40 BEDFORD STREET, LONDON, WC2E 9EN
Patrons of the Association: The Rt. Hon. Lord WHEATLEY; the Rt. Hon. Lord RUSSELL OF KILLOWEN
Chairman and Editor M. N. M. BELL, M.A. (Cantab.),
Hon. Secretary C. R. FRADD, M.A., LL.B. (Cantab.),
Hon. Treasurer T. G. A. BOWLES, M.A. (Cantab.),
Spring 1985
Number 25
News and Comment
Annual General Meeting 1985
The Annual General Meeting and Annual Conference of the Association will be held this year in Manchester on Saturday 13th July. The A.G.M will be in the morning and the conference in the afternoon. Full details will be given in our next Newsletter.
Under our Constitution the election of the officers of the Association, that is the Chairman, the two Vice-Chairmen, the Treasurer and the Secretary, has to take place every three years at the Annual General Meeting. The present officers were elected in the summer of 1982, and accordingly elections will take place at the Annual General Meeting on the 13th July, 1985. The Committee of our Association consists of the elected officers, and additional committee members appointed by them. At the present time there are fourteen committee members, including the five elected officers.
The procedure for the 1985 elections has been drawn up by the committee and will be as follows:
Any member of the Association wishing to nominate any other member for any of the five offices must submit a nomination, supported by the signatures of five other supporting members and the signed acceptance of the nominee, to our Secretary on or before the 1st May 1985. The names of all nominees will be published in the Summer Newsletter which is due to come out at the beginning of June. Each member of the Association may cast one vote for each officer, and may vote either in person at the A.G.M. if he attends it, or by post if he is unable to be present at the A.G.M. Postal votes must be received by our Secretary by Saturday 1st July 1985. Only persons who are members of the Association on the 1st March, 1985 (including the existing officers) will be eligible to stand for election as officers of the Association.
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Isle of Man Abortion Bill
As most readers of this Newsletter will know, the Isle of Man is not part of the United Kingdom. The legislature consists of the Lieutenant Governor with the legislative council, and the House of Keys, the whole assembly being known as Tynwald. The law relating to abortion in the island is governed by the Criminal Code of 1872 as amended by the Criminal Law Act 1981. It is also affected by the Infanticide and Infant Life (Preservation) Act 1938.
The effect of this is that abortion law in the Isle of Man is very much as it was in the United Kingdom before 1967. It has come to the attention of this Association, however, that in 1985 a "Medical Termination of Pregnancy Bill" may be brought before the Tynwald. In many respects this Bill bears a strong resemblance to the Abortion Act 1967. In the crucial clause 2(i) there are, however, important differences. It reads as follows:
"2(i) Subject to the provisions of this section, a person shall not be guilty of an offence, under the law relating to abortion, when a pregnancy of less than 22 weeks is terminated by an authorised practitioner if he and another practitioner, whether authorised or not, are of the opinion, formed in good faith -
(a) that the continuance of the pregnancy involves a substantial risk —fi) to the life of the pregnant woman, or (ii) of prolonged impairment of the physical or mental health of the pregnant woman; or(b) that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped."
It is well known and has been explained very thoroughly in our Newsletters, especially in numbers 10 and 11, that the Abortion Act has not had the effect in this country intended by its sponsors. It is so vague and unsatisfactory in its wording that the law prohibiting abortion on demand in this country is difficult to enforce. Because of the failure of successive governments adequately to help and support pregnant women or to attempt to enforce the law, around 20% of all pregnancies in this country are now terminated by induced abortion.
Can those responsible for introducing this Bill in the Isle of Man really be unaware of these undesirable consequences of the Abortion Act 1967? If not, can it be that they deliberately intend and wish to bring about a similar situation in the Isle of Man? To make laws which are vague and hard to enforce is to bring the Rule of Law into disrepute. Legalised abortion has caused untold misery to countless women, and is both cruel and unjust so far as the unborn child is concerned.
It is understood that many people in the Isle of Man are concerned about this proposed retrograde step, and members of this Association who live in that area are urged to make every effort to support them in their opposition to this pernicious Bill.
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The Warnock Report - The House of Lords
The debate in the House of Lords on the Report of the Committee of Enquiry into Human Fertilisation and Embryology ("the Warnock Report") on 31st October, 1984 drew forth many excellent comments from the peers. The speech of the former Attorney-General, Lord Rawlinson of Ewell, was particularly noteworthy. Among other things he said:
"If society permits some of its members to treat human life in accordance with the proposals of this report, we move inexorably down a path which will lead to a monstrous society, ultimately of fabricated creatures".
