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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Royal College of Nursing of the United Kingdom v Department of Health and Social Security [1980] UKHL 10 (05 February 1980) URL: http://www.bailii.org/uk/cases/UKHL/1980/10.html Cite as: [1981] 1 All ER 545, [1981] AC 800, [1980] UKHL 10, [1981] 2 WLR 279

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Parliamentary Archives,
HL/PO/JU/18/241

Die Jovis 5° Februarii 1981

Upon Report from the Appellate Committee to whom
was referred the Cause Royal College of Nursing of
the United Kingdom against Department of Health
and Social Security, That the Committee had heard
Counsel as well on Monday the 8th as on Tuesday
the 9th days of December last upon the Petition and
Appeal of the Department of Health and Social Security
of Alexander Fleming House, Elephant and Castle,
London SW1 6B1 praying that the matter of the Order
set forth in the Schedule thereto, namely an Order of
Her Majesty's Court of Appeal of the 7th day of
November 1980 except so far as regards the words
" the Plaintiffs' costs of this Appeal and of their costs
below before the Honourable Mr. Justice Woolf be
taxed by a Taxing Master and paid by the Defendants
to the Plaintiffs' Solicitors" and " the Defendants'
Application for leave to present a Petition of Appeal
to the House of Lords be granted on condition that
the said Defendants do not seek to alter the Order for
costs by this honourable court or to ask for costs in
the House of Lords " might be reviewed before Her
Majesty the Queen in Her Court of Parliament and
that the said Order so far as aforesaid might be
reversed, varied or altered or that the Petitioners might
have such other relief in the premises as to Her Majesty
the Queen in Her Court of Parliament might seem meet;
as also upon the Case of the Royal College of Nursing
of the United Kingdom lodged in answer to the said
Appeal; and due consideration had this day of what
was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual
and Temporal in the Court of Parliament of Her
Majesty the Queen assembled, That the said Order
of Her Majesty's Court of Appeal of the 7th day of
November 1980 in part complained of in the said
Appeal be, and the same is hereby, Reversed and that
the Order of Mr. Justice Woolf of the 31st day of July
1980 be, and the same is hereby, Restored: And it
is further Ordered, That there be no Order as to Costs
in this House: And it is also further Ordered, That
the Cause be, and the same is hereby, remitted back
to the Queen's Bench Division of the High Court of
Justice to do therein as shall be just and consistent
with this judgment.




HOUSE OF LORDS

ROYAL COLLEGE OF NURSING OF THE UNITED KINGDOM

(RESPONDENTS)

v.

DEPARTMENT OF HEALTH AND SOCIAL SECURITY

(APPELLANTS)

Lord Wilberforce
Lord Diplock
Lord Edmund-Davies
Lord Keith of Kinkel
Lord Roskill




Lord Wilberforce

MY LORDS,

On 27th October 1967 Parliament passed the Abortion Act 1967. Its
long title describes it as an Act "to amend and clarify the law relating to
" termination of pregnancy by registered medical practitioners ".

Before the Act was passed it was an offence (sc. felony) for any person
with intent to procure the miscarriage of any woman, whether she be or
be not with child, unlawfully to administer to her or cause to be taken by
her any poison or other noxious thing or unlawfully to use any instrument
or other means whatsoever with the like intent. (Offences Against the
Person Act 1861 section 58.) Further, the Infant Life (Preservation) Act
1922 created the offence of child destruction in relation to a child capable
of being born alive. These provisions thus affected not only doctors, but
nurses, midwives, pharmacists and others: they were in operation in 1967,
subject only to the defence judicially given to the doctor in Rex v. Bourne
[1939] 1 K.B. 687.

Section 1 of the Act of 1967 created a new defence, available to any
person who might be liable under the existing law. It is available:

(i) " when a pregnancy is terminated by a registered medical
" practitioner " —these are the words of the Act.

(ii) when certain other conditions are satisfied, including the
expressed opinion of two registered medical practitioners as
to the risks (specified in paragraphs (a) and (b)) to mother, or
child, or existing children, and the requirement that the
treatment for the termination of pregnancy must be carried out
in a National Health Service Hospital or other approved place.

The present case turns upon the meaning to be given to condition (i).

The issue relates to a non-surgical procedure of medical induction by
the use of a drug called prostaglandin. This operates upon the mother's
muscles so as to cause contractions (similar to those arising in normal
labour) which expel the foetus from the womb. It is used during the second
trimester. The question has been raised by the Royal College of Nursing
as to the participation of nurses in this treatment, particularly since nurses
can be called upon (subject to objections of conscience which are rarely
invoked) to carry it out. They have felt, and express grave concern as to
the legality of doing so and seek a declaration, that a circular issued by the
Department of Health and Social Security, asserting the lawfulness of the
nurses' participation, is wrong in law.

There is an agreed statement as to the nature of this treatment and the
part in it played by the doctors and the nurses or midwives. Naturally this
may vary somewhat from hospital to hospital, but, for the purpose of the
present proceedings, the assumption has to be made of maximum nurse
participation, i.e. that the nurse does everything which the doctor is not
required to do. If that is not illegal, participation of a lesser degree must
be permissible.

1. The first step is for a thin catheter to be inserted via the cervix into
the womb so as to arrive at, or create, a space between the wall of the
womb and the amniotic sac containing the foetus. This is necessarily done



2

by a doctor. It may, sometimes, of itself bring on an abortion, in which
case no problem arises: the pregnancy will have been terminated by the
doctor. If it does not, all subsequent steps except number four may be
carried out by a nurse or midwife. The significant steps are as follows—I
am indebted to Brightman L.J. for their presentation:

2. The catheter (i.e. the end emerging from the vagina) is attached,
probably via another tube, to a pump or to a gravity feed apparatus. The
function of the pump or apparatus is to propel or feed the prostaglandin
through the catheter into the womb. The necessary prostaglandin infusion
is provided and put into the apparatus.

*3. The pump is switched on, or the drip valve is turned, thus causing
the prostaglandin to enter the womb.

4. The doctor inserts a cannula into a vein.

*5. An oxytocin drip feed is linked up with the cannula. The
necessary oxytocin (a drug designed to help the contractions) is supplied
for the feed.

6. The patient's vital signs are monitored, so is the rate of drip or flow.

*7. The flow rates of both infusions are, as necessary, adjusted.

*8. Fresh supplies of both infusions are added as necessary.

9. The treatment is discontinued after discharge of the foetus, or expiry
of a fixed period (normally 30 hours) after which the operation is considered
to have failed.

The only steps in this process which can be considered to have a direct
effect leading to abortion (abortifacient steps) are those asterisked. They
are all carried out by the nurse, or midwife. As the agreed statement
records " the causative factor in inducing ... the termination of pregnancy
" is the effect of the administration of prostaglandin and/or oxytocin and
" not any mechanical effect from the insertion of the catheter or cannula ".

