Abortion Issues in Midwifery

This topic has been chosen to examine in detail the impact of law and ethics upon nursing practice and midwifery, including the ethical dilemmas that face nurses and midwives on a day-to-day basis. It is thereby demonstrated that despite the governance of health professional practice by bodies such as the Royal College of Nursing and the United Kingdom Central Council for Nursing, Midwifery and Health Visiting, ethics and law play a very important role, and health professionals must always act within the law to avoid legal actions being brought against them. The various schools of thought in relation to ethics are also examined and utilisation of the same via decision-making models.

In relation to the general ethical dilemmas which face nurses and other healthcare workers in practice, Fletcher et al 1 discuss the ethical principles, explaining that although all health professionals face such dilemmas during practice, a multi-disciplinary approach has to be adopted in solving ethical problems. Fletcher et al outline the main ethical principles applicable to nursing ethics as the principle of respect for persons, respect for autonomy, justice, beneficence and non-maleficence.

Fletcher et al explain that the origins of moral philosophy date from 600 BC, and that the two most influential schools of thought are consequentialism and deontology. Consequentialism is explained as the justification of an action by examining the consequences of undertaking that action. Branching out from this school of thought are the various approaches, the first explained is teleological theories or unilitarianism, associated with the philosophical writings of Jeremy Bentham and John Stuart Mill. Fletcher et al state that Mill stipulated that the utility or ‘happiness’ principle stated that actions can only be regarded as moral if they promote the greater amount of happiness and the absence of pain.

Thompson et al 2 explains this ideology as a means to try to justify moral principles with regard to an overall goal or sense of purpose in society, the purpose being the pursuit of happiness, which is ‘built in’ in man. They discuss that that this stemmed from Aristotle in 320 BC, and that this form of ethics is known as teleological eudaemonism, the former word referring to his belief in the ‘built in’ purpose in nature, and the latter word describing the quest for happiness. They further explain the significance to health care, as they are under a duty to try to prevent or reduce pain wherever possible and promote the health and well-being of patients.

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1 ‘Ethics, Law and Nursing’ (1995) pp 7-17

2 ‘Nursing Ethics’, pp233-238

Thompson et al justify the means by which health professionals can evaluate what likely consequences of treatment may be including side-effects. As act unilitarianism, although they note that where health professionals have to take into account the wider responsibilities to the patient, the hospital, research or otherwise, then rule utilitarianism is more applicable. They conclude that this ideology emphasises the achievement of goals that are important to the context of human life, and the practical application of principles or rules and that consideration of the consequences of application are important to consider to determine whether a particular course is right or wrong.

Fletcher et al set out the separate branches from this notion, ‘act’ and ‘rule’ utilitarianism. Firstly dealing with ‘act’ utilitarianism, this is explained as each action is to be considered according to the consequences that ensue from it, morality determined by examining whether the greatest good came from that act. In relation to ‘rule’ utilitarianism, this is described as following of the general basic rules being in existence, forbidding murder, theft etc, rather than looking at the consequences that may ensue from that action, as by following these rules the greatest good must ensue as a natural result.

Fletcher et al also discuss ‘preference’ utilitarianism, as being the allowance of discretion of individuals in undertaking a certain action and to judge the morality of each with regard to their own judgement rather than following a rule or principle. This is plainly applicable to health practice.

The second school of thought explained by Fletcher et al is deontology, explained as the promotion of the importance of compliance with a duty when undertaking an action, the consequences thereof being irrelevant when considering to take such an action. This is explained as stemming from religious justification, that the explanation of such duties are the ‘laws’ sent from God, as God can be relied upon to distinguish what is right and wrong. Fletcher et al discuss the contribution to the school of thought by Immanuel Kant, a German philosopher (‘Groundwork of the Metaphysic of Morals’) who stipulated that the basis of morality lay in the ‘categorical imperative’, a moral command, set by established moral laws. Following such moral rules is regarded as imperative, regardless of the consequences of an action taken in compliance.

Fletcher et al emphasise that the deontological perspective reinforces the need to follow obligations, what ought to be done, and how, in a certain situation. The obligations that befall nurses are described as contractual, as part of the terms and conditions of employment; obligations similar to family ones are seen via the role of carer, though artificially created, and moral obligations, such as the obligation to respect patient confidentiality, patient’s autonomy, to do good (beneficence) and to do no harm (non-maleficence). Fletcher et al explain that these obligations can conflict in practice situations. The obligations of nursing staff must be balanced against the rights of the individual as patients, as enshrined in The Patient’s Charter, effective from April 1992.