Other speeches displayed a considerable confusion of thought. In particular the following statement by Lord Soper must have caused concern to many Christians:
"More importantly, as a minister of Christianity (very imperfectly for many years), I have had to weigh many times the good that can be done to a family against the harm that might be done particularly to forms of life which, whatever their potential sanctity at a certain stage, in my judgment are not to be compared with the value of those who are fully adult and looking forward to the blessings that can be offered through many of these modern methods of assisting nature and indeed of making possible that which natural processes do not make possible".
Lord Soper is here adopting the latest argument by which people are seeking to justify denying basic human rights to the human embryo. This is that the embryo is of less "value" than the adult, and therefore may legitimately be destroyed, if this is considered to be in the interests of the adult. It is easy to see how this principle (that human beings who are categorised as "less valuable" may be destroyed in the interests of those who are categorised as "more valuable") is capable of infinite extension, as has been proved in our own century by the horrors of Nazi medical and surgical experiments.
We note Lord Soper's words: "in my judgment". By these words Lord Soper makes clear that he is not speaking with reference to an objective scale of values. He implies that it is a matter of personal judgment what value another human being should have. The concept that subjective private judgment is the right basis for valuing fellow human beings with a view to determining which of them may be killed cannot be accepted by a civilized society.
If pressed, Lord Soper would probably say that he did have an objective test for determining the comparative value of human beings, such as their size or their sex, or their ability to express their wishes, or to contribute to the community. To value human beings in such an arbitrary and subjective way is to ignore the distinction between human beings and things, which is fundamental to every system of law or ethics. Human beings have an intrinsic value by virtue of what they are, regardless of whether they can at any particular moment communicate with or benefit others. To deny this fact is to render worthless every principle of human rights.
The only rational basis for valuing any being is the nature of that being — what that being is. An embryo is a human being, possessing from fertilisation the full potential which every human being possesses. It is therefore clear that every embryo is fully entitled to human rights, because those rights attach to every human being by virtue of his or her humanity.
It is a fundamental principle of such rights that anybody having the care or control of another human being has a duty to take all reasonable steps to preserve the life of that human being. To suggest that you may disregard this principle, if in someone's private judgment the human being you want to kill is of low value, is no more than an illogical attempt to justify the unacceptable, and should be firmly rejected by anyone who respects human rights.
By way of contrast with the views of Lord Soper, the reality of the situation was well expressed by Lord Denning, who said that having read the scientific evidence he would hold, and he hoped that the judges would hold, that from fertilisation onwards there was a living human being entitled to protection just as much as the law protects a child. He went on to say:
"The [Warnock] committee recommends that the law should give protection to the embryo. If there is no legislation, I would suggest that it does so already, by holding that that is a human being from the moment of fertilisation, and the law should protect it just as it already protects a child. If it does protect it in this way, it cannot be sold or bought, it cannot be destroyed, it cannot be experimented upon for research or the like."
It seems clear that if the views of Lord Denning were accepted by the Courts, then the Warnock Report and its recommendations (so far as it relates to in vitro fertilisation) would become nothing more than a historical curiosity. In view of its many illogicalities and inconsistencies, this would be a fate it richly deserves, and one which would be warmly welcomed by all clear-thinking people. We are in full agreement with what the Marquess of Reading and Lord Rawlinson said in their memorable speeches on this occasion.
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Providing Abortions for Minors
There are approximately one million girls aged 14-15 in the United Kingdom, and according to latest figures from the Office of Population Censuses and Surveys about 4,000 of them had abortions in 1984. About two thirds of these are done on the National Health Service, and about one third privately. The number of abortions provided to minors has been increasing for some time, and has increased by 20% in the past six years, a very disturbing trend. If nothing else, these sobering statistics call seriously into question the common assumption that an increased availability of contraceptives to minors will be accompanied by a decline in their pregnancy rate.
It may well be that one reason for this increase has been that in recent years doctors and Family Planning Agencies, who have been consulted by children under 16 who have become pregnant, have been increasingly prepared to recommend or provide an abortion without the knowledge or consent of their parents. A report in "The Times" of 2nd December 1983 quoted a representative of a private family planning clinic as saying that only one third of girls under 16 who came to them agreed to tell then parents at the first consultation. The clear implication was that where such agreement was not obtained from the child the parents would not be informed.