All the above steps 2-9 are carried out in accordance with the doctor's
instructions—which should, as regards important matters, be in writing. The
doctor will moreover be on call, but may in fact never be called.

On these facts the question has to be answered: has the pregnancy been
terminated by the doctor; or has it been terminated by the nurse; or has it
been terminated by doctor and nurse? I am not surprised that the nurses
feel anxiety as to this.

In attempting to answer it, I start from the point that in 1967—the date
of the Act—the only methods used to produce abortions were surgical
methods; of these there were several varieties, well enough known. One of
these was by intra-amniotic injection—i.e. the direct injection of glucose or
saline solutions into the amniotic sac. It was not ideal or, it appears, widely
used. Parliament must have been aware of these methods and cannot have
had in mind a process where abortifacient agents were administered by
nurses. They did not exist. Parliament's concern must have been to
prevent existing methods being carried out by unqualified persons and to
insist that they should be carried out by doctors. For these reasons
Parliament no doubt used the words, in section 1(1) "termination of
" pregnancy by a registered medical practitioner ".

Extra-amniotic administration of prostaglandin was first reported in 1971,
and was soon found to have advantages. It involves, or admits, as shown
above, direct and significant participation by nurses in the abortifacient
steps. Is it covered by the critical words?

In interpreting an Act of Parliament it is proper, and indeed necessary, to
have regard to the state of affairs existing, and known by Parliament to' be
existing, at the time. It is a fair presumption that Parliament's policy or
intention is directed to that state of affairs. Leaving aside cases of omission
by inadvertence, this being not such a case when a new state of affairs, or
a fresh set of facts bearing on policy, comes into existence, the courts have to



3

consider whether they fall within the Parliamentary intention. They may
be held to do so, if they fall within the same genus of facts as those to which
the expressed policy has been formulated. They may also be held to do
so if there can be detected a clear purpose in the legislation which can only
be fulfilled if the extension is made. How liberally these principles may be
applied must depend upon the nature of the enactment, and the strictness
or otherwise of the words in which it has been expressed. The courts
should be less willing to extend expressed meanings if it is clear that the Act
in question was designed to be restrictive or circumscribed in its operation
rather than liberal or permissive. They will be much less willing to do
so where the new subject matter is different in kind or dimension from that
for which the legislation was passed. In any event there is one course
which the courts cannot take, under the law of this country; they cannot fill
gaps; they cannot by asking the question " What would Parliament have
" done in this current case—not being one in contemplation—if the facts had
" been before it" attempt themselves to supply the answer, if the answer is
not to be found in the terms of the Act itself.

In my opinion this Act should be construed with caution. It is dealing
with a controversial subject involving moral and social judgments on which
opinions strongly differ. It is, if ever an Act was, one for interpreting in
the spirit that only that which Parliament has authorised on a fair reading
of the relevant sections should be held to be within it. The new (post-1967)
method of medical induction is clearly not just a fresh species or example of
something already authorised. The Act is not one for " purposive" or
" liberal" or " equitable " construction. This is a case where the courts
must hold that anything beyond the legislature's fairly expressed authority
should be left for Parliament's fresh consideration.

Having regard particularly to the Act's antecedents and the state of
affairs existing in 1967, which involved surgical action requiring to be
confined to termination by doctors alone, I am unable to read the words
" pregnancy terminated by a registered medical practitioner" as extended
or extensible to cover cases where other persons, whether nurses, or
midwives, or even lay persons, play a significant part in the process of
termination. That a process in which they do so may be reliable, and
an improvement upon existing surgical methods, may well be the case—we
do not in fact even know this. It may be desirable that doctors' time
should be spared from directly participating in all the stages of the
abortifacient process: it may be (though there are very many hospitals and
nursing homes in the United Kingdom not all with the same high standards)
that nurses, midwives, etc., may be relied upon to carry out the doctor's
instructions accurately and well. It may be that doctors, though not present,
may always be available on call. All this may, though with some
reservation, be granted, but is beside the point. With nurse, etc.,
participation, to the degree mentioned, a new dimension has been introduced:
this should not be sanctioned by judicial decision, but only by Parliament
after proper consideration of the implications and necessary safeguards.

The appellants contend that the Act is framed in sufficiently wide terms
to authorise what the Department says is lawful.

Their contention, or that which they were willing to accept as their
contention during argument was that the words " pregnancy is terminated
" by a registered medical practitioner " mean " pregnancy is terminated by
" treatment of a registered medical practitioner in accordance with
" recognised medical practice". But, with all respect this is not
construction: it is rewriting. And, moreover, it does not achieve its
objective. I could perhaps agree that a reference to treatment could fairly
be held to be implied: no doubt treatment is necessary. But I do not see
that this alone carries the matter any further: it must still be treatment by
the registered medical practitioner. The additional words, on the other
hand, greatly extend the enactment, and it is they which are supposed to
introduce nurse participation. But I cannot see that they do this. For
a nurse to engage in abortifacient acts cannot, when first undertaken, be
in accordance with recognised practice, when it is the legality of the practice



4

that is in question. Nor can the recognised practice, (if such there is, though
the agreed statements do not say so) by which nurses connect up drips to
supply glucose or other life-giving or -preserving substances cover connecting
up drips, etc. giving substances, designed to destroy life—for that is what
they are. The added words may well cover the provision of swabs, bandages,
or the handing up of instruments—that would only be common sense: they
cannot be used as cover for a dimensional extension of the Act.

The argument for the Department is carried even further than this, for it
is said that the words " when a pregnancy is terminated by a registered
" medical practitioner" mean " when treatment for the termination of
" pregnancy is carried out by a registered medical practitioner". This is
said to be necessary in order to cover the supposed cases where the
treatment is unsuccessful, or where there is no pregnancy at all. The latter
hypothesis I regard as fanciful: the former, if it was Parliament's
contemplation at all in 1967 (for failures under post-1967 methods are not
in point) cannot be covered by any reasonable reading of the words.
Termination is one thing: attempted and unsuccessful termination wholly
another. I cannot be persuaded to embark upon a radical reconstruction of
the Act by reference to a fanciful hypothesis or an improbable casus omissus.

It is significant, as Lord Denning M.R. has pointed out, that recognised
language exists and has been used, when it is desired that something shall
be done by doctors with nurse participation. This takes the form " by a
" registered medical practitioner or by a person acting in accordance with
" the directions of any such practitioner ". This language has been used
in four Acts of Parliament (listed by Lord Denning) three of them prior to
the Act of 1967, all concerned with the administration of substances, drugs
or medicines which may have an impact upon the human body. It has not
been used, surely deliberately, in the present Act. We ought to assume that
Parliament knew what it was doing when it omitted to use them.