Thompson et al further explain that deontological theories can also be distinguished into act deontology and rule deontology, the former being based upon the ability of an individual to impose their own moral duty into a situation when considering whether to take a form of action, and the latter being the emphasis upon moral duties and laws taking a universal form. They discuss the linkage of this school of thought to religious beliefs, as such rules can be argued as coming directly from God, as in the Ten Commandments. They do not discuss how this school applies to health practice, though it can be seen that this could be applied in paternalism (see below) when considering a patient’s autonomy.

Religious writers such as J.F. Keenan, from the Catholic perspective 3 explain that there has been a turn to virtue ethics which has rejected the modern practice of establishing that morality is governed by human rights language, which is considered the extent to which the principle of autonomy can be exercised. Keenan states that virtue ethicists ask whether there is a character building nature to the proposed course of action and that all moral evaluations are subject to a three sided question, who are we, who ought we to become, and how can we get there? He further explains that virtue ethics considers that actions should be considered in the context of whether they will affect the type of person they will become by undertaking that action, rather than asking whether there is a right in a certain way.

Fletcher et al discuss the issue of autonomy 4 as a basic principle that health professionals should always fully inform a patient about the diagnosis, forms of treatment available, and obtain his consent thereto, that is to treat him an an ‘autonomous being’. It is discussed that this may cause problems if the patient is mentally impaired or a minor, therefore it is recognised that there cannot be strict adherence to this principle, as patients would often not have the specialist knowledge to enable them to make a well-informed decision. The dilemma described in this instance is that the principle of autonomy can conflict with the principles of beneficence and non-maleficence.

Fletcher et al explain that paternalism may be used quite often by health professionals, namely the belief that they can make a decision in terms of treatment on a patient’s behalf without considering their wishes or overriding the same. This is exercised in accordance with the principle of beneficence, though it is explained that usually patients are told and their wishes are taken into consideration.

Fletcher et al 5 distinguish between legal rights and natural rights, the former enforceable via courts, and the latter deriving from natural law, originally thought of as coming from God, but in modern terms, has become enshrined in the concept of human rights, which have also become legal rights via the Universal Declaration of Human Rights 1948, itemising rights including the right to liberty and to life.

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3 Catholic Medical Quarterly May 1992: Assisted Suicide and the Distinction Between Killing and Letting Die: J. F. Keenan

4 Ethics, Law and Nursing’ (1995) pp 35-56

5 (ibid) pp139-143

Fletcher et al 6 discuss the law governing abortion, stating that it is a criminal offence under section 58 of the Offences against the Persons Act (OPA) 1861 to unlawfully do any act with intent to procure a miscarriage, which made abortion illegal prior to the enactment of the Abortion Act (AA) 1967. Fletcher et al explain that the Abortion Act 1967 did not repeal this earlier Act, but set out grounds which specified when abortion was legal, as a defence to a charge of criminal abortion.

They state that this has been amended by section 37 of the Human Fertilisation and Embryology Act (HFEA) 1990, which specify five grounds, including that a pregnancy has to be less than 24 weeks advanced; the risk or threat to the mother’s life, mental or physical health is too great to allow continuance of pregnancy; if there is a substantial risk that the child would be born with abnormalities rendering it severely handicapped; and, a unilateral act by a doctor to avert an immediate risk to the life or health of the mother.

Fletcher et al explain the right of nurses to exercise a conscientious objection, for example to carrying out an abortion, the rights of which are enshrined under section 4 of the AA 1967 and the HFEA 1990, the former being the refusal to participate in an abortion, the latter a right to refuse to participate in any treatment defined by the Act. This can be utilised where the individual health worker’s personal moral code conflicts with such a practice. However, as stated by McHale and Tingle, 7 this must be actual participation in treatment, not a mere refusal to type a letter of referral 8.

It is explained that such an individual can leave him/herself open to a legal action against him for an omission if there is a duty to act, though in practice this is rarely undertaken as another member of staff could perform the same treatment. Nursing staff may also record their objections to a specific course of treatment prescribed by another health professional on personal moral grounds, which might be affected by their contract of employment when the employers make decisions with regard to this.

Additionally, Ann Young 9 states that the refusal of the health professional can be made unless the treatment is necessary to save life or prevent grave permanent injury to the physical or mental health of the mother. However, she criticises the ambiguity of the word ‘grave’ as this could constitute depression as well as a serious heart defect.

In Selective Reduction and Feticide: The Parameters of Abortion 10, David Price emphasized that there is ambiguity in the use of the term of abortion by medical practitioners and lawyers alike. He noted that Glanville Williams’ definition of abortion 11 states that “For legal purposes, abortion means feticide: the intentional destruction of the foetus in the womb or any untