Judge dismisses legal challenge against Scots law approving abortions at home

Campaigners who claimed that legislation allowing woman to terminate pregnancies by taking abortion pills at home is “unlawful” have had their legal challenge dismissed.

 

A judge in the Court of Session rejected the petitioner’s argument 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”.

 

Lady Wise heard that the petitioner, the Society for the Protection of Unborn Children (SPUC), sought judicial review of the decision of the Scottish Ministers to grant an approval in October 2017 in terms of section 1(3) and 1(3A) of the Abortion Act 1967.

 

The approval, the Abortion Act 1967 (Place for Treatment for the Termination of Pregnancy) (Approval) (Scotland) (2017), was to the effect that the home of a pregnant woman who is undergoing treatment for the purposes of termination of her pregnancy is a class of place where treatment for termination of pregnancy may be carried out, where 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 the pregnant woman has taken mifepristone at that clinic and wants to carry out the treatment at home.

 

 

Counsel for the petitioner submitted that the approval of the home as a class of place was “unlawful”.

 

The conditions of the home being the woman’s residence and her desire to take the drug were “insufficient” for her home to be a “suitable place”.

 

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. 

 

It was argued that the absence of conditionality in relation to safety or hygiene standards rendered the approval “much too wide”.

 

Further, it was submitted that self-administration following a medical practitioner’s advice, where the patient was able to call upon that practitioner, did not constitute treatment by a medical practitioner.

 

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” not envisaged by the legislation.

 

 

However, the judge concluded that the decision of the respondents to approve a woman’s home as a “class of place” where one stage of the early medical abortion (EMA) or pharmaceutical termination could be carried out was “not unlawful” on either of the grounds contended for by the petitioner.

 

In a written opinion, Lady Wise said: “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… 

 

“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 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.”

 

 

The court also rejected 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 could not be satisfied if the second stage of an EMA was self-administered at home and that this rendered the approval unlawful.

 

Lady Wise added: “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…Even under a hospital procedure, 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 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.

 

“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.

 

“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 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.”