In conclusion. I am of opinion that the development of prostaglandin
induction methods invites and indeed merits, the attention of Parliament.
It has justly given rise to perplexity in the nursing profession. I doubt
whether this will be allayed when it is seen that a majority of the judges who
have considered the problem share their views. On this appeal I agree
with the judgments in the Court of Appeal that an extension of the Act
of 1967 so as to include all persons, including nurses, involved in the
administration of prostaglandin is not something which ought to, or can, be
effected by judicial decision. I would dismiss the appeal.

Lord Diplock

my lords,

This appeal arises out of a difference of opinion between the Royal
College of Nursing of the United Kingdom and the Department of Health
and Social Security about the true construction of the Abortion Act 1967;
and, in particular, whether it renders lawful the part played by hospital
nurses in the treatment for terminating pregnancies by a method known
as medical induction. This comparatively modern method which was
unknown as a means of bringing about an abortion at the time of the
passing of the Act, has come into increasing use for terminating pregnancies
in the second trimester (i.e. between the twelfth and twenty-fourth weeks),
when it presents less risk to the patient than those methods more exclusively
surgical in character that were formerly employed. The treatment takes
considerably longer than the purely surgical methods; the average duration
is eighteen hours with a maximum of thirty hours and the part played
by nurses in the treatment is of greater importance as well as longer than
when a purely surgical method is employed.

The Abortion Act 1967 which it falls to this House to construe is
described in its long title as "An Act to amend and clarify the law
" relating to termination of pregnancy by registered medical practitioners ".

5

The legalisation of abortion, at any rate in circumstances in which the
termination of the pregnancy is not essential in order to save the mother's
life, is a subject on which strong moral and religious convictions are held;
and these convictions straddle the normal party political lines. That, no
doubt, is why the Act, which incorporates a " conscience clause " that I
shall be quoting later, started its parliamentary life as a private member's
bill and, maybe for that reason, it lacks that style and consistency of
draftsmanship both internal to the Act itself and in relation to other statutes
which one would expect to find in legislation that had its origin in the
office of parliamentary counsel.

Whatever may be the technical imperfections of its draftsmanship,
however, its purpose in my view becomes clear if one starts by considering
what was the state of the law relating to abortion before the passing of
the Act, what was the mischief that required amendment, and in what
respects was the existing law unclear.

The Abortion Act 1967 applies to England and to Scotland; but your
Lordships are not concerned with Scotland in the instant case. In England
the " law relating to abortion " which it was the purpose of the Act to
amend and clarify, is defined in section 6 of the Act itself as meaning:
" sections 58 and 59 of the Offences against the Person Act 1861 ". The
relevant section, which it is desirable to set out verbatim, is section 58.
(Section 59 deals with supplying abortifacients and instruments for use in
unlawful abortions).

" Every Woman, being with Child, who, with Intent to procure
" her own Miscarriage, shall unlawfully administer to herself any
" Poison or other noxious Thing, or shall unlawfully use any Instrument
" or other Means whatsoever with the like Intent, and whosoever, with
" Intent to procure the Miscarriage of any Woman, whether she be or
" be not with Child, shall unlawfully administer to her or cause to
" be taken by her any Poison or other noxious Thing, or shall
" unlawfully use any Instrument or other Means whatsoever with the
" like Intent, shall be guilty of Felony, and being convicted thereof
" shall be liable, at the Discretion of the Court, to be kept in Penal
" Servitude for Life or for any Term not less than Three Years,—or
" to be imprisoned for any Term not exceeding Two Years, with or
" without Hard Labour, and with or without Solitary Confinement."

An offence under the section is committed whether the woman was in
fact pregnant, or not, and, if pregnant, whether or not the attempt to
terminate it was in fact successful. The section on the face of it draws no
distinction between terminations of pregnancies carried out on the advice of
medically-qualified gynaecologists or obstetricians and those " back-street
" abortions " that figured so commonly in the calendars of assizes in the
days when I was trying crime; but the requirement that in order to
constitute the offence the abortifacient must be administered or the instrument
used " unlawfully ", indicated that there might be circumstances in which
it would be lawful to bring about an abortion.

It had long been generally accepted that abortion was lawful where it was
necessary to save the pregnant woman's life; but what circumstances, if any,
short of this legitimised termination of a pregnancy does not appear to have
attracted judicial notice until, in 1938, the matter was put to a sagaciously
selected test by Mr. Aleck Bourne, a well-known obstetrical surgeon at
St. Mary's Hospital, London. He there performed an abortion on a
fourteen-year-old girl who was seven weeks pregnant as a consequence of
being the victim of a particularly brutal rape. He invited prosecution for
having done so. The evidence at his trial was that if the girl had been
allowed to bear the child she would " be likely to have become a mental
" wreck ".

The summing-up by Macnaghten J. in R. v. Bourne [1939] 1 K.B. 687,
resulted in an acquittal. So the correctness of his statement of the law
did not undergo examination by any higher authority. It still remained in
1967 the only judicial pronouncement on the subject. No disrespect is



6

intended to that eminent judge and former head of my old chambers, if
I say that his reputation is founded more upon his sturdy common sense
than upon his lucidity of legal exposition. Certainly his summing-up,
directed as it was to the highly exceptional facts of the particular case, left
plenty of loose ends and ample scope for clarification. For instance, his
primary ruling was that the onus lay upon the Crown to satisfy the jury
that the defendant did not procure the miscarriage of the woman in good
faith for the purpose only of " preserving her life " but this requirement he
suggested to the jury they were entitled to regard as satisfied if the probable
consequence of the continuance of the pregnancy would be to " make the
" woman a physical or mental wreck" —a vivid phrase borrowed from
one of the witnesses but unfortunately lacking in precision. The learned
judge would appear to have regarded the defence as confined to registered
medical practitioners, and there is a passage in his summing-up which
suggests that it is available only where the doctor's opinion as to the probable
dire consequences of the continuance of the pregnancy was not only held
bona fide but was also based on reasonable grounds and adequate
knowledge—an objective test which it would be for the jury to determine
whether, upon the evidence adduced before them, it was satisfied or not.

Such then was the unsatisfactory and uncertain state of the law that the
Abortion Act 1967 was intended to amend and clarify. What the Act sets
out to do is to provide an exhaustive statement of the circumstances in which
treatment for the termination of a pregnancy may be carried out lawfully.
That the statement, which is contained in section 1, is intended to be
exhaustive, appears from section 5(2):

" For the purposes of the law relating to abortion, anything done
" with intent to procure the miscarriage of a woman is unlawfully done
" unless authorised by section 1 of this Act ".

