregnancy is one prescribed by a

registered medical practitioner carried out in accordance with his directions and of

which a registered medical practitioner remains in charge throughout.”

[39] I have recorded the various arguments for and against that dictum being more or less

determinative of the issue in these proceedings. The Royal College of Nursing case has been

cited with approval in subsequent decisions, including by the UK Supreme Court in Doogan

v Greater Glasgow Health Board [2015] SC (UKSC) 32. There, Lady Hale (at paragraph 9),

having cited the passage from the Court of Appeal stage where Denning MR had referred to

the argument as being about whether a doctor could initiate the process and then go and do

other things so long as he was “on call”, referred to the decision of the House of Lords that

the treatment was a team effort with doctors, nurses and others participating. What is

important, from all of that, in my view, is that the authorities support that the whole process

designed to bring about termination of pregnancy constitutes “treatment” for the purpose of

section 1. That is why the case brought by the British Pregnancy Advisory Service (supra) was

doomed to fail. Prescribing and administering drugs with the intention of terminating a

pregnancy is included within the ambit of treatment. Where those drugs are administered

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at a hospital or clinic, whether by a nurse or some other person assisting the doctor, the

petitioner accepts that the requirements of section 1, as set out by the House of Lords, are

met. Where, however, the woman is sent home to self-administer the second stage drug

questions arise as to whether the medical practitioner still has responsibility for all stages of

the treatment and whether the pregnant woman can somehow be regarded as part of the

“team” referred to by Lord Diplock. The petitioner contends that the woman would not

then be under the control of the practitioner in the way envisaged by the House of Lords.

[40] As a generality, it seems to me that patients who self-administer medication at home

may still be described as being treated by their medical practitioner who remains in charge

of that treatment. To take but one example, insulin dependent diabetics may require to

self-administer the insulin prescribed to them regularly at home, but they do so under the

direction of their doctor and would ordinarily be described as receiving treatment from that

doctor regardless of a lack of physical presence by the practitioner in the same building or

even in the locality. Again, however, termination of pregnancy is not general treatment and

has been separated out for very specific legislative control. It is clear from the Royal College

of Nursing case that was it was acknowledged that the nurse would carry out the action

leading directly to termination of the pregnancy by inserting the device and infusing the

prostaglandin. Even under a hospital procedure, then, the action that precipitates the

expulsion of the foetus need not be performed personally by a medical practitioner.

Similarly, with pharmaceutical termination, regardless of place, there is no need for a doctor

to hand the medication to the woman personally. The doctor’s role is to assess the

suitability of the woman for treatment, to ensure that the other conditions of section 1(1) are

met, to consider any clinical contra-indications for the particular woman and then, if

appropriate, to prescribe mifepristone and misoprostol. Where the woman is handed both

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the mifepristone and the misoprostol for self-administration at the clinic, no issue arises

because the petitioner would accept that the doctor continues to be in charge or in control of

the treatment. The situation that has arisen in this present case was anticipated to some

extent by Woolf J (as he then was) at the first instance stage of Royal College of Nursing v

DHSS [1981] 1 All ER 545. There the reconciliation between section 1 of the 1967 Act and

taking of medication to terminate pregnancy was specifically addressed in the following

way:

“No doubt the time is not far ahead when a pregnancy can be terminated merely by

the patient taking a pill. If in such circumstances the doctor, having examined the

patient, decides that it is a case where in accordance with s1 the pregnancy should be

terminated, and he complies with the other conditions of s1, then the fact that the pill

may be handed to the patient by a nurse rather than the doctor so that the patient can

take the pill will not mean that the treatment is not that of the doctor. If such a

patient was asked who was treating her she would say the doctor, and the nurse

would be assisting the doctor in the treatment. So in the case of the procedure laid

down by the department, this makes clear that the registered medical practitioner

must decide on the termination; the process must be initiated by him and he must

remain throughout responsible for its overall conduct and control in the sense that

any actions needed to bring it to a conclusion are done by appropriately skilled staff

acting on his specific instructions, but not necessarily in his presence, though he or

another registered medical practitioner must be available to be called if required. I

can see no reason of interpreting the provision of s1 (1) of the 1967 Act so narrowly

that if anyone other than the registered medical practitioner participates in the

treatment the defence is not available.”

