Appeal judges dismiss legal challenge against Scots law approving abortions at home

The Inner House of the Court of Session upheld a judge’s decision to dismiss a legal challenge brought by the Society for the Protection of Unborn Children (SPUC), which argued that the home was not a permissible “class of place” where terminations could take place and that the decision to approve the home as such a place was contrary to the legal requirement that termination treatment be carried out by a “registered medical practitioner”.

‘Unlawful approval’

The Lord Justice Clerk, Lady Dorrian, sitting with Lord Menzies and Lord Brodie, heard that the appellant was seeking judicial review of the decision of the Scottish Ministers to issue the Abortion Act (Place for Treatment for the Termination of Pregnancy) (Approval) (Scotland) 2017, approving a pregnant woman’s home as a class of place where the second stage of treatment for an early medical termination of pregnancy (EMT) – where the woman has attended a clinic and been prescribed mifepristone and misoprostol to be taken for the purposes of termination of her pregnancy – could be carried out.

The SPUC argued that the approval was “unlawful”, but the Lord Ordinary rejected their arguments.

The appellants challenged the Lord Ordinary’s decision on two grounds, submitting that the judge Lady Wise erred in holding that a pregnant woman’s home, where the self-administration takes place, could be a “class of place” which might be approved in terms of section 1(3A) of the Abortion Act 1967; and erred in holding that self-administration at home of the second stage abortifacient could constitute treatment “by a registered medical practitioner” (RMP) in terms of section 1(1) the 1967 Act.

It was argued that the legislation contained restrictions relating to the person who may administer the treatment – namely a registered medical practitioner; and the place – in a National Health Service hospital or other approved place or class of place, for the purpose of ensuring that abortion takes place in conditions considered to be “safe and suitable”.

The approval allowed treatment to take place in the absence of a medical practitioner and at the woman’s home, which were “incompatible” with the legislature’s assessment of what either safety or suitability requires, meaning the approval was “ultra vires”.

It was also argued that the Lord Ordinary was wrong to find that the approval of the home as a class of place involved a “significant restriction”, the basis of which was that “the medical practitioner is to have ongoing responsibility for the woman’s treatment while she is at home”.

However, the appeal judges agreed with the Lord Ordinary’s decision.

‘Safe and suitable place’

Delivering the opinion of the court, the Lord Justice Clerk said: “In our view the concept of ‘treatment’ requires to be given a wide interpretation, in common with the authorities to which we were referred. Moreover, it is important to bear in mind that what constitutes ‘treatment’ may vary according to context, and in particular in light of the nature of the procedure being undertaken. We therefore agree with the Lord Ordinary that a purposive rather than a literal interpretation is called for.

“The RMP in charge of the treatment, who has advised the patient and arranged for the administration of the first medication in the clinic, does not cease to be in charge of the treatment merely by virtue of prescribing the second medication to be taken or administered at home, any more than he would cease to be in charge in a clinic by prescribing a medicine to be handed to the patient by a nurse.

“The argument that the RMP cannot be considered in charge of the treatment when the medication is taken at home ignores the general clinical setting in which this process occurs: it is important to recognise that the approval only operates at the second stage of the procedure, namely after the woman has attended a clinic, been prescribed mifepristone and misoprostol, has in fact taken the first drug at the clinic and wants to take the second drug at home.

“The Lord Ordinary concluded that the requirement for control was sufficiently met by the doctor’s knowledge of where the woman would be ‘coupled with the ability to make contact with the medical practitioner, if required’. We agree with her conclusion.”

Lady Dorrian added: “The legislation confers a very broad discretion on Ministers to approve a place or class of place where the termination of pregnancy may take place. The submission for the reclaimer was that the conditions of the approval, as to place or in relation to RMP, were ‘incompatible with the legislature’s assessment as to what suitability and safety require’. However, qualifications that the place be safe and suitable are not in the legislation.

“Whilst we would have little difficulty in accepting that safety and suitability may be relevant considerations in the choice of place, these are very relative terms, which take their real meaning from the nature of the activity to be carried on there. The arguments advanced regarding safety and suitability would appear to be arguments more suited to a rationality challenge than the vires challenge mounted by the reclaimer.

“The reality is, it seems to us, that the reclaimer’s argument on the first ground of appeal is inextricably linked with the second: in essence the argument is that the home is not a valid class because an RMP is not present or in active control.

“Even if it may be implied that safety and suitability are essential requirements of a class of place to be approved, the relative nature of these terms must be taken into account.

“In the present case the activity taking place is restricted to the taking of a tablet or use of a pessary.

“The Lord Ordinary was correct in our view to say that the class of place need only be safe and suitable for the specific purpose permitted in the approval, namely the taking of the medication.

“The Lord Ordinary was right to differentiate 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’.”