This sets aside the interpretation placed by Macnaghten J. in R. v. Bourne
upon the word " unlawfully " in sections 58 and 59 of the Offences against
the Person Act 1861.

The " conscience clause " which I have already mentioned is also worth
citing before coming to the crucial provisions of section 1. It is section 4(1)
and so far as is relevant for the present purposes it reads:

"4.—(1) .... no person shall be under any duty, whether by
" contract or by any statutory or other legal requirement, to participate
" in any treatment authorised by this Act to which he has a conscientious
" objection ".

Section 1 itself needs to be set out in extenso:

" 1.—(1) 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 is terminated by a registered medical practitioner if two
" registered medical practitioners are of the opinion, formed in good
" faith-

" (a) that the continuance of the pregnancy would involve risk to
" the life of the pregnant woman, or if injury to the physical
" or mental health of the pregnant woman or any existing
" children of her family, greater than if the pregnancy were
" terminated; 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.

" (2) In determining whether the continuance of a pregnancy would
" involve such risk of injury to health as is mentioned in paragraph (a)
" of subsection (1) of this section, account may be taken of the pregnant
" woman's actual or reasonably foreseeable environment.

" (3) Except as provided by subsection (4) of this section, any
" treatment for the termination of pregnancy must be carried out in
" a hospital vested in the Minister of Health or the Secretary of State



7

" under the National Health Service Acts, or in a place for the time
" being approved for the purposes of this section by the said Minister
" or the Secretary of State.

" (4) Subsection (3) of this section, and so much of subsection (1)
" as relates to the opinion of two registered medical practitioners, shall
" not apply to the termination of a pregnancy by a registered medical
" practitioner in a case where he is of the opinion formed in good
" faith, that the termination is immediately necessary to save the life
" or to prevent grave permanent injury to the physical or mental health
" of the pregnant woman."

My Lords, the wording and structure of the section are far from elegant,
but the policy of the Act, it seems to me, is clear. There are two aspects
to it: the first is to broaden the grounds upon which abortions may be
lawfully obtained; the second is to ensure that the abortion is carried out
with all proper skill and in hygienic conditions. Subsection (1) which deals
with the termination of pregnancies other than in cases of dire emergency
consists of a conditional sentence of which a protasis, which is a condition
precedent to be satisfied in order to make the abortion lawful at all is stated
last: " if two registered medical practitioners are of the opinion ", etc. It
is this part of the subsection which defines the circumstances which qualify
a woman to have her pregnancy terminated lawfully. They are much
broader than the circumstances stated in R. v. Bourne; and since they depend
upon comparative risks of injury to the physical or mental health of the
pregnant woman, existing children of the family and to the possibility of
abnormalities in the yet unborn child, they are matters of expert medical
opinion. The Act leaves them to be decided not by the jury upon expert
evidence after the event as in R. v. Bourne but in advance by two registered
medical practitioners whose opinion as to the existence of the required
circumstances, if formed in good faith and duly certified under section 2(a),
renders treatment for the termination of the pregnancy lawful if it is carried
out in accordance with the requirements of the Act.

I have spoken of the requirements of the Act as to the way in which
" treatment for the termination of the pregnancy" is to be carried out
rather than using the word "termination" or "terminated" by itself, for
the draftsman appears to use the longer and the shorter expressions
indiscriminately, as is shown by a comparison between subsections (1) and
(3) of section 1, and by the reference in the conscience clause to " treatment
" authorised by this Act ". Furthermore if " termination " or " terminated "
meant only the event of miscarriage and not the whole treatment undertaken
with that object in mind, lack of success, which apparently occurs in one to
two per cent of cases, would make all who had taken part in the unsuccessful
treatment guilty of an offence under section 58 or 59 of the Offences against
the Person Act 1861. This cannot have been the intention of Parliament.

The requirement of the Act as to the way in which the treatment is to be
carried out, which in my view throws most light upon the second aspect of
its policy and the true construction of the phrase in subsection (1) of section 1
which lies at the root of the dispute between the parties to this appeal, is
the requirement in subsection (3) that, except in cases of dire emergency,
the treatment must be carried out in a National Health Service Hospital (or
private clinic specifically approved for that purpose by the Minister). It
is in my view evident that in providing that treatment for termination of
pregnancies should take place in ordinary hospitals, Parliament contemplated
that (conscientious objections apart) like other hospital treatment, it would
be undertaken as a team effort in which, acting on the instructions of the
doctor in charge of the treatment, junior doctors, nurses, para-medical and
other members of the hospital staff would each do those things forming part
of the whole treatment, which it would be in accordance with accepted
medical practice to entrust to a member of the staff possessed of their
respective qualifications and experience.

Subsection (1) although it is expressed to apply only "when a pregnancy
" is terminated by a registered medical practitioner" (the subordinate



8

clause that although introduced by "when" is another protasis and has
caused the differences of judicial opinion in the instant case) also appears
to contemplate treatment that is in the nature of a team effort and to extend
its protection to all those who play a part in it. The exoneration from
guilt is not confined to the registered medical practitioner by whom a
pregnancy is terminated, it extends to any person who takes part in the
treatment for its termination.

What limitation on this exoneration is imposed by the qualifying phrase:
"when a pregnancy is terminated by a registered medical practitioner"?
In my opinion in the context of the Act, what it requires is that a
registered medical practitioner, whom I will refer to as a doctor, should
accept responsibility for all stages of the treatment for the termination of
the pregnancy. The particular method to be used should be decided by the
doctor in charge of the treatment for termination of the pregnancy; he
should carry out any physical acts, forming part of the treatment, that in
accordance with accepted medical practice are done only by qualified
medical practitioners, and should give specific instructions as to the carrying
out of such parts of the treatment as in accordance with accepted medical
practice are carried out by nurses or other members of the hospital staff
without medical qualifications. To each of them, the doctor, or his
substitute, should be available to be consulted or called on for assistance
from beginning to end of the treatment. In other words, the doctor need
not do everything with his own hands; the requirements of the subsection
are satisfied when the treatment for termination of a pregnancy is one
prescribed by a registered medical practitioner carried out in accordance
with his directions and of which a registered medical practitioner remains
in charge throughout.

My noble and learned friend Lord Wilberforce has described the successive
steps taken in the treatment for termination of pregnancies in the third
trimester by medical induction; and the parts played by registered medical
practitioners and nurses respectively in the carrying out of the treatment.
This treatment satisfies the interpretation that I have placed upon
the requirements of section 1 of the Act. I would accordingly allow the
appeal and restore the declaration made by Woolf J.

