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Abortions at home 'contrary to the dictionary definition of treatment', rules High Court

15 February 2011

The High Court has thrown out an application to legalise abortions at home.

Justice Supperstone refused an application by the British Pregnancy Advisory Service (bpas) to interpret the Abortion Act 1967 as permitting some women to take pills at home instead of in hospital.

“Termination may or may not be the consequence of the prescription,” said Supperstone J. “A woman may decide not to proceed to take the drug.”

bpas argued there was scope within the wording of the 1967 Act to relax requirements because of developments in medicine, with early abortions now administered by swallowing two pills as opposed to surgery.

Landmark Chambers’ Nathalie Lieven QC, acting for the claimant, focused her argument on the requirements of part three, section one of the Act, which states: “Any treatment for the termination of pregnancy must be carried out in a hospital… or in a place approved for the purposes of this section by the secretary of state.”

Lieven said that common law requirements to consider the original ‘mischief’ of the legislators, as well as to interpret statutes from a modern viewpoint, meant this requirement could be fulfilled now that surgery is not the only option for termination.

But, delivering judgment in BPAS v Secretary of State for Health [2011] EWHC 235 (Admin), Supperstone J said the claimant’s team, instructed by Reynolds Porter Chamberlain, had got the dictionary definition of ‘treatment’ wrong.

“In my view,” said Supperstone J, “the claimant’s submission runs counter to the natural and ordinary meaning of the word ‘treatment’. The Oxford English Dictionary defines ‘treatment’, in the medical context, as ‘management in the application of remedies; medical or surgical application or service’.

“If the drugs or tablets were prescribed by the registered medical practitioner and not taken by the woman, the opportunity for treatment would have been available but it would not have been taken.

“The aim of the treatment, whether medical or surgical, must be the termination of a pregnancy. Termination is the consequence of the treatment; it is not itself treatment.”

Although “disappointed” by the ruling, bpas said it welcomed the judge’s comments that the secretary of state does have the power to react to “changes in medical science” and to “approve a wider range of place, including potentially the home, and the conditions on which such approval may be given relating to the particular medicine and the manner of its administration or use”.

bpas is a charity offering counselling for up to 55,000 women every year, as well as offering NHS and privately funded abortions. Its chief executive, Ann Furedi, said: “If the law as it stands cannot allow what is safe, right and proper, then it is not fit for purpose and must be changed to reflect modern medical practice.

“But if the law as it stands allows the secretary of state to approve a woman’s home as a ‘class of place’ for abortion then this is what he must do. We look forward to discussing with ministers and officials how quickly this can happen.”

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