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Response to RCOG draft guidance on The Care of Women Requesting Induced Abortion (2011)


David A. Jones responds on behalf of the Anscombe Bioethics Centre on 25 February 2011 to the Royal College of Obstetricians and Gynaecologists' (RCOG) draft guidance on The Care of Women Requesting Induced Abortion.

Policy base evidence: the draft RCOG guidance on abortion



Despite the acknowledged fact that abortion is a very common procedure which affects many women, their families, and society as a whole, and which has a legal, ethical and public policy context, the guidance has been developed in a such a manner to exclude almost all voices except those actually involved in conducting abortions. It is only by limiting the conversation to a very narrow and well disciplined set of interlocutors that all can avoid the elephant in the room, or should we say in the womb. The following article looks at how the RCOG guidance was developed and examines two of its recommendations.

Process of development and consultation



The Code sets out seven criteria for open and effective consultation (BERR 2008:4):

Criterion 1. When to consult: Formal consultation should take place at a stage when there is scope to influence the policy outcome.

Criterion 2. Duration of consultation exercises: Consultations should normally last for at least 12 weeks with consideration given to longer timescales where feasible and sensible.

Criterion 3. Clarity of scope and impact: Consultation documents should be clear about the consultation process, what is being proposed, the scope to influence and the expected costs and benefits of the proposals.

Criterion 4. Accessibility of consultation exercises: Consultation exercises should be designed to be accessible to, and clearly targeted at, those people the exercise is intended to reach.



Criterion 6. Responsiveness of consultation exercises: Consultation responses should be analysed carefully and clear feedback should be provided to participants following the consultation.

Criterion 7. Capacity to consult: Officials running consultations should seek guidance in how to run an effective consultation exercise and share what they have learned from the experience.


These criteria should be reproduced in all government consultation documents. This code is only binding on government departments, not arms-length bodies, professional organisations or other independent agencies. Nevertheless, the criteria provide a touchstone for best practice in consultation against which organisations would do well to measure themselves.

Effective consultation is not only a matter of open (and hence more ethical) policy making but is also a means to test policy against criticism. Opaque processes which are difficult for the professional and academic community to engage with, let alone the public, and perfunctory consultations at a stage where there is little scope to affect the outcome, insulate the exercise from critical comment and hence weaken the quality of the final output. If evidence is not subject to rigorous independent critical review then its value remains untested and hence its conclusions are the less reliable.

The virtue of openness in public life, as enshrined in the Nolan Principles, also explains the role of lay participation in governance of public bodies and the regulation of medicine. The best exemplar of this practice is the General Medical Council but it has relevance to all medical bodies especially where their guidelines are likely to influence public policy. Lay participation may bring valuable experience of service users into the discussion. It also provides an important check and balance against the interests, insularity and defensiveness of professional organisations. It is not only government that requires openness.

Francoise Baylis in an illuminating article has demonstrated how this consultation process can be subverted where it is undertaken with a view to obtaining a particular result. Her paper is an indictment of a particular consultation of the Human Fertilisation and Embryology Authority and its conclusion is worth quoting in full.

(Baylis 2009: 59 quoting Montpetit 2003:97)

A similar criticism could fairly be levelled against the Royal College of Obstetricians and Gynaecologists (RCOG) in the development of its guidance on The Care of Women requesting Induced Abortion. Rather than being open to evidence and criticism from a wide range of participants, the level of consultation has been narrow and perfunctory.

In the first place the committee clearly excluded any representation from those who have fundamental objections to abortion. It seems to have been selected to represent only those with a prior commitment to delivering and indeed extending the provision of abortion. The committee included representatives from Marie Stopes International and the British Pregnancy Advisory Service. It did not include any members of the RCOG who were not involved with abortion provision.





In the circumstances, it is not surprising that the Anscombe Bioethics Centre, like many other interested parties, only came across the consultation when there were but two days remaining: the Centre was simply unable to respond within this timeframe. It was only following a question in parliament (Hansard 2011) that the consultation was extended, and then only by a period of one week! This clearly limits the quality of criticism that can be brought to bear on a report of 116 pages with 417 references.





The ethics of abortion



Despite the title of chapter 3, the content is in fact dominated by discussion of law and of Codes of Practice with relatively little discussion of the ethical issues as such. The conception of ethics here seems to be rule-based rather than grounded in an understanding of the principles, virtues and goods of human life and the requirements of justice. Most extraordinary of all, there is no virtually no discussion of the issue that makes abortion controversial and which alone explains the diverse laws, prohibitions and restrictions on abortion provision: the status of the unborn child.