Lord Edmund-Davies

MY LORDS,

This House is presently concerned with the task of interpreting the
Abortion Act 1967, and of applying the interpretation to the termination of
pregnancy by a certain type of medical induction. It is well known that
the Act was the outcome of a private member's Bill dealing with a highly
controversial topic and, as enacted, it is the product of considerable
compromise between violently opposed and emotionally charged views. In
its preamble it is described as an Act " to amend and clarify the law
" relating to termination of pregnancy by registered medical practitioners ",
and, far from simply enlarging the existing abortion facilities, in the true
spirit of compromise it both relaxed and restricted the existing law.

Before turning to the 1967 Act, reference must be made to the still-extant
section 58 of the Offences against the Person Act 1861, which provides as
follows :

" Every woman, being with child, who, with intent to procure her
" own miscarriage, shall unlawfully administer to herself any poison or
" other noxious thing, or shall unlawfully use any instrument or other
" means whatsoever with the like intent, and whosoever, with intent
" to procure the miscarriage of any woman, whether she be or be not
" with child, shall unlawfully administer to her or cause to be taken by
" her any poison or other noxious thing, or shall unlawfully use any
" instrument or other means whatsoever with the like intent, shall
" be ... liable ... to [imprisonment] for life."

9

Section 1 of the Abortion Act 1967 is in these terms:

" (1) 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 is terminated by a registered medical practitioner if two
" registered medical practitioners are of the opinion, formed in good
" faith-

" (a) that the continuance of the pregnancy would involve risk
" to the life of the pregnant woman, or of injury to the physical
" or mental health of the pregnant woman or any existing
" children of her family, greater than if the pregnancy were
" terminated; 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.

" (2) In determining whether the continuance of a pregnancy would
" involve such risk of injury to health as is mentioned in paragraph (a)
" of subsection (1) of this section, account may be taken of the pregnant
" woman's actual or reasonably foreseeable environment.

" (3) Except as provided by subsection (4) of this section, any
" treatment for the termination of pregnancy must be carried out in
" a hospital vested in the Minister of Health or the Secretary of State
" under the National Health Service Acts, or in a place for the time
" being approved for the purposes of this section by the said Minister
" or the Secretary of State.

" (4) Subsection (3) of this section, and so much of subsection (1) as
" relates to the opinion of two registered medical practitioners, shall
" not apply to the termination of a pregnancy by a registered medical
" practitioner in a case where he is of the opinion, formed in good
" faith, that the termination is immediately necessary to save the life
" or to prevent grave permanent injury to the physical or mental health
" of the pregnant woman."

Although no reference to an act done " for the purpose only of preserving
"the life of the mother" appears in the 1861 Act, it does appear in the
Infant Life (Preservation) Act 1929, section 1. And in Bourne [1939] 1
K.B. 687 Macnaghten J. expressed the view that it represented the
common law and should be read into the earlier Act by reason of the
inclusion of the adverb " unlawfully " in section 58. In that case a surgeon
had aborted a girl who had been shockingly raped and, although there was
no immediate danger to her life, he claimed that she would have become
a physical and mental wreck had her pregnancy been allowed to continue.
Directing the jury on a charge of contravening section 58, the learned judge
said of " preserving the life of the mother " that the words—

" ought to be construed in a reasonable sense, and, if the doctor is
" of opinion, on reasonable grounds and with adequate knowledge, that
" the probable consequence of the continuance of the pregnancy will
" be to make the woman a physical or mental wreck, the jury are
" quite entitled to take the view that the doctor who, under those
" circumstances and in that honest belief, operates, is operating for the
" purpose of preserving the life of the mother."

Following the acquittal in that case, the courts did not closely scrutinise the
evidence of danger to life itself; see, for example, Newton v. Stungo [19581]
Crim. L.R. 469 where, on a section 58 charge of unlawfully using an
instrument, Ashworth J. directed the jury that, " Such use of an instrument
" is unlawful unless the use is made in good faith for the purpose of
" preserving the life or health of the woman ", and added, " when I say
" ' health ' I mean not only her physical health but also her mental health ".

My Lords, such was the law and practice when the Abortion Act reached
the Statute Book in 1967, section 6 thereof providing that the phrase "the
" law relating to abortion" used in sections 1(1) and 5(2) thereof means
" sections 58 and 59 of the Offences against the Person Act 1861, and any
" rule of law relating to the procurement of abortion ". And section 5(2)



10

itself provided that, " For the purposes of the law relating to abortion,
" anything done with intent to procure the miscarriage of a woman is
" unlawfully done unless authorised by section 1 of this Act".

Details of the termination of pregnancy by administering prostaglandin are
the subject of a helpful agreed statement prepared by the parties to this
litigation. This has been examined in the speech of my noble and learned
friend, Lord Wilberforce, and it is sufficient for me to say that the Royal
College of Nursing, while adopting a neutral role, were and remain deeply
disturbed as to the legality of the marked degree of participation by nurses
in the challenged method of induction and therefore sought clarification and
guidance from the court. They must ruefully regard such judicial
illumination as has hitherto been vouchsafed them, Woolf J. pronouncing
" without any doubt at all" that the prostaglandin procedure is permissible
within the terms of section 1 of the 1967 Act, while the Court of Appeal
unanimously held that it is not, Lord Denning M.R. declaring emphatically
that " the continuous act of administering prostaglandin from the moment it
" is started until the unborn child is expelled from the mother's body . . .
" must be done by the doctor personally. It is not sufficient that it is done
" by a nurse when he is not present."

My Lords, I have already commented that it would be quite wrong to
regard the 1967 Act as wholly permissive in character, for it both restricted
and amplified the existing abortion law. It amplified " the law relating to
" abortion " as declared in Bourne (ante) by extending it in section l(l)(a) to
cases where " the continuance of the pregnancy would involve risk to the ...
" physical or mental health of ... any existing children of [the pregnant
" woman's] family, greater than if the pregnancy were terminated "; and
in section 1(1)(b) by including the case of " substantial risk that if the child
" were born it would suffer from such physical or mental abnormalities as
" to be seriously handicapped."

On the other hand, the Act also restricted the Bourne law in several
ways. The pregnancy must now be terminated " by a registered medical
" practitioner ", and this even if, in the words of section 1 (4), "... the
" termination is immediately necessary to save the life or to prevent grave
" permanent injury to the physical or mental health of the pregnant
" woman", whereas Bourne imposed no such restriction in the cases
predicated, and a qualified doctor who was not a registered medical
practitioner could have invoked the decision in that case. And, save in
those circumstances of urgency, abortive treatment is required under the
Act to be carried out in such premises as are designated in section 1 (3) and
section 3. Again, in the forefront is the requirement in section 1(1) of the
opinion of two doctors that the risks indicated in (a) or (b) are involved if
pregnancy were allowed to go full term. And a further practical (though
not legal) restriction was imposed by the requirement under section 2 that
the " registered medical practitioner who terminated a pregnancy [must]
" give notice of the termination and such other information relating to the
" termination as may be ... prescribed ".

