Janaway, R (on the application of) v Salford Area Health Authority [1988] UKHL 17

House of Lords
Between
Janaway, R (on the application of)AppellantSalford Area Health AuthorityRespondent
Before
Lord Keith of KinkelLord Brandon of OakbrookLord GriffithsLord Goff of ChieveleyLord LowryDate 1 February 1988

LORD BRANDON OF OAKBROOK

My Lords,The appellant, Mrs. Janaway ("the applicant"), took up employment with the respondent health authority on 25 3une 1984. She was engaged as a secretary/receptionist at Irlam Health Centre, Working for a Dr. Barooah. On 11 September 1984 she was asked by Dr. Barooah to type a letter which had to do with referring a pregnant patient for an appointment with a consultant with a View to the latter forming an opinion as to whether the pregnancy should be terminated under the Abortion Act 1967. The applicant, & Roman Catholic holding the belief that abortion is morally wrong, refused to type the letter, which was eventually written by hand by another doctor at the health centre. On 31 October 1984 the applicant was interviewed by a personnel officer from the authority and told him that she felt entitled to refuse to type the letter, and any others concerned with termination of pregnancy, by virtue of the conscientious objection provision contained In section 4(1) of the Act of 1967, to which 1 shall refer later. On 7 November 1984 the personnel officer wrote to the applicant stating that her refusal to type correspondence of the kind in question amounted to a breach of the authority's disciplinary rules as being "unjustified refusal of a lawful and reasonable instruction" and asking for a firm assurance that she would in future carry cut any such instructions. The applicant sent in reply a letter dated 12 November 1984 which concluded:
"except in so far as I stand by the protection afforded by section 4(1) of the Abortion Act [1967] 1 confirm that 1 will continue, as I have done in the past, to carry out my contractual duties .is detailed in my job description."
On 27 November 1984 the applicant had a meeting, at which she reaffirmed her position, with the personnel officer and the community services administrator. On 30 November the latter wrote to her saying that legal advice had been obtained to the effect that section 4(1) of the Act of 1967 did not apply to her refusal, and that her employment had been terminated from 27 November on grounds of misconduct. The applicant appealed against her dismissal to the authority's appeal tribunal, but her appeal was dismissed, and the authority formally ratified the decision on 6 February 1985.On 17 June the applicant applied, with leave, for judicial review in the shape of an order of certiorari to quash the authority's decision of 6 February 1985 and a declaration that, by reason of her conscientious objection to typing correspondence of the kind in question, she was not under any duty to carry out such work.The application was dismissed by Nolan 3. on 12 February 1985, and his decision was affirmed by the Court of Appeal (Slade, Balcombe and Stocker L.JJ.) [1988] 2 W.L.R. 442 on 18 December 1987. The applicant now appeals, with leave granted by the Court of Appeal, to your Lordships' House.The relevant provisions of the Act of 1967 are these:
"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 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...
....(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........4(1) Subject to subsection (2) of this section, 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: Provided that in any legal proceedings the burden of proof of conscientious objection shall rest on the person claiming to rely on it.(2) Nothing in subsection (1) of this section shall affect any duty to participate in treatment which is necessary to save the life or to prevent grave permanent injury to the physical or mental health of a pregnant woman.......5(1) Nothing in this Act shall affect the provisions of the Infant Life (Preservation) Act 1929 (protecting the life of the viable foetus).(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. 6. In this Act, the following expressions have meanings hereby assigned to them: 'the law relating to abortion' means sections 58 and 59 of the Offences against the Person Act 1861, and any rule of law relating to the procurement of abortion;"The applicant claims the protection of section 4 (1). The issue in the case turns on the true construction of the words in that subsection "participate in any treatment authorised by this Act." For the applicant it is maintained that the words cover taking part in any arrangements preliminary to and intended to bring about medical or surgical measures aimed at terminating a pregnancy, including the typing of letters referring a patient to a consultant. The health authority argues that the meaning of the words is limited to taking part in the actual procedures undertaken at the hospital or other approved place with a view to the termination of a pregnancy.The argument for the applicant proceeds on the lines that the acts attracting the protection afforded by section 4(1) are intended to be coextensive with those which are authorised by section 1(1) and which in the absence of that provision would be criminal. The criminal law about accessories treats one who aids and abets, counsels or procures a criminal act as liable to the same extent as a principal actor. In the absence of section 1(1) the applicant by typing a letter of referral would be counselling or procuring an abortion, or at least helping to do so, and subject to a possible defence on the principle of Rex v. Bourne [1939] 1 K.B. 687 would be criminally liable. Therefore any requirement to type such a letter is relieved, in the face of a conscientious objection, by section 4(1).The majority of the Court of Appeal (Slade and Stocker L.JJ.) accepted the main thrust of the applicant's argument, to the effect that section 1(1) and section 4(1) are coextensive, but decided against her on the ground that her intention in typing a letter of referral would not be to assist in procuring an abortion but merely to carry out the obligations