In early 2012, the Daily Telegraph carried out an undercover investigation at various abortion clinics in England. As a result, a police investigation was conducted and, in due course, the police asked the Crown Prosecution Service (CPS) for advice about possible criminal charges. This note relates to the decision to take no further action in relation to two doctors: Dr S and Dr R.
The case against Dr S
On 8 February 2012, a pregnant woman (referred to herein as “E”) attended a clinic using a false name. She was accompanied by an Investigative Reporter at the Daily Telegraph, posing as E’s step sister.
After initial exchanges, E explained to Dr S that she was eight weeks pregnant and that she had had a blood test in France which indicated that there was a “high chance” that she was having a girl. E said that a girl was not really appropriate for her and her partner “right now” and that they were hoping for a boy.
Dr S asked what sort of test took place in France.
E then stated that she had had a previous pregnancy involving a girl which did not go to plan. She said that there was a chromosomal abnormality and the pregnancy was lost at 22 weeks.
Dr S said, “I’m curious” and asked for reports of the test that took place in France. E said that she did not have any reports. Dr S said, “I don’t ask questions, if you want a termination, you want a termination.”
After a general discussion about E’s health and a scan, Dr S clarified whether E wanted to go to a private clinic. Dr S then telephoned a colleague to make the necessary arrangements and, in doing so, said “she’s had a foetal loss before at 22 weeks, but this time it’s basically social reasons.”
When Dr S was interviewed by the police, she produced a prepared statement. She said that E told her that she had previously miscarried a female foetus, which was found to have a foetal abnormality. She also said that although E told her that she had had a test in France which indicated the gender of the foetus, she (Dr S) did not believe her.
Dr S said that she did not know of any non-invasive test that could identify gender at such an early stage of pregnancy. She thought that E was not telling the truth and that there must have been some other reason why E wanted a termination.
Dr S said:
“A woman claiming to have discovered that the foetus is female when that is a scientific impossibility is plainly hiding the truth. It follows that the truth is likely to mean that there are serious problems surrounding the pregnancy such that a termination would be in accordance with the Act.”
Dr S said that she believed that her management of E would be supported by a reasonable and responsible body of obstetricians and gynaecologists.
The case against Dr R
On 10 February 2012, the same pregnant woman (“E”) was again engaged by the Daily Telegraph to attend a clinic, again using a false name.
After a scan conducted by a nurse, E told Dr R that she had had a previous pregnancy that ended at 22 weeks because the female foetus had “chromosomal defects”. When Dr R later asked E why she wanted a termination, E said:
“…me and my partner found out the gender in France through a blood test that you can have there in pregnancy and we found out it’s another girl. We don’t want a girl again because of the last time.”
Dr R confirmed that this was the reason and then said “it’s like female infanticide isn’t it”. E then asked if Dr R could put another reason down and Dr R agreed indicating that foetal gender is “not a good reason anytime”. Dr R agreed to put down that E was too young for a pregnancy.
When interviewed by the police, Dr R provided a prepared statement in which he said he assessed the patient and the circumstances as explained to him and concluded that an abortion was justified on health grounds. He said the assessment was reasonable and arrived at in good faith.
An abortion can only be authorised if two medical practitioners are of the opinion, held in good faith, that one of the lawful grounds for an abortion is made out. Form HSA/1 is the form that is used to record the decision of the two medical practitioners.
In the case of Dr R, there is evidence that another doctor in the same clinic, Dr K, pre-signed the form HSA/1, which was subsequently signed by Dr R. Dr K indicated on the form that he had not seen the patient. He signed as if he were the second doctor, but left the date blank.
Law and Guidance
Procuring a miscarriage is an offence contrary to section 58 of the Offences Against the Person Act 1861. However, section 1 of the Abortion Act 1967 provides that a person should not be guilty of an offence when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith, inter alia, that “the pregnancy has not exceeded its 24th week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family”.
Thus the law does not, in terms, expressly prohibit gender-specific abortions; rather, it prohibits any abortion carried out without two medical practitioners having formed a view, in good faith, that the health risks (mental or physical) of continuance outweigh those of termination. This gives a wide discretion to doctors in assessing the health risks of a pregnant patient.
The BMA’s Handbook of Ethics and Law, published in February 2012, gives the following guidance, which is the same as guidance published in 2007:
Abortion on the grounds of fetal sex
Fetal sex is not one of the criteria for abortion listed in the Abortion Act and therefore termination on this ground alone has been challenged as out with the law. There may be circumstances, however, in which termination of pregnancy on grounds of fetal sex would be lawful. It has been suggested that if two doctors, acting in good faith, formed the opinion that the pregnant woman’s health, or that of her existing children, would be put at greater risk than if she terminated the pregnancy, the abortion would arguably be lawful under section 1(1) (a) of the Abortion Act. (see page 283) [Morgan D (2001) Issues in medical law and ethics, Cavendish Publishing, London, pp147-9]. The Association believes that it is normally unethical to terminate a pregnancy on the grounds of fetal sex alone, except in cases of severe sex-linked disorders. The pregnant woman’s views about the effect of the sex of the fetus on her situation and on her existing children should nevertheless be carefully considered. In some circumstances doctors may come to the conclusion that the effects are so severe as to provide legal and ethical justification for a termination. They should be prepared to justify the decision if challenged.” [p.287]
This guidance is far from clear. But it does indicate the BMA’s view that (a) termination on the sole grounds of the gender of the foetus is not lawful; but (b) termination on the grounds of the gender of the foetus may be lawful if the effects of the pregnancy may be such that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family.
Moreover, the Department of Health publishes data on the number of abortions performed each year in England and Wales. The vast majority in 2011 (98%) are recorded as being on the basis that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman; and 99.96% of terminations on those grounds relied on the risk to the woman’s mental health. Data is not collected on the number of women declined an abortion. A Programme Manager at the Department of Health, has indicated that many doctors feel that forcing a woman to proceed with an unwanted pregnancy would cause considerable stress and anxiety.
In these cases, no follow up appointments were attended by E and no abortions were procured or were ever likely to be procured. However, an attempt to commit an offence under the Offences Against the Person Act 1861 is an offence under section 1 of the Criminal Attempts Act 1981 if the acts of the doctors were more than merely preparatory to the commission of an unlawful abortion.
The Code for Crown Prosecutors
Under the Code for Crown Prosecutors, (“the Code”) there is a two stage test for determining whether criminal charges should be brought in any given case. First, prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of a conviction. Second, if there is sufficient evidence, they must go on to consider whether a prosecution is required in the public interest.
Analysis of the evidential stage – Dr S’s case
Although E told Dr S that she had had a test in France which identified the gender of the foetus and that a girl was not appropriate for her and her partner “right now”, Dr S says she simply did not believe E. She said that she knows of no non-invasive test that can determine the sex of a foetus at such an early stage (see Dr S’s statement).
In order to prove that Dr S authorised a gender specific abortion, the prosecution would therefore have to prove that Dr S is lying when she says she knows of no test able to identify gender at such an early stage, and that, contrary to her assertions, she did believe that E knew the gender of the foetus and authorised a termination on that ground alone.
Although there is some evidence supportive of a prosecution on such a basis, not least that Dr S did not indicate to E at the time that she disbelieved her account of having had a test in France that identified the gender of the foetus, that Dr S made clear that she does not “ask questions”, and that she told a colleague when arranging follow on procedures that the termination was for “basically social reasons”, that evidence falls far short of proving beyond reasonable doubt that Dr S was lying when she said she did not believe E had had the test she claimed to have had in France. Moreover, it is clear that Dr S was, at the very least, curious about the test in France at the time and asked for reports which were not forthcoming.
There is also the additional complication of E’s reference to a previous pregnancy involving a girl with an alleged “chromosomal abnormality” which was lost at 22 weeks. E’s reference to this previous pregnancy introduced a gender specific health issue of potential relevance to Dr S’s assessment of E’s reasons for wanting a termination. And it is clear that Dr S asked a number of questions about the previous pregnancy.
Against that background, it would not be possible for the prosecution to prove beyond reasonable doubt that Dr S was lying when she said that she did not believe E had had the test she claimed to have had in France and that she authorised an abortion on gender-specific grounds alone.
There remains the question of whether there is enough evidence to provide a realistic prospect of conviction against Dr S not on the basis that she authorised a gender-specific abortion, but on the very different basis that she did not carry out a sufficiently robust assessment of the risk to E’s mental and physical health to form an opinion in good faith that the continuation of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of E. This is a very difficult question to evaluate for a number of reasons.
First, there is limited clear professional guidance to doctors setting out how far they should probe the health risks to a patient who seeks an abortion. Nor is there clear guidance about how much detail a doctor should record to evidence the assessment made.