My Lords, the opening words of section 1(1) are clear and simple, clear
to understand and simple to apply to the only abortive methods professionally
accepted in 1967 when the Act was passed. Save in grave emergency, only
a qualified doctor or surgeon could then lawfully perform the orthodox
surgical acts, and the statute could have had no other person in mind. Then
should section 1 be interpreted differently now that abortive methods
undreamt of in 1967 have since been discovered and become widely
applied? The answer must be that its simple words must not be distorted
in order to bring under the statutory umbrella medical procedures to which
they cannot properly be applied, however desirable such an extension may
be thought to be. The extra-amniotic procedure first reported in 1971 has
already been described by my noble and learned friend, Lord Wilberforce,
and it is sufficient for my present purpose to quote merely the final
paragraph of the " Agreed Statement as to Clinical Background ":

" It will be appreciated that in the medical induction process the
" causative factor in inducing the labour and hence the termination of



11

" pregnancy is the effect of the administration of prostaglandin and/or
" oxytocin and not any mechanical effect from the insertion of the
" catheter or cannula. In that the nurse does, on the instructions of the
" doctor, commence or augment the flow of prostaglandin or oxytocin,
" and even sometimes effect the connection between the already
" inserted catheter and the prostin pump and the already intravenous
" cannula and the oxytocin infusion, her role in the process does
" include acts which have, and are intended to have, an abortifacient
" effect. Such acts are, however, always carried out in accordance with
" the specific instructions of the registered medical practitioner ".

In my judgment, it is quite impossible to regard an abortion resulting from
such procedure as one " terminated by a registered medical practitioner ",
for the acts indispensable to termination are in many such cases performed
not by the doctor but by the nurses over a long period of hours after the
doctor last saw the pregnant woman. And, despite the claims of the
Solicitor-General that he sought simply to give the statutory words " their
" plain and ordinary meaning ", he substantially departed from that approach
by submitting that they should be read as meaning " terminated by treatment
" for the termination of pregnancy carried out by a registered medical
" practitioner in accordance with recognised medical practice ". My Lords,
this is redrafting with a vengeance. And even were it permissible, it would
still remain to consider what part the doctor played in the treatment, in
order to ensure that it was not so remote from the termination as to make it
impossible to say in any realistic sense that it was he who terminated the
pregnancy. I am in respectful agreement with Brightman L.J., who said of
the extra-amniotic procedure:

"... it would be a misuse of language ... to describe such a
" treatment for termination of a pregnancy as ' carried out by' a
" registered medical practitioner—however detailed and precise the
" written instructions given by the registered medical practitioner to the
" nurse . . . The true analysis is that the doctor has provided the
" nurse with the means to terminate the pregnancy, not that the doctor
" has terminated the pregnancy ".

It is true that the word " treatment" is to be found in several places in the
Act, and that the phrase " treatment of the termination of pregnancy"
appears both in section 1(3) and in section 3(1), but both are significantly
different from the language of section 1(1). And, had Parliament been
minded to legislate on the lines which the appellants submit was its aim,
the Master of the Rolls demonstrated by reference to several earlier statutes
in the medical field that the Legislature had ready to hand suitable words
which would have rendered unnecessary any such expansive interpretation
as that favoured in the present instance by the Solicitor-General.

My Lords, at the end of the day the appellants were driven to rely on a
submission that, were section 1(1) given its literal meaning, such absurd
consequences would follow that a liberal construction is unavoidable if the
1967 Act is to serve a useful purpose. In the foreground was the submission
that, were a termination of pregnancy embarked upon when (as it turned
out) the woman was not pregnant, the Act would afford no defence to a
doctor prosecuted under the 1861 Act. And it was secondly urged that
he would be equally defenceless even where he personally treated a pregnant
woman throughout if, for some reason, the procedure was interrupted and
the pregnancy not terminated. I have respectfully to say that in my
judgment it is these objections which are themselves absurd. Lawful
termination under the Act predicates the personal services of a doctor
operating in section 1 (3) premises and armed with the opinion of two medical
practitioners. But where termination is nevertheless not achieved, the
appellants invite this House to contemplate the doctor and his nursing staff
being prosecuted under section 58 of the 1861 Act, the charge being, of
course, not the unlawful termination of pregnancy (for ex hypothesi there
was no termination) but one of unlawfully administering a noxious thing or
unlawfully using an instrument with intent to procure miscarriage. And
on that charge unlawfulness has still to be established and the prosecution



12

would assuredly fail. For the circumstances predicated themselves establish
the absence of any mens rea in instituting the abortive treatment, and its
initial lawfulness could not be rendered unlawful either by the discovery
that the woman was not in fact pregnant or by non-completion of the
abortive treatment. Were it otherwise, the unavoidable conclusion is that
doctors and nurses could in such cases be convicted of what in essence would
be the extraordinary crime of attempting to do a lawful act.

My Lords, it was after drafting the foregoing that I happened upon the
following passage in Smith and Hogan's " Criminal Law" (4th edition,
p.346) which I now gratefully adopt, for it could not be more apposite:

"... the legalisation of an abortion must include the steps which
" are taken towards it. Are we really to say that these are criminal
" until the operation is complete, when they are retrospectively
" authorised, or alternatively that they are lawful until the operation is
" discontinued or the woman is discovered not to be pregnant when,
" retrospectively, they become unlawful? When the conditions of the
" Act are otherwise satisfied, it is submitted that [doctor] is not
" unlawfully administering, etc., and that this is so whether the
" pregnancy be actually terminated or not ".

I am in this way fortified in my conclusion that the " absurdities " on
which the Solicitor-General relies are in reality non-existent and that there
is no reason for not giving the specific words of section 1 of the Act their
plain and ordinary meaning. Doing just that, the prostaglandin treatment
presently adopted requires the nursing staff to participate unlawfully in
procedures necessitating their personally performing over a period of several
hours a series of acts calculated to bring about a termination of pregnancy.
This they cannot lawfully do," and in my judgment the Royal College of
Nursing were entitled to a declaration in those terms.

My Lords, I express no view regarding this result, save that I believe it
to be inevitable on the facts of the case, and this despite my awareness that
several thousand extra-amniotic terminations are now performed annually.
If it is sought to render such medical induction lawful, the task must be
performed by Parliament. But under the present law it is a registered
medical practitioner who must terminate pregnancy. I would therefore
affirm the unanimous view of the Court of Appeal and dismiss this appeal.

Lord Keith of Kinkel

MY LORDS,

This appeal is concerned with the question whether section 1(1) of the
Abortion Act 1967 applies, so as to relieve the participants from criminal
liability, to the procedures normally followed in operating a modern
technique for inducing abortion by medical means.

The technique, which has been evolved and become common practice
over the past ten years for the purpose of terminating pregnancy during
the third trimester, is considered in medical circles to involve less risk to
the patient than does surgical intervention. The details of the procedure
have been fully described in the judgments of the courts below. Its main
feature is the introduction via a catheter into the interspace between the
amniotic sac and the wall of the uterus of an abortifacient drug called
prostaglandin. The purpose of this is to induce uterine contractions which
in most cases, but not in all, result in the expulsion of the foetus after a
period of between 18 and 30 hours. The process is assisted by the introduc-
tion into the blood stream, via a cannula inserted in a vein, of another
drug called oxytocin. Responsibility for deciding upon and putting the
procedure into operation rests with a registered medical practitioner who
himself inserts the catheter and the cannula. The attachment of the
catheter and the cannula to a supply of prostaglandin and of oxytocin
respectively, and the initiation and regulation of the flow of these drugs



13

are carried out by a nurse under the written instructions of the doctor, who
is not normally present at those stages. He or a colleague is, however,
available on call throughout.

Section 1(1) of the 1967 Act can operate to relieve a person from guilt
of an offence under the law relating to abortion only " when a pregnancy
" is terminated by a registered medical practitioner". Certain other
conditions must also be satisfied, but no question about these arises in the
present case. The sole issue is whether the words I have quoted cover the
situation where abortion has been brought about as a result of the procedure
under consideration.

The argument for the respondents is, in essence, that the words of the
subsection do not apply because the pregnancy has not been terminated by
any registered medical practitioner, but by the nurse who did the act or
acts which directly resulted in the administration to the pregnant woman
of the abortifacient drugs.

In my opinion this argument involves placing an unduly restricted and
unintended meaning on the words " when a pregnancy is terminated ". It
seems to me that these words, in their context, are not referring to the
mere physical occurrence of termination. The side-note to section 1 is
" Medical termination of pregnancy ". " Termination of pregnancy " is an
expression commonly used, perhaps rather more by medical people than
by laymen, to describe in neutral and unemotive terms the bringing about
of an abortion. So used, it is capable of covering the whole process
designed to lead to that result, and in my view it does so in the present
context. Other provisions of the Act make it clear that termination of
pregnancy is envisaged as being a process of treatment. Section 1(3)
provides that, subject to an exception for cases of emergency, " treatment
" for the termination of pregnancy " must be carried out in a National Health
Service hospital or a place for the time being approved by the Minister.
There are similar references to treatment for the termination of pregnancy
in section 3, which governs the application of the Act to visiting forces.
Then by section 4(1) it is provided that no person shall be under any duty
" to participate in any treatment authorised by this Act to which he has
" a conscientious objection ". This appears clearly to recognise that what
is authorised by section 1(1) in relation to the termination of pregnancy is
a process of treatment leading to that result. Section 5(2) is also of some
importance. It provides that " for the purposes of the law relating to
" abortion, anything done with intent to procure the miscarriage of a
" woman is unlawfully done unless authorised by section 1 of this Act".
This indicates a contemplation that a wide range of acts done when a
pregnancy is terminated under the given conditions are authorised by
section 1, and leads to the inference that, since all that section 1 in terms
authorises is the termination of pregnancy by a registered medical
practitioner, all such acts must be embraced in the termination.

Given that the termination of pregnancy under contemplation in section
1(1) includes the whole process of treatment involved therein, it remains
to consider whether, on the facts of this case, the termination can properly
be regarded as being " by a registered medical practitioner ". In my opinion
this question is to be answered affirmatively. The doctor has responsibility
for the whole process and is in charge of it throughout. It is he who
decides that it is to be carried out. He personally performs essential parts
of it which are such as to necessitate the application of his particular skill.
The nurse's actions are done under his direct written instructions. In the
circumstances I find it impossible to hold that the doctor's role is other
than that of a principal, and I think he would be very surprised to hear
that the nurse was the principal and he himself only an accessory. It is
true that it is the nurse's action which leads directly to the introduction of
abortifacient drugs into the system of the patient, but that action is done
in a ministerial capacity and on the doctor's orders. Even if it were right
to regard the nurse as a principal, it seems to me inevitable that the doctor
should also be so regarded. If both the doctor and the nurse were



14

principals, the provisions of the subsection would be still satisfied, because
the pregnancy would have been terminated by the doctor notwithstanding
that it had also been terminated by the nurse.

I therefore conclude that termination of pregnancy by means of the
procedures under consideration is authorised by the terms of section 1(1).
This conclusion is the more satisfactory as it appears to me to be fully in
accordance with that part of the policy and purpose of the Act which was
directed to securing that socially acceptable abortions should be carried
out under the safest conditions attainable. One may also feel some relief
that it is unnecessary to reach a decision involving that the very large
numbers of medical practitioners and others who have participated in the
relevant procedures over several years past should now be revealed as
guilty of criminal offences.

My Lords, for these reasons I would allow the appeal, and restore the
declarations granted by Woolf J.

Lord Roskill

my lords,

The long title of the Abortion Act, 1967, (" the 1967 Act ") is " An Act
" to amend and clarify the law relating to the termination of pregnancy
by registered medical practitioners". The respondents accepted before
your Lordships' House that the 1967 Act had a social purpose, namely the
making of abortions available more freely and without infringement of
the criminal law but subject always to the conditions of that Act being
satisfied. But Parliament sought to achieve that admitted social purpose
not as in the case of some social reforms by expressly creating some positive
entitlement on the part of members of the public to that which the statute
sought to achieve but by enacting in section 1 (1) that "a person" (not,
be it noted, simply " a registered medical practitioner ") should " not be
" guilty of an offence under the law relating to abortion " provided that
certain other conditions were satisfied. " The law relating to abortion "
was defined in section 6 as meaning " sections 58 and 59 of the Offences
" against the Person Act 1861, and any rule of law relating to the procure-
" ment of abortion . . . ". Thus the scheme of the 1967 Act was to
exempt from the sanctions of the criminal law imposed principally by the
Offences against the Person Act 1861 ("the 1861 Act") upon those who
carried out or attempted to carry out abortions those, but only those, who
carried them out in a manner which satisfied all the requirements of the
1967 Act.

My Lords, the question which now requires determination by your
Lordships' House arises because of the development by the medical
profession of the termination of pregnancy by the extra-amniotic process,
a process not developed nor indeed in use when the 1967 Act became law.
The details of the extra-amniotic process and its development will be found
in the " Agreed Statement as to Clinical Background " which the parties
conveniently made available to the courts below and in the agreed addition
to that statement which was further agreed by the parties for the purposes
of the instant appeal.