of her employment. In their view the typing of such a letter by the applicant would not be a criminal offence in the absence of section 1(1).Nolan J., however, and Balcombe L.J. in the Court of Appeal rejected the applicant's main argument. They accepted the argument for the health authority that on a proper construction the word "participate" in section 4(1) did not import the whole concept of principal and accessory residing in the criminal law, but in its ordinary and natural meaning referred to actually taking part in treatment administered in a hospital or other approved place in accordance with section 1(3), for the purpose of terminating a pregnancy.In my opinion Nolan J. and Balcombe L.J. were right to reach the conclusion they did. I agree entirely with their view about the natural meaning of the word "participate" in this context. Although the word is commonly used to describe the activities of accessories in the criminal law field, it is not a term of art there. It is in any event not being used in a criminal context in section 4(1). Ex hypothesi treatment for termination of a pregnancy under section 1 is not criminal. I do not consider that Parliament can reasonably have intended by its use to import ail the technicalities of the criminal law about principal and accessory, which can on occasion raise very nice questions about whether someone is guilty as an accessory. Such niceties would be very difficult of solution for an ordinary health authority. If Parliament had intended the result contended for by the applicant, it could have procured it very clearly and easily by referring to participation "in anything authorised by this Act" instead of "in any treatment [so] authorised." It is to be observed that section 4 appears to represent something of a compromise in relation to conscientious objection. One who believes all abortion to be morally wrong would conscientiously object even to such treatment as is mentioned in subsection (2), yet the subsection would not allow the objection to receive effect.The applicant's argument placed some reliance on a passage in the speech of Lord Roskill in Royal College of Nursing of the United Kingdom v. Department of Health and Social Security [1981] AC 800 , 837 - 838:
"My Lords, I have read and re-read the Act of 1967 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 in section 1(3), the former in section 1(4), the latter in section 2(1)( b ), and again in section 3(1)( 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 rewriting 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."
That case was concerned with a particular process of treatment for the termination of pregnancy carried out in hospital, important parts of which were performed not by a registered medical practitioner but by a nurse acting under his instructions. The issue was whether the actions of the nurse were unlawful, and it was held that they were not, on the ground that what was authorised by the Act was the whole medical process resulting in termination of pregnancy and that the process was carried out by a registered medical practitioner when that was done under his supervision and in accordance with his instructions, notwithstanding that certain parts of the process were carried out by others. The House was not concerned with the meaning of the word "participate" in section 4(1) in relation to anything other than the actual medical process carried out in the hospital, and then only indirectly. So Lord Roskill's words cannot be read as having any bearing on the decision of the present case.A certain amount of argument was addressed to the Abortion Regulations 1968(S.I.. 1968 No. 390), which inter alia set out the form of certificate, known as "the green form," to be signed by two registered medical practitioners in pursuance of section l(l)(a) of the Act, and to the position in relation to section 4(1) of practitioners who might be required to sign such a certificate. The regulations do not appear to contemplate that the signing of the certificate would form part of treatment for the termination of pregnancy, since regulation 3(2) provides:
"Any certificate of an opinion referred to in section 1(1) of the Act shall be given before the commencement of the treatment for the termination of the pregnancy to which it relates."
It does not appear whether or not there are any circumstances under which a doctor might be under any legal duty to sign a green form, so as to place in difficulties one who had a conscientious objection to doing so. The fact that during the 20 years that the Act of 1967 has been in force no problem seems to have surfaced in this connection may indicate that in practice none exists. So I do not think it appropriate to express any opinion on the matter.In view of the conclusion I have reached upon the main plank of the applicant's argument, it is unnecessary to deal with the limited ground upon which the majority of the Court of Appeal decided against her. It should not, however, be taken that 1 would necessarily have agreed with them had the issue been a live one.My Lords,for these reasons I would dismiss the appeal.

LORD BRANDON OF OAKBROOK

My Lords,For the reasons given by my noble and learned friend Lord Keith of Kinkel I would dismiss the appeal.

LORD GRIFFITHS

My Lords,I have had the advantage of reading the speech by Lord Keith of Kinkel and for the reasons he gives I would dismiss this appeal.

LORD GOFF OF CHIEVELEY

My Lords,For the reasons given by my noble and learned friend Lord Keith of Kinkel I would dismiss the appeal.

LORD LOWRY

My Lords,I have had the advantage of reading in draft the speech of my noble and learned friend Lord Keith of Kinkel. I entirely agree with it and, for the reasons which he gives, I, too, would dismiss the appeal.I would only add that, if I had once reached the stage of accepting to the same extent as the majority in the Court of Appeal the applicant's argument (which was based on a fictitious assumption of criminality on the part of the referring doctor), I would then, in the light of the authorities, have had to think very carefully before rejecting the appeal.