The public is being misled about pre-signed abortion certificates

Opponents of abortion must be overjoyed. Health secretary Andrew Lansley has instigated a mass investigation of abortion providers by the Care Quality Commission. On 22 March, CQC inspectors visited 250 clinics. Their report, according to BBC reports, suggests that around 20 per cent didn't comply with the law or regulations.

Lansley said he was shocked to learn that 'some clinics '¦ may be allowing doctors to pre-sign abortion certificates. This is contrary to the spirit and the letter of the Abortion Act.'

The health secretary said pre-signing certificates '“ where the doctor does not know the woman in respect of whom it is issued '“ was illegal and that he was 'not prepared to tolerate a failure to respect the law'.

It's unusual to see a health secretary fomenting a climate of mistrust and suspicion by trumpeting as yet unsubstantiated claims that some clinics '“ and, by implication, individual doctors or nurses '“ are breaking the law.

What the law says

So what does the law say? Section 1(1) of the Abortion Act 1967 (as amended) decriminalises abortion, provided that two doctors are of the good faith opinion that a pregnant woman meets one of four statutory criteria set out in sub-sections (a) to (d) (see box).

Section 1(2) provides that in determining whether sub-sections (1)(a) or (b) apply, 'account may be taken of the pregnant woman's actual or reasonably foreseeable environment'. Section 1(4) says that only one doctor need give an opinion, where termination is immediately necessary to save the woman's life or prevent grave permanent injury to her health.

Section 2 empowers the minister of health to make regulations. If a person 'wilfully' breaches or fails to comply with a regulation, they are liable on summary conviction to a fine not exceeding level 5 on the standard scale (£5,000).

Regulation 3 of the Abortion Regulations 1991 (as amended in 2002) requires the doctors' opinion to be formally certified before the abortion is performed; or 24 hours afterwards where the woman is at risk of death or grave permanent injury. A prescribed form of the certificate '“ a HSA1 '“ states that the doctor may not have seen or examined the woman in question.

No illegality

It's clear that under the current regime doctors do not have to see or examine the woman personally: they can rely on an account of her medical history and circumstances taken by another member of the clinical team (usually a nurse). So is pre-signing of certificates illegal, as Mr Lansley claims? It is hard to see why. It is also hard to see why the certificate is a safeguard for the woman; rather, it shields those performing the procedure.

If doctors work off-site much of the time, pre-signing a batch of certificates seems a sensible precaution. Signing an otherwise blank certificate is not illegal. And it would be wrong for a woman up against statutory time limits to find her abortion being delayed, or even denied, because of logistical difficulties in getting the necessary paperwork signed off, once two doctors give their good faith opinion.

Assume a hypothetical scenario where a woman comes into a clinic, and is assessed by a nurse, who considers that the woman meets one of the statutory criteria for a lawful abortion. The nurse rings two doctors, both of whom are off-site, with the information. Each doctor is prepared to give a good faith opinion that the criterion is met. Each authorises the nurse to complete the rest of the form, which they have pre-signed, on their behalf. How is this illegal?

Mr Lansley seems unclear about how the law works. Ironically, by highlighting the current system of abortion regulation, he has set the scene for a more fundamental debate about why such bureaucracy is needed.