In his judgment in the Court of Appeal Brightman L.J. analysed the
successive steps in the case of extra-amniotic medical induction for the
termination of pregnancies under nine steps and on the basis of what was
called " maximum nurse participation " in that process and further detailed
under each of those nine steps those which required action by the doctor
and those which required action only by the nurse. I gratefully adopt,
without repetition, what the learned Lord Justice there states. It will be
observed that of those nine steps the doctor is only positively involved in
performing two, the first and the fourth. The remainder are all performed
by the nurse. The first step in which the doctor is personally involved is
the insertion of the catheter into the womb. The fourth is the insertion



15

of the cannula into the vein but no fluid is then passed by the doctor
through the cannula. Thereafter every positive step is taken by the nurse
up to and including the ninth step which occurs when the nurse discontinues
the treatment either because the foetus has been discharged or because
the allotted period has elapsed and the operation has failed. But it must
be emphasized that every step taken by the nurse will be in accordance
with the instructions of the doctor and those will be written instructions
in all important respects. Though the insertion of the catheter into the
womb by the doctor can have an abortifacient effect, the intention of the
entirety of the process is that the abortion shall be achieved by the
administration of the fluids by the nurse.

On those facts, which I have summarized—they will be found more fully
detailed in the judgments of the courts below—the crucial issue is whether
" a pregnancy is terminated by a registered medical practitioner " assuming,
as of course I do for present purposes, that the other prerequisites of
section 1 (1) of the 1967 Act are also satisfied. If a narrow meaning is
given to the phrase I have just quoted, then it is the nurse and not the
doctor who terminates the pregnancy. If that be right the doctor and the
nurse are each guilty of a separate offence against the 1861 Act, the nurse
because she is carrying out an abortion when she is not a doctor and the
doctor because he is attempting to carry out an abortion when he engages
in the first step which is not authorised by the 1967 Act. In addition, he
is aiding and abetting the nurse's offence and both, and maybe others as
well, are guilty of conspiracy to infringe the 1861 Act. This is the position
which the respondents feared might arise and which led them to institute
the present proceedings on behalf of the nursing profession in order that
the question whether or not their profession are, in these circumstances,
entitled to the protection of the 1967 Act might be finally determined. If
the construction placed upon the 1967 Act by the majority of the Court
of Appeal (Lord Denning M.R. and Sir George Baker) is correct, then the
respondents' fears are indeed well-founded.

The appellants, on the other hand, contend for a wider construction of
the 1967 Act. It was this wider construction which found favour both
with Woolf J. and with Brightman L.J. It was this view of the law for
which the appellants had contended, under legal advice, in a letter dated
25th February 1980, the circulation of which led to the institution of the
present proceedings. The difference of view between Woolf J. and
Brightman L.J. arose only upon the facts since the learned Lord Justice
felt that the actual termination of the pregnancy by the nurse could not
legitimately be described as " termination by a registered medical
practitioner ". The learned Lord Justice summarized his view by saying
that " the doctor has provided the nurse with the means to terminate the
" pregnancy, not that the doctor has terminated the pregnancy ".

Learned counsel for the respondents did not shrink from the anomalies
which would necessarily flow from the acceptance of his submission and
the construction adopted by the majority of the Court of Appeal. There
was, he said, only a limited qualification engrafted upon an otherwise
unchanged criminal law and in 1967 Parliament had legislated by reference
to the surgical techniques of abortion as they then were and not for other
techniques of abortion as they might subsequently be evolved. Pressed
to say whether a new method must not be adopted which involved less
risk to the patient, he replied that any such new method would only be
lawful if the doctor were present throughout, a view which would seemingly
make unrealistic demands upon medical manpower since no one suggested
that each of the seven steps taken by the nurse, to which I have already
referred, was not well within the capacity of someone possessed of the
qualifications and experience which such a nurse would necessarily possess.

My Lords, I have read and re-read the 1967 Act to see if I can discern
in its provisions any consistent pattern in the use of the phrase " a
" pregnancy is terminated " or " termination of a pregnancy " on the one
hand and " treatment for the termination of a pregnancy " on the other
hand. One finds the former phrase in section 1(1) and (l)(a), the latter



16

in section 1(3), the former in section 1(4), the latter in section 2(1)(b),
and again in section 3(l)(a) and (c). Most important to my mind is
section 4 which is the conscientious objection section. This section in
two places refers to " participate in treatment" in the context of
conscientious objection. If one construes section 4 in conjunction with
section 1(1), as surely one should do in order to determine to what it is
that conscientious objection is permitted, it seems to me that section 4
strongly supports the wider construction of section 1(1). It was suggested
that acceptance of the appellants' submission involved re-writing that
subsection so as to add words which are not to be found in the language
of the subsection. My Lords, with great respect to that submission, I do
not agree. If one construes the words " when a pregnancy is terminated
" by a registered medical practitioner" in section 1(1) as embracing the
case where the " treatment for the termination of a pregnancy is carried out
" under the control of a doctor in accordance with ordinary current medical
" practice" I think one is reading " termination of pregnancy" and
" treatment for termination of pregnancy " as virtually synonymous and as
I think Parliament must have intended they should be read. Such a
construction avoids a number of anomalies as, for example, where there is
no pregnancy or where the extra-amniotic process fails to achieve its objective
within the normal limits of time set for its operation. This is, I think, the
view which appealed to Woolf J. and to Brightman LJ. and I find myself
in respectful agreement with that view. But with respect I am unable to
share the learned Lord Justice's view on the facts. I think that the successive
steps taken by a nurse in carrying out the extra-amniotic process are fully
protected provided that the entirety of the treatment for the termination of
the pregnancy and her participation in it is at all times under the control
of the doctor even though the doctor is not present throughout the
entirety of the treatment.

My Lords, I have reached this conclusion simply as a matter of the
construction of the 1967 Act. But as I have already pointed out, Parliament
has achieved whatever reforms the 1967 Act did achieve by engrafting
qualifications upon the criminal law principally as enacted in the 1861
Act. If the respondents' contentions and the views of the majority of the
Court of Appeal are correct and one envisages a doctor and a nurse on
trial on indictment for offences or attempted offences against the 1861
Act, the trial judge would be bound at least to tell the jury that if they
found the facts as Brightman L.J. described them in his judgment they
might find it difficult to see what verdicts other than verdicts of guilty
they could properly return even though such a trial judge might properly
shrink from telling them that it was positively their duty in those circum-
stances to convict. Either direction would, I apprehend, be given with
reluctance and acted upon, if at all, with dismay.

My Lords, it was common ground that if the appeal succeeded the proper
declaration was that granted to the appellants by Woolf J. Since in my
opinion the appeal should succeed it follows that I would allow the appeal
and grant the same declaration as was granted by that learned judge.

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