Second, the BMA guidance makes clear that, although gender-specific abortion is unethical, “the pregnant woman’s views about the effect of the sex of the foetus on her situation and on the existing children should nevertheless be careful considered”. Here, Dr S was not only entitled, but was bound, to take into account what E told her about the problems she had had with a previous female pregnancy.
Third, the Department of Health data and the indication that “many doctors feel that forcing a woman to proceed with an unwanted pregnancy would cause considerable stress and anxiety” provides some support for Dr S’s explanation in her prepared statement that, having decided that E was not telling the truth about the test in France, she concluded that there was some other “serious problem” surrounding the pregnancy such that a termination would be in accordance with the Act.
Against that background the question whether the prosecution could prove beyond reasonable doubt that Dr S failed to carry out a sufficiently robust assessment of E’s mental and physical health to form an opinion in good faith that the continuation of the pregnancy would involve a greater risk to E’s health than termination is very finely balanced indeed. Ultimately Dr S’s contemporaneous assertions that she does not ask questions when a patient seeks an abortion and the fact that she described the reasons as “basically social reasons” to her colleague just tip the balance in making out the evidential stage of the Code test.
The prosecution case would be that although Dr S did not authorise a termination on the basis of the gender of the foetus alone, she authorised it on the simple basis that E wanted an abortion and she, Dr S, was not going to ask E questions beyond whether E was sure about her decision. Even on this narrow basis the evidence is not strong and the prospects of conviction would not be high. But, on balance, there is just sufficient evidence to provide a realistic prospect of a conviction.
Analysis of the evidential stage – Dr R’s case
If E had simply asked for a gender-specific abortion in Dr R’s case, any analysis of the evidential stage would be relatively straight-forward. But she did not.
E made reference to her previous failed female pregnancy at 22 weeks because of “chromosomal defects”, then, when asked the reasons why she wanted a termination, said: “… we found out it’s another girl. We don’t want a girl again because of the last time.” (emphasis added).
This immediately introduced a gender-specific health issue of potential relevance to Dr R’s assessment of E’s reasons for wanting termination. Dr R was not only entitled, but bound, to take into account the problems that E claimed she had had with a previous female pregnancy. And it would be perfectly reasonable to conclude that E wanted a termination because she feared that if the baby was a girl, there would be a similar “chromosomal” problem as last time. Whether her fear was rational or not, would not be relevant.
Although Dr R agreed to put down a reason for the termination which he either knew to be untrue, or never checked, namely that E was too young to continue with the pregnancy, because E linked her reasons for wanting an abortion to her previous failed female pregnancy it would be impossible for the prosecution to prove that when Dr R said in his prepared statement that an abortion was justified on health grounds, he was not only lying but, on the contrary, authorised a termination on the ground of gender alone.
As with Dr S, there remains the question of whether there is enough evidence to provide a realistic prospect of a conviction, not on the basis that Dr R authorised a gender specific abortion, but on the very different basis that he did not carry out a sufficiently robust assessment of the risk to E’s mental and physical health to form an opinion in good faith that the continuation of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of E.
Again this is a very difficult question to evaluate for the same reasons as in Dr S’s case. There are limited clear professional guidelines to doctors setting out the approach they should take. The BMA guidance appears to permit doctors to take into account the effect of the sex of the baby on the mother when assessing risk to health, and the Department of Health indication that many doctors feel that forcing a woman to proceed with an unwanted pregnancy would cause considerable stress and anxiety provides some support for Dr R’s conclusion, which he says was based on the circumstances as explained to him.
As in Dr S’s case, against that background, the question whether the prosecution could prove beyond reasonable doubt that Dr R failed to carry out a sufficiently robust assessment of E’s mental and physical health is very finely balanced indeed.
The fact that Dr R had been given a form HSA/1 that had been pre-signed by Dr K is relevant. Although an investigation showed that pre-signing forms is common practice, that in itself did not mean that the two practitioners might not later consult with each other. But it did mean that there was a possibility that no further consideration of whether the grounds justifying an abortion would be considered by another medical practitioner as on the face of it HSA/1 was complete.
In his prepared statement, Dr R said “In this case form HSA/1 had been pre-signed by [Dr K]. That did not influence my clinical judgement in any way. Such pre-signing was common place at [the clinic]. It was sanctioned by the management. I also understand it is common place practice elsewhere.”
