Greater Glasgow Health Board v Doogan & Anor [2014] UKSC 68

Two Roman Catholic midwives working as Labour Ward Co-ordinators claimed their conscientious objection under section 4 of the Abortion Act 1967 extended to supervising, delegating and supporting staff involved in terminations. The Supreme Court held 'participation' means hands-on involvement only, allowing the Health Board's appeal.

Facts

The petitioners, Miss Doogan and Mrs Wood, were experienced midwives employed at the Southern General Hospital in Glasgow as Labour Ward Co-ordinators (band 7). Both are practising Roman Catholics who believe human life is sacred from conception and that any involvement in termination of pregnancy renders them culpable accomplices. Each had notified their employer, Greater Glasgow Health Board, of their conscientious objection when they began working in the Labour Ward.

Following a 2004 reorganisation of Glasgow maternity services, an increased number of medical terminations (on grounds (b), (c) and (d) of section 1(1) of the Abortion Act 1967, and emergencies under section 1(4)) were carried out in the Labour Ward – approximately 60 per year against 6,000 births. Terminations under ground (a) were performed elsewhere in the Gynaecology Ward. The petitioners became concerned that their objections could no longer be accommodated by ‘working around’ them. Following an unsuccessful grievance procedure, they brought judicial review proceedings. The Lord Ordinary refused their petition; the Extra Division of the Inner House granted a broad declarator recognising their right to refuse to delegate, supervise or support staff providing care throughout the termination process.

Issues

The sole issue was the proper construction of section 4(1) of the Abortion Act 1967, specifically the meaning of the phrase ‘to participate in any treatment authorised by this Act to which he has a conscientious objection’. The court had to determine the scope of both ‘treatment authorised by this Act’ and ‘participate’.

Arguments

The Royal College of Midwives (interveners)

Argued for the narrowest construction: ‘treatment authorised’ was limited to the treatment causing termination itself, namely administration of the drugs inducing premature labour, not care during labour, delivery, or aftercare.

The petitioners

Argued for the broadest construction: conscience is an internal, subjective matter and their objection extended to any involvement with patients undergoing termination, including receiving telephone bookings, admission, assigning midwives, and supervising staff before and after the procedure.

The appellant Health Board

Argued for an intermediate position: ‘treatment authorised’ begins with the administration of drugs and ends with expulsion of the foetus, placenta and membrane; ‘participate’ means direct hands-on involvement, not administrative, managerial or supervisory tasks.

Judgment

Lady Hale (with whom Lord Wilson, Lord Reed, Lord Hughes and Lord Hodge agreed) allowed the appeal. She approached the question as one of pure statutory construction, setting aside as distractions both the Article 9 ECHR arguments (which she said would depend on context and could be addressed through the Human Rights Act and Equality Act 2010 in the sisted employment tribunal proceedings) and the wider policy consequences (which the court lacked evidence to assess).

Applying the reasoning of the House of Lords in Royal College of Nursing v DHSS [1981] AC 800 and R v Salford Health Authority, Ex p Janaway [1989] AC 537, Lady Hale held that ‘treatment authorised by this Act’ covers the whole course of medical treatment bringing about the termination. This begins with administration of the drugs inducing labour and normally ends with delivery of the foetus, placenta and membrane. It includes connected medical and nursing care during labour – monitoring, pain relief, advice and support, assisted delivery, and disposal of the products of conception – together with specific aftercare required as a result of the process (e.g. repair of an episiotomy). Ordinary nursing and pastoral care of a patient who has just given birth was not unlawful before the Act and is not covered.

On the meaning of ‘participate’, Lady Hale preferred the narrow construction. Parliament’s focus in section 4 was on the acts made lawful by section 1, not the ‘host of ancillary, administrative and managerial tasks’ associated with them. Managers, administrators, caterers and cleaners all facilitate the process but are not participants. ‘Participate’ means taking part in a ‘hands-on’ capacity.

Testing this against the 13 agreed tasks of the Labour Ward Co-ordinator, Lady Hale concluded that management of resources, taking bookings, providing handovers, allocating staff, paging anaesthetists, and passing on the treating midwife’s judgments were not covered by the conscience clause. Providing direct care in emergencies, supporting instrumental delivery, personally providing break relief on a termination, or forming clinical judgments about a termination patient would be covered. She also confirmed that a conscientious objector is under a professional obligation to refer patients to a colleague who does not share the objection.

Implications

The decision establishes an authoritative narrow interpretation of section 4(1) of the Abortion Act 1967. ‘Treatment authorised by this Act’ is the whole course of treatment bringing about the termination, but ‘participation’ is confined to direct, hands-on involvement in that treatment. Administrative, managerial and supervisory functions – even where they facilitate abortion services – fall outside the statutory conscience clause.

The judgment matters to healthcare professionals, particularly midwives in senior coordinating roles, and to NHS employers seeking to structure abortion services while respecting religious and moral objections. It clarifies that senior clinical staff cannot rely on section 4 to refuse the wider organisational duties of their roles, though they retain the conscience protection when personally providing hands-on care.

Importantly, Lady Hale emphasised that the narrow reading of section 4 does not exhaust an objecting employee’s protections. State employers must still respect Article 9 ECHR rights, and all employers must avoid unjustified indirect discrimination under the Equality Act 2010, potentially requiring reasonable adjustments. Those questions are context specific and better suited to employment tribunal proceedings than judicial review.

The court expressly declined to determine the broader consequences for abortion service delivery, acknowledging the competing concerns raised by the Royal College of Midwives and British Pregnancy Advisory Service on the one hand, and by objecting clinicians on the other. The decision therefore resolves the statutory question but leaves practical accommodation to employment law and individual workplace arrangements. Lady Hale also invited further submissions on what, if any, order should replace the Inner House’s declarator.

Verdict: The Supreme Court unanimously allowed the appeal by Greater Glasgow Health Board and set aside the declarator granted by the Inner House. The right of conscientious objection under section 4(1) of the Abortion Act 1967 does not extend to the delegation, supervision or support of staff providing care to patients undergoing termination of pregnancy; it is confined to direct, hands-on participation in the treatment. Further submissions were invited on any replacement order.

Source: Greater Glasgow Health Board v Doogan & Anor [2014] UKSC 68