Nadine Dorries’ (and Frank Field’s) amendment to the Health and Social Care bill currently before the UK Parliament on the provision of counselling and advice before termination of a pregnancy raises some interesting constitutional and practical issues. If passed by the House of Commons – a prospect that has receded after the Tories indicated they would advise their MPs to vote against (for the murkiest of reasons) – would the measure have effect in Scotland?
The short answer is that it is complicated.
Under the Scotland Act 1998, abortion is clearly a reserved matter, listed in Schedule 5. Section J1 simply states “abortion” but does this cover the law governing the provision of ancillary services pertaining to abortion? Most other aspects of health are devolved, including clinical guidelines and services such as counselling and advice; but in practice, very often Royal Colleges which have UK jurisdiction often provide such guidelines. Indeed, the UK ones are referred to in Scotland’s sexual health strategy. Respect and Responsibility Strategy and Action Plan for Improving Sexual Health was published in 2005 by the then Scottish Executive, but is still in effect. Section 46 and 47 cover termination services:
46. Termination of pregnancy is a matter of the greatest sensitivity and the Abortion Act 1967 as amended sets out the statutory framework within which terminations can be conducted. Counselling is a crucial element in any decision on whether or not termination should proceed and it is important that counselling should be non-judgemental and non-directional, with women having access to full information on every option. Professional guidance such as the British Medical Association’s ethical guidelines on the law and ethics of abortion and the Royal College of Obstetricians and Gynaecologists (RCOG) guidelines on “The Care of Women Requesting Induced Abortion” should be followed.
47. Access to termination services should be available within the framework of the law, and protocols, drawing on the current RCOG guidelines, should exist in each NHS Board area designed to ensure consistency in service response and practice, while recognising that decisions in particular cases will depend on the specific circumstances.
This RCOG guideline, last reviewed and published in 2004 (although a new one is due to be published soon), is for all obstetricians and gynaecologists practising in the UK and aims to provide a national protocol governing the organisation of termination services as well as information for women. It encourages the use of nationally developed patient information that can be adapted to include local circumstances. Like Respect and Responsibility, the guideline emphasises the need for impartial information.
Nadine Dorries’ amendment seeks to do three things. First, to create a statutory duty to make “independent information, advice and counselling services for women requesting termination of pregnancy…”; second, to define independent services as either that provided by a private body that does not provide termination of pregnancy services or a statutory body; third, to require NICE to make recommendations on the care of women seeking a termination and then, to require health or social care bodies to comply with those recommendations.
This third part would not apply to Scotland: NICE does not have jurisdiction over NHS Scotland. We can take on board NICE recommendations or we can ignore them, as we have seen to some controversy, over the provision of certain drugs or treatments. In any event, Scotland has its own equivalent body in NHS Quality Improvement Scotland that can make its own recommendations. By not referring to this body, any regulations in this regard would not apply, even to a reserved matter like abortion. It’s a common mistake in Westminster legislation and amendments since devolution, to “forget” to refer to the equivalent Scottish legislation or bodies being amended.
Moreover, it is doubtful if the first part of the amendment would apply either. While abortion is reserved, the provision of information etc services is not – otherwise, Scotland’s sexual health strategy would not be making recommendations on counselling and the sort of guidelines that should be followed. However, even if this part of the amendment applied to Scotland, it simply would not have the effect or impact that Nadine Dorries desires here.
There is huge difference in how termination services are provided, and by whom, across the UK. According to the RCOG, in 2002, 99.8% of abortions in Scotland were carried out in NHS hospitals, yet in England only 42% were, with a further 36% funded by the NHS but carried out by charitable providers, like Brook and BPAS. Even if Dorries’ amendment succeeds, and even if it applied to Scotland, it simply would not have effect. Because the vast majority of terminations are carried out by the NHS and counselling, advice and information is either provided by NHS staff (allowed under her amendment) or a charitable organisation (unaffected by her amendment).
So, even if Norries’ amendment succeeds, it would seem that women in Scotland will escape her tyranny. No matter. No woman should be treated like this by parliamentarians, with an implicit assumption that she is incapable of making an informed choice by herself and conversely, is utterly susceptible to the impact of partial advice and information on such as a monumental decision as having a baby. A woman suggesting that other women are of very little brain – who’d have thunk it. And whatever your stance on the issue of abortion, this nasty little amendment should be resisted simply on the grounds that it insults women and represents potentially the worst attack on their legal capacity since the 19th Century when married women were not allowed to own their own property
For this reason alone I will be lobbying Scottish MPs to vote against this amendment. I hope you do too.