Ultimately the fact that Dr R never really probed E’s reasons and was prepared to put down a reason which he either knew to be false, or never tested, namely that E was too young for a pregnancy just tips the balance in making out the evidential stage of the code test. As with Dr S, the prosecution case would be that, although Dr R did not authorise a termination on the basis of the gender of the foetus alone, he authorised it on the simple basis that E wanted an abortion. But again it is obvious from this analysis that even on this narrow basis the evidence is not strong and the prospects of conviction would not be high. But, on balance, there is just sufficient evidence to provide a realistic prospect of a conviction.
The public interest
The starting point is that the offence of procuring a miscarriage under the Offences Against the Person Act 1861 is a serious offence and Dr R and Dr S were professionals in a position of trust. Abortion without carrying out a proper assessment of the risk to the patient’s health and without forming a genuine and good faith view about that risk is not permitted under our law. But the question in this case is not whether a prosecution of Dr S and Dr R is required in the public interest on the basis that they authorised a gender-specific abortion. There might be powerful reasons for a prosecution in the public interest in such circumstances. But, for the reasons set out above, no prosecution could be brought on such a basis.
The question is whether a prosecution is required on the very different basis that Dr S and Dr R failed to carry out a sufficiently robust assessment of the risks to E’s health by continuation rather than termination of her pregnancy. In those circumstances, very different considerations apply.
First, it has to be recognised that, unusually, there is a good deal of overlap between the evidential and public interest stages of the Code in a case such as this. The public interest in prosecuting a narrow case which is not strong on the basis of a failure to carry out a proper risk assessment is very different to the public interest in prosecuting a strong case where the evidence shows that the termination was authorised solely on gender-specific grounds.
Second, there was no guidance on how a doctor should go about assessing the risk of physical or mental health, no guidance on where the threshold of risk lies and no guidance on a proper process for recording the assessment carried out. The discretion afforded to a doctor in assessing the risk to the mental or physical health of a patient wanting an abortion is wide and, having consulted an experienced consultant in Obstetrics and Gynaecology, it appears that there is no generally accepted approach among the medical profession.
The expert makes clear that “The Abortion Act does not state explicitly that both or either medical practitioners are required to examine or indeed have any direct contact with the woman requesting the abortion, and this is reflected in the contemporaneous official certification …” This conclusion is drawn from form HSA/1 itself which, on its face, permits a doctor to certify that he or she has formed an opinion about the patient’s reasons for wanting an abortion without either seeing or examining her.
Further investigations in West Midlands, West Mercia and Essex show that the practice of pre-signing HSA/1 forms was widespread. A CQC inspection of 20 forms in Hereford showed that of 20 forms examined in March 2012, 10 were apparently pre-signed. A subsequent investigation of 463 cases showed that in 236 of those cases one of the signatures was a photocopy. In the West Midlands a number of the pre-signed forms were identified. And in Essex a CQC investigation identified practices of pre-signing HSA/1 forms.
Notably, soon after the investigation in these cases, much clearer guidance was issued by the Department of Health. But even the new guidance does not indicate that each doctor must see and examine the patient before forming a view, only that he or she must have “enough evidence of the woman’s circumstances to justify that they were able to form a good faith opinion that the ground for termination exists.”
The prosecution would have to be in a position to prove, beyond reasonable doubt, that the assessments carried out by the doctors was carried out in bad faith or carried out in such a way that fell below a standard which any reasonable doctor would consider adequate. In the absence of any considered medical guidance it is extremely difficult for the prosecution to undertake this exercise. Equally, it would be very difficult for a jury to assess what may or may not be an “adequate” assessment by the doctor.
It is questionable whether the interests of justice are served in bringing a prosecution where such levels of uncertainty exist. In the absence of guidance a jury would have no yardstick by which they could measure the conduct of any doctor facing prosecution. Where there is such uncertainty there is a serious risk that different juries would reach different decisions on essentially the same facts.
There is also the fact that both doctors have been referred to the General Medical Council’s Interim Order Panel and each has conditions imposed on his/her registration. Having consulted the GMC, it is clear that the Council will investigate these cases. Although, of course, the GMC has no criminal powers, it is arguably more appropriate, on the facts of these two cases, for a professional disciplinary body to evaluate the proper approach that doctors should take to assessing health risks, in circumstances in which that approach has not been prescribed in detailed professional guidance, than it is for a criminal court.
As with the evidential stage of the Code test, the public interest in this case is finely balanced. But, if the narrow basis of any prosecution is kept firmly in mind, the public interest factors against prosecution outweigh those in favour. In reaching this conclusion, we fully consulted with the police who agreed with us about the public interest.