This policy, the background to which is clearly set out in the article by Mr. David Poole Q.C. elsewhere in this Newsletter, will undoubtedly be affected by the unanimous judgment in the Court of Appeal in the case of Gillick v. West Norfolk and Wisbech Area Health Authority and another, which was given on the 21st December 1984.
Lord Justice Parker in his judgment said that up to the age of discretion no one save the Court was entitled to interfere with the parents' rights (and duties) flowing from custody; and that, under the Common Law, it appeared in general that the age of discretion was the age of majority so far as outsiders were concerned. On the question of criminality he referred to s.l4 of the Sexual Offences Act 1956, and pointed out that this provided that a girl under 16 could not in law give any consent so as to prevent an act being an indecent assault. He concluded from this that a doctor, who, for example, examined a ten-year-old was at least at risk of prosecution unless he had the consent of a parent, and that the doctor was similarly at risk without such consent when examining any girl aged up to sixteen. Any doctor who afforded contraceptive advice or abortion treatment to a girl under 16 without the knowledge or consent of her parents, save in an emergency, infringed the legal rights of the parent or guardian.
The Court accordingly granted a declaration that (inter alia) no doctor or other professional person employed by the first defendant, either in the Family Planning Service, or otherwise, might give any contraceptive and/or abortion advice and/or treatment to any child of the plaintiff below the age of 16, without the prior knowledge and consent of the child's parent or guardian, save in cases of emergency or with the leave of the Court.
This Association has always opposed the killing of children before birth on the grounds that such children are fully human and so entitled to human rights, of which the most important is the right to life. A cursory consideration might lead some people to conclude that the Court of Appeal's decision in the Gillick case was stressing the rights of parents, as opposed to the rights of children. So to interpret it would be to minimise its significance.
Children who have not reached the age when they can feed themselves have a right to be fed by their parents., Equally, children who have not reached the age where they are capable of making a mature and informed judgment about what medical treatment they require have a right to be advised and guided by their parents on this. Thus the decision upholds the right of children to be guided by their parents, and enables parents to carry out their duties towards their children in this respect.
It is understood that the defendant is appealing to the House of Lords, and it is to be hoped that the Law Lords will uphold the decision of the Court of Appeal. Meanwhile it is hoped that this decision may lead to a fall in the number of abortions being performed on minors. Mrs. Gillick and her legal representatives are to be congratulated on the very great service they have rendered to the community and to the unborn members of it.
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Confidentiality in Medicine
By Mr. David Poole Q. C.
A. Introduction
Medical confidentiality is a very old concept, but what does it mean, to whom is it owed, and what is its status in English law?
In the U.K., where until now there is no specific law of privacy, any legal right to confidentiality, medical or otherwise, must lie in either contract or tort. People often assume that confidence between doctor and patient is a function of a contractual association between them. But normally no such association exists, for the doctor's contract within the N.H.S. is with the Area Health Authority and not with the patient, whose rights to confidentiality must therefore lie elsewhere.
It has been suggested by the Law Commission (Law Commission No. 110) that breach of confidence (including medical confidentiality) should be defined as a tort by statute, and in several E.E.C. Countries (e.g. France and Belgium), medical confidentiality is sanctioned in the criminal code.
B. Rule and Exceptions
The principle of confidentiality has been variously stated but has rarely, if ever, been stated in terms of an unqualified duty of secrecy. So, by the Hippocratic Oath, "Whatever ... I see or hear . . . which ought not to be spoken of abroad, I will not divulge."; by the Declaration of Geneva "I will respect the secrets confided in me"; by the B.M.A. Handbook of Medical Ethics (1981) "A doctor must preserve secrecy on all he knows. There are five exceptions ..." and by the General Medical Council's guidelines of August 1983, as revised in Autumn 1984, "It is a doctor's duty to his patient (except in the cases mentioned below) strictly to observe the rule of professional secrecy". Eight categories of exception are then identified:
a) patient's consent;b) information shared with colleague(s) sharing the care of the patient;c) (sometimes) close relatives;d) (rarely) third parties not related;e) statutory requirement (e.g. notification of infectious disease);f) court order;g) public interest (e.g. during Police investigation of serious crime);h) medical research.
It should be noted that it is a statutory function of the G.M.C. to give its advice on the standard of professional conduct and medical ethics, and that the same Guidelines issue the following advice affecting the treatment of minors:
4. "Where a minor requests treatment concerning a pregnancy or contraceptive advice 'if the patient refuses to allow a parent to be told, the doctor (whether or not he decides to offer advice or treatment) must observe the rule of professional secrecy in his management of the case.”