Abortion is ethically problematic and is regarded by many (including but not only Catholics and other religious believers) as unjust because it destroys the unborn human infant. That this is the key issue in relation to the ethics of abortion is known by any GCSE level school child. It is not an obscure point. The issue continues to engage the philosophy and theology journals and to be the subject of extended discussion in scholarly monographs (for example Jones (2004), Coope (2006)). It is utterly inexplicable that it should be completely omitted from a serious discussion of the ethics of abortion.



The guidance thus begs the central ethical issue in the practice of abortion by failing even to acknowledge the duties that might arise as a result of the presence of another human life. There are a number of philosophers who have sought to justify abortion, but they have at least put forward explicit arguments which can then be examined and criticised, and such arguments typically do not attempt to justify all abortions but are more limited in scope. The argument over the status of the unborn has implications not only for the practice of abortion per se but also for issues such as conscientious objection or feticide, which are discussed by the guidance. If the guidance does not acknowledge the key issue in public, political, and academic debate over the ethics of abortion then it cannot evaluate the invocation of conscientious objection in this context, nor can it evaluate the ethics of deliberate feticide.

The remainder of this article will consider two of the RCOG recommendations that bear directly on ethics.

Recommendation 7. Professionals who are ethically opposed to abortion have a duty of care to refer onward in a timely manner women requesting abortion.

It should immediately be noticed that this recommendation involves ethical questions which are not settled by empirical observation but which require reflection on the nature of ethical principles, human rights and the common good.

[your]

A doctor could respect a patient fully but not think that abortion would be beneficial (and hence medically indicated) in her particular case, or, some may think, in any case. The fact that a practice is legal and is funded by the NHS is not sufficient to require a doctor to refer where he or she does not think this treatment would be beneficial. This is made clear in the GMC guidance on consent:

If the patient asks for a treatment that the doctor considers would not be of overall benefit to them, the doctor should discuss the issues with the patient and explore the reasons for their request. If, after discussion, the doctor still considers that the treatment would not be of overall benefit to the patient, they do not have to provide the treatment. But they should explain their reasons to the patient, and explain any other options that are available, including the option to seek a second opinion. (GMC 1998: 5(d))

This duty does not extend to finding a doctor who is known to take a different view e.g. of homeopathy or male circumcision for non-medical reasons. It is enough that the doctor informs the patient of his or her right to a second opinion. The guidance on Personal Beliefs and medical practice [the patient]







The same paucity of ethical discussion is found in another of the RCOGs recommendations, in relation to the deliberate killing of the viable unborn infant.

Recommendation 64. Feticide should be performed before medical abortion after 21 weeks and 6 days gestation to ensure that there is no risk of a live birth.

beneficial emotional, ethical














References

A, B and C v Ireland. ECHR Application No. 25579/05
http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=878721&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 (consulted 22 February 2011)

Kennedy Inst Ethics J. Mar;19(1):41-62

Department for Business, Enterprise and Regulatory Reform (BERR) 2008. HM Government Code of Practice on Consultation. London: Crown copyright. http://www.berr.gov.uk/files/file47158.pdf (consulted 22 February 2011)

American Journal of Obstetrics & Gynecology September 2008;199(3):232.e1-232.e3.

Am J Obstet Gynecol 2009;201:560.e1-6.

Coope, CM. 2006. Worth and Welfare in the Controversy over Abortion. Basingstoke: Palgrave Macmillan.

Contraception

New Law Journal 155 NLJ 1624 (28 October 2005).

General Medical Council 1998. Consent: patients and doctors making decisions together. London: GMC.

General Medical Council 2008. Personal Beliefs and medical practice. Supplementary guidance. London: GMC.

Journal of Medical Ethics Oct;35(10):599-602.

Bioethics

European Human Rights Law Review Issue 6; 564.

J Eval Clin Pract. 2010 Apr;16(2):344-50.

Jones, DA. 2004. The Soul of the Embryo: An enquiry into the status of the human embryo in the Christian tradition. London: Continuum.

Hansard, 17 February 2011 Commons Debates: Business of the House http://www.publications.parliament.uk/pa/cm/cmtoday/cmdebate/04.htm (consulted 22 February 2011)

Canadian Public Policy

J Bioeth Inq