LETTERS TO THE EDITOR J Fam Plann Reprod Health Care: first published as 10.1783/147118907781005038 on 1 July 2007. Downloaded from Nurses and abortion there were plenty of expressions available which Vincent Argent, FRCOG, LLB Vincent Argent and Lin Pavey have concluded, in would have had that effect. Surgical termination Consultant Obstetrician and Gynaecologist an analysis of the House of Lords case Royal using modern methods was not amongst the (Lead in Sexual Health), Addenbrooke’s College of Nursing v DHSS [1981] 1 AC 800 procedures envisaged, and it was certainly not Cambridge University Teaching Hospital, (“the RCN case”), that without any change in the foreseen or foreseeable that it might be Cambridge, UK. E-mail: [email protected] law, nurses can legally perform surgical induced suggested that nurses might be significant abortion.1 Their article contains some dangerous operators in such procedures. Lin Pavey, RGN legal misconceptions. The dissenting views cannot merely be Member of RCN Nurses Working in Termination The RCN case concerned the participation of discounted. They emphasised, very powerfully, of Pregnancy Network nurses in prostaglandin-induced abortions. The the need for great caution in the construction of House of Lords decided by a majority (3:2) that the statute, and in particular the need for judges to Unsafe abortion in Nigeria in certain circumstances nurses could participate. be careful not to usurp the function of Parliament Each minute of every day, nearly 40 women The RCN case decided that for the procedure and engage in judicial legislation. The danger of undergo dangerous, unsafe abortions.1 These that the court was considering: such judicial legislation is particularly acute since unsafe abortions are often performed by unskilled (a) Medical abortion is a process. it is a long time since the Abortion Act 1967 was providers or under unhygienic condition or both. (b) The process may be effected by a team. enacted; abortion practice has changed Estimates based on figures for 2000 indicate that (c) Section 1(1) of the Abortion Act 1967 immeasurably since Parliament debated and 19 million unsafe abortions take place each year permits delegation to nurses of some acts voted. and an estimated 681000 women die as which form part of the process. This includes The RCN case draws no distinction in consequences of unsafe abortion, and almost all acts that have a direct abortifacient effect. principle between medical and surgical abortion. occur in developing countries.2 (d) The process must be initiated by a registered But that does not mean that all acts which are In Nigeria, as is also the case in most medical practitioner, and must be under his done or it is envisaged might be done by nurses developing countries, unsafe abortion has control throughout, in the sense that anything in the performance of surgical abortions fall assumed a serious public health problem, and done other than by him must be done within the boundaries of appropriate delegation. induced unsafe abortion has been established as pursuant to his instructions. That is the basic error into which Argent and an important contributor to maternal morbidity (e) What amounts to acceptable delegation may Pavey fall. and mortality. In Nigeria, induced abortion is a be determined by “accepted medical So: does the RCN case say that it is lawful criminal offence both for the seeker and the practice”. for nurses to perform surgical abortion? No, it provider. The penalty is 14 and 7 years jail One of the judges in the majority, Lord does not. The position in relation to nurses’ sentences, respectively, for the provider and Keith, expressly regarded the decision as one on involvement in procedures other than that client. These penalties notwithstanding, induced its own facts. He said: “…it remains to consider specifically considered in the RCN case is unsafe abortions are still performed on a daily whether, on the facts of this case the termination wholly unclear. It would be very unsafe for basis both by skilled and unskilled personnel. can properly be regarded as being “by a anyone to act on the basis of the assertions in the There are approximately 610 000 abortions registered medical practitioner”2 [emphasis my Argent and Pavey article. If it is seriously performed in Nigeria annually with an abortion own]. This means that when considering an proposed that nurses should perform surgical rate of 25.4 per 1000; of these, 60% are thought abortion procedure, unless one is dealing with abortions then the matter should be considered to be unsafe.3 In Nigeria, unsafe abortion precisely the procedure that the RCN case again by Parliament. A ruling on the point by any contributes up to 20% of maternal mortality, and considered, it cannot be asserted that a majority court lower than the House of Lords is unlikely those women that survive are faced with of the House of Lords says that the procedure