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Inner House rejects challenge to drug-induced abortions at home

23 May 2019

Ministers were entitled to authorise a pregnant woman’s home as a place where the second stage of treatment for an early medical termination of pregnancy carried out by taking a drug by tablet or pessary, the Court of Session has ruled in an appeal decision.

Lord Justice Clerk Lady Dorrian, Lord Menzies and Lord Brodie refused an appeal by SPUC Pro-Life Ltd against a decision refusing its petition for judicial review of a ministerial order of 2017 that allowed such procedures. They upheld the Lord Ordinary, Lady Wise, who had rejected the petitioner's case that a woman’s "home” was not a permissible class under the Abortion Act 1967, and that the approval ran counter to the requirement under the Act for an abortion to be carried out by a medical practitioner.

The process in question, which could only be carried out before the completion of 10 weeks of pregnancy, involved the administration of two prescribed drugs normally taken some 24-48 hours apart following medical consultation. The first was taken, following a medical consultation, in tablet form in a hospital, clinic, or other approved place or class of place approved under the Act. The second could be taken in tablet or pessary form, normally 24-48 hours later, and had the medical effect of initiating the expulsion of the foetus, thus terminating the pregnancy. It could be taken at home provided the pregnant woman had attended a clinic where she had been prescribed the drugs for the purposes of termination, the first one had been taken at that clinic and the woman wanted to carry out further treatment at her home.

It was argued for the petitioner that the requirement in the Act for treatment to be by a registered medical practitioner ruled out self-administration at home: the practitioner had to be responsible for, in the sense of being in charge of, the treatment throughout the termination and to its conclusion. This accorded with the purposes of the Act, being to broaden the grounds on which abortions might lawfully be obtained while ensuring that they were carried out with all proper skill and in hygienic conditions. The treatment was only complete when the second medication was taken, not by its prescription or dispensing.

Delivering the opinion of the court, Lady Dorrian said the concept of "treatment" required to be given a wide interpretation, and what constituted "treatment" might vary according to context, 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."

What would satisfy the requirement for control by the registered medical practitioner would be a matter of fact and degree according to the nature of the process involved in the treatment. "The Lord Ordinary was correct to note the way in which medical practice in this field had evolved over time, and to consider these changes to be relevant to the issues which she required to address."

The court further agreed 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". The petitioners' argument "ignores the general clinical setting in which this process occurs": it was important to recognise that the approval only operated at the second stage of the procedure, namely after the woman had attended a clinic, been prescribed the drugs, had in fact taken the first drug at the clinic and wanted to take the second drug at home.

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. The argument based on "home" as a class of place essentially also depended on the absence of a registered medical practitioner; considerations of safety and suitability were not expressed in the legislation, and in any event "the relative nature of these terms must be taken into account... 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". It was a wrong assumption that an outpatient clinic or GP's surgery was necessarily a safer or more suitable place than the woman's home.

Click here to view the opinion of the court.

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