The prediction contemplated in that passage came to fruition some years ago. In the general

scenario postulated by Woolf J, a nurse would hand a pill to a woman and the woman takes

it. Thus, “self-administration” is restricted to the ingesting of a tablet (or a pessary)

prescribed by a doctor and handed to the woman at the clinic by a member of staff. It seems

to me that the extension of the place at which that self-administration can be carried out,

from a clinic to home, does not offend the requirement that treatment be carried out by a

registered medical practitioner any more than when the medication is given to the woman at

a clinic. In this respect I would align myself with the approach taken by Supperstone J in the

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British Pregnancy Advisory Service case (supra) where, at para 23, he reminded himself that

the Oxford English Dictionary definition of treatment in the medical context included

management in the application of remedies. If the doctor is the manager of the team

providing the treatment then he or she need not be present in the same place as those

performing the activities over which he or she has overall control. The nature of that control

has necessarily evolved as the treatment for the termination of pregnancy has developed.

The “team” referred to by Lord Diplock still exists, but the pregnant woman herself requires

to be an active participant in it, otherwise the termination will not take place. That

characterisation is not affected by the locus at which the second stage administration of

misoprostol takes place.

[41] The words of Lord Diplock in the Royal College of Nursing case are not inapposite to

the situation envisaged by respondents’ approval, but they must be read in the context that

there was no question at that time of abortions being performed other than in a hospital

setting. I accept that the passages from that decision, while authoritative, cannot be

construed as if they were primary legislation. It would be as wrong today to adopt a literal

interpretation of the 1967 Act that produced an absurd result as it would have been in 1980

when Royal College of Nursing was decided. Accordingly, there is in my view no difficulty in

construing the words of section 1(1) of the Act that require treatment “by a registered

medical practitioner” as permitting the second stage of pharmaceutical termination to take

place in the pregnant woman’s home (where she so wants) with self-administration of

misoprostol. The parts of the treatment that require the positive actions and presence of a

medical practitioner will continue to take place at a clinic with limited delegation to other

staff and then to the woman herself, for certain aspects of it. The woman is an active

participant who has the ability to refuse to continue with treatment at any stage, whether at

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a clinic, GP surgery or at home. The relationship between the requirement that home be the

woman’s ordinary residence where she wants to take the misoprostol and the role of the

medical practitioner is important in this context. The requirement that the medical

practitioner be in charge or in control throughout the treatment is met by there being

knowledge of where the woman will be when she takes the misoprostol coupled with the

ability to make contact with the medical practitioner, should that be required.

[42] While there was some criticism on behalf of the petitioner about what was described

as a “virtual presence” contemplated by the respondents, I do not consider that advice

and/or management in such a situation is any less valid if performed by telephone or even

electronic communication as opposed to in person. Standing the concession that physical

presence is not required, it matters not whether the doctor performs his or her

responsibilities from within the building where the woman is present or from some other

location. This is particularly so because the petitioner acknowledges that the challenge is

limited to the point of self-administration of the drug misoprostol and not for the period

afterwards. While there is a window of 24 hours between the mifepristone administered at

the clinic and the misoprostol taken at home, it cannot be assumed that the medical

practitioner will be less available at times when the woman chooses to take the misoprostol

at home than he or she would be if it was administered in a clinical setting. That is the sort

of issue that can properly be left to a discussion between patient and doctor. For these

reasons, I consider that the second challenge to the approval also fails in respect that the

treatment anticipated by the approval continues to be treatment by a medical practitioner in

terms of section 1(1) of the 1967 Act.

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Disposal

[43] I have concluded that the decision of the respondents to approve a woman’s home as

a place where one stage of the termination of pregnancy can be carried out is not unlawful

on either of the grounds contended for by the petitioner. Accordingly, I will repel the

petitioner’s pleas-in-law, sustain the respondents’ second and third pleas-in-law and refuse

the petition, reserving meantime all questions of expenses.