to give an answer sufficiently definitive to lay to complications such as sepsis, vesicovaginal falls within Section 1(1). rest the doubts of those affected by the issue. fistula, anaemia, ruptured uterus (sometimes Although the RCN case is an important ending in hysterectomy), amongst others. statement of the meaning of Section 1(1), it Charles Foster, MA(Cantab), MRCVS Factors associated with this high morbidity leaves some important questions unanswered. Barrister, Outer Temple Chambers, London, UK. and mortality from unsafe abortion in Nigeria It is plain that “accepted medical practice” E-mail: [email protected] include restrictive abortion law, activity of itself cannot be the correct test, unless it is to be quacks and untrained providers, poor health- References seeking behaviour of women, poor and read as “medical practice accepted by the courts”. 1 Argent V, Pavey L. Can nurses legally perform surgical The main difficulty with making “accepted induced abortion? J Fam Plann Reprod Health Care inadequate post-abortion care facilities in health medical practice” the touchstone of appropriate 2007; 33: 79–82. institutions, inadequate access to family planning delegation is that the Act itself puts obvious limits 2 Royal College of Nursing v DHSS [1981] 1 AC 800; p. counselling, information and services and poor 835. on the use of that idea. Suppose that it became the 3 Note, for example, Bolitho v City and Hackney Health socioeconomic status of Nigerian women. majority opinion amongst gynaecologists that all Authority [1998] AC 232; also the High Court of This suffering and these deaths are steps in an abortion should be performed by Australia in Rogers v Whitaker (1992) 109 ALR 625. preventable and the solutions are well known, nurses. It would then, in a sense, be “accepted available, practical and cost-effective, but they http://jfprhc.bmj.com/ medical practice” that nurses should perform all Reply are too often neglected because of political and steps. But that would be prohibited by the Act. It Charles Foster’s critique is useful and agrees that social constraints. The abortion law in force in could not be legally accepted medical practice. abortion law should be modernised. The Abortion Nigeria today is still the one adopted from the Medical practice looks to the law to determine Act 1967 does not reflect the realities of current British colonial government of 1861. No what is acceptable, not vice versa.3 Any test that clinical practice and the increasing role of nurses reasonable amendment or modification has requires the law to defer entirely to medical in the provision of abortion care. been made to keep apace with time. The practice in determining the correct construction The statute could be changed but a test case existing abortion law prevents the of the Act must be a wrong test. Although in other in the House of Lords or even a ruling from the institutionalisation of safe abortion practices areas of the law (notably clinical negligence), the Department of Health would suffice. Pro-choice and drives abortion underground, thereby law has great respect for the views of responsible and anti-abortion groups hold opposing views on encouraging the use of quacks and unqualified on September 25, 2021 by guest. Protected copyright. medical practitioners, and is importantly (and how the law should be changed but it is important providers who cause distress and suffering to often decisively) informed by those views, it has that a new approach reflects modern clinical the women concerned. It also restricts long been one of the pillars of medical law that need. counselling and training of health professionals the courts, not the profession, set the standard. If Foster does state that the RCN case draws no on abortion-related issues. that is true of standard setting in the common law, distinction in principle between surgical and Post-abortion care, an unfortunately still more should it be true of statutory medical abortion and this is, in fact, the hub of neglected vital tool of the reproductive health construction. our argument. In other jurisdictions, nurses and care package for Nigerian women, should be So what must have been meant was “legally other providers are already providing a safe seriously revisited, revitalised and promoted in acceptable” medical practice. On the facts surgical service. This will assume increasing Nigeria as a very important intervention strategy considered in the RCN case, it was found that importance in the UK where the Royal College of to deal with complications arising from unsafe the medical induction procedure was acceptable Obstetricians and Gynaecologists has recognised abortions. Women who have unintended and accordingly fell within the boundaries of s. doctors’ relative disinterest in providing this pregnancies should have ready access to reliable 1(1). essential service to women. information and compassionate counselling.