This is consistent though not identical with the Memorandum issued to Area Health Authorities by the D.H.S.S. in May 1974, as revised in December 1980, and forms the subject matter of Mrs. Victoria Gillick's application for declarations in the High Court. Discussion of the merits of that application is not within the scope of this article, but it is worth noting:
i) that whereas in the case of a child, when his or her health is at risk, it is accepted that confidentiality is generally to be shared with the parents whatever the child's wishes, at paragraph 4 of the G.M.C. guidelines the position is precisely reversed. In this area (pregnancy and contraception) confidentiality is to be shared only if the child consents, irrespective of any view the doctor may have formed that his care of the child requires that the parents be informed.ii) that, in this area, children have a greater right to professional secrecy than their parents (see exceptions c) and d) above).
C. Public Interest
It is not proposed here to discuss each category of exception to the Rule, but something should be said about the G.M.C.'s exception (g) (public interest). In Gartside-v-Outram ([1856] 1 L.J. Ch.113), Wood V.C. said "There is no confidence as to the disclosure of iniquity", and Lord Denning M.R. in Initial Services Ltd.,-v-Putterll ([19671 3 A.E.R. 145), extended this exception to crimes, frauds and misdeeds, both those actually committed as well as those in contemplation, provided always - and this is essential — that the disclosure is justified in the public interest. In every case, disclosure must be to someone who has a proper interest to receive the information (e.g. the police in the case of a crime). These remarks of the then M.R. were applied by Ungoed Thomas J.I. Beloff-v-Pressdram Ltd. ([1973] I A.E.R. 241,) in which he said that it was lawful to disclose in the public interest "matters medically dangerous to the public".
These principles, granting freedom in proper circumstances for the disclosure of iniquity, apply not only to the confidentiality owed by doctor to patient, but to that owed by employee to employer or colleague to colleague - a factor of clear importance in an age where the practice of medicine in hospital and clinics, or of research in laboratories is almost invariably a team effort. But it is one thing to have the freedom to disclose and quite another to be under a duty to disclose. There is not normally a legal duty to disclose information concerning crimes (limited exceptions are to be found at Section 11 of the Prevention of Terrorism (Temporary Provisions) Act, 1976 and Section 5(1) of the Criminal Law Act, 1967).
(I am greatly indebted for the above discussion to Anthony Hofler's article "Disclosing Iniquity" Law Society Gazette 6th June 1984).
D. Minors
The question of the doctor's duty of confidentiality to the child who is his patient is, as mentioned above, not within the scope of the present discussion. Neither is the closely related question of the validity of a child's consent to treatment. These questions still await final resolution in the courts and it is hoped that they may be more fully discussed at a later date. Fleeting note, however, may be made of Section 8 of the Family Law Reform Act, 1969, which followed the recommendations of the Latey Committee in fixing 16 as the age of majority for consent to surgical, medical and dental treatment; of In P ({1980) 80 L.G.R. 301) (Butler-Sloss J). where it was not challenged that the consent of the parents or of the local authority exercising parental control or of the Judge and Wardship, was necessary for the aborting of a girl aged 15; of In D. ([1976] Fam 185 193) (Heilbron J.) where no one doubted that it was for the parent or the judge or wardship to give or withhold consent to the sterilisation of an 11 year old girl; and finally of H-v- Lambeth London Borough Council (Times 5/4/84) (Balcombe J.) where it was stressed that no major decision concerning a ward (in that case a girl of 16) could be taken without leave of the court.
E. Conclusion
This subject continues to be one of controversy. In December 1983 Dame Josephine Barnes and 48 co-signatories wrote to the Lancet expressing their concern about threats to medical confidentiality. They concentrated on 3 areas - late abortion, the care of the severely malformed baby and contraception for children under 16. The letter provoked many replies (e.g. Lancet 7/1/84), several of them frankly sceptical about the uses to which the concept of confidentiality was being put. Above all the suspicion was expressed from within, but not only from within, the medical profession itself that confidentiality was being invoked not for the benefit of the patient but as a cloak for the activities of the doctor. Whether or not this suspicion is justified, there can be little doubt that it is now widely spread, and that it threatens to erode that public confidence that the medical profession has for generations so effectively worked to achieve. It may be hoped that this threat will not be lightly regarded by the present leaders of the profession.
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Law Society's National Conference 1984 - Session on the Sanctity of Life
By our Secretary Mr Christopher Fradd M.A., Solicitor
One major feature of the Law Society's National Conference of 1984 at Bournemouth was a session, ably chaired by Sir David Napley, entitled "The Sanctity of Life". The preliminary notes circulated to those participating made it clear that discussion was not to be quite so wide ranging as that title would suggest, but was to be concentrated on the issues considered by the Warnock Committee and the recommendations embodied in its Report. In the event discussion was mainly upon the moment when life began; the general nature and significance of fertilisation "in vitro" with particular reference to the work carried out at Bourn Hall; the desirability of permitting research on human embryos; and the extent to which the law could or should control this field of human activity. The members of the panel were Professor J. J. Scarisbrick, the National Chairman of Life (Save the Unborn Child); Dr. R. G. Edwards, the Scientific Director of Bourn Hall Clinic; Dr. Anne McLaren, Director of the Medical Research Council Mammalian Development Unit (who was a member of the Warnock Committee); and the Honourable Mr. Justice Woolf.
Dr. Edwards accepted that the law must respect human life, but considered that this applied to the born child rather than the human embryo. He also agreed that doctors must act within the law, but hoped that the law would not restrict his work of fertilisation in vitro which enabled a woman to bear a child who would not otherwise be able to do so. Furthermore he considered it essential that he should be able to examine the embryos he had brought into being and to refuse to implant in a womb any who were likely to be handicapped. He was adamant that it was desirable to fertilise all the ova taken from a woman in order to select the "best" of the resulting embryos regardless of the fate of the rest. For example, the previous day he had taken ova from nine women and from these had produced 65 embryos. Altogether he now had about 600 embryos in the deep freeze. In due course these would be disposed of in accordance with their parents' wishes. [Presumably in most cases this would result in the death of those embryos.]
In answer to a questioner who opined that human life started at birth, Dr. Edwards said he did not believe that fertilisation marked the beginning of life, but failed to give a clear answer as when he considered it did begin. By contrast, Professor Scarisbrick firmly declared that human life began at fertilisation and that birth was a mere incident in life, a change of the environment in which the human being lived.
One questioner (I think facetiously) asked whether, if it was desirable to choose which embryos to implant, thus excluding the handicapped, it would be a good thing to screen all conceptions. Amazingly Dr. Edwards, who emerged as one not to jib at the logical corollaries of his own theories, actually agreed, and thought that in 50 years time all embryos would be examined in the laboratory, and that thereby the live birth of handicapped children would be eliminated.
Talk then shifted to the question of experiments upon human embryos. Manifestly, the reason why scientists want to experiment upon such embryos is because they are human. Yet, to avoid the moral implications, an elaborate denial of the nature of the embryo is sometimes devised. On this occasion Dr. McLaren (who, to her credit, herself only experiments upon mice) argued that as an embryo may spontaneously divide into twins up to the 14th day after conception therefore (sic) the embryo could not be definitely said to be a human individual until then. The idea that the embryo was human ab initio, though in some cases capable of division until the 14th day, she did not find persuasive. She sought refuge in the notion that all human life was a continuum including the male and female gametes. As no protection was claimed for them therefore (sic) there need be none for the embryo until it was beyond doubt an individual. Thus experiments should be permitted (as recommended by the Warnock Committee) until the 14th day.
Professor Scarisbrick replied that the human embryo was the product of human parents and was thus human from the moment it comes into existence at fertilisation. He drew the analogy of a cricket match — the setting of the field and the opening batsmen going out to the wicket being the preliminaries (as when the male and female gametes get into position) and the bowling of the first ball being the start of the match (as when the embryo comes into existence). "The teams would be very surprised if at the end of the first over it was announced that the match had not yet begun."
Mr. Justice Woolf thought it odd that such concern should be expressed for the human embryo when the law already permitted abortion at a much later age. [No doubt members will be very conscious of this point, for there is indeed a very strong link between the evil permitted by the Abortion Act and that proposed to be permitted by the Warnock Report.] Mr. Justice Woolf went on to voice his deep concern about whether the legislation proposed by the Warnock Committee would be enforceable. It is to be hoped that the Government will consider carefully such an authoritatively expressed opinion (which coincides with the view expressed by our Chairman Mr. Michael Bell in his article "The Warnock Report" in The Law Society's Gazette of 19th December, 1984 p. 3558) before deciding how to react to the Warnock Report, and in particular before establishing any licensing body of the kind it envisages.
The Association of Lawyers for the Defence of the Unborn accepts the undisputed finding of modern embryology that human life begins at conception. The Association accordingly holds that natural justice requires that the unborn child, no matter how young, should enjoy the same full protection of the criminal law as is enjoyed by his or her mother or father or by any other human being. The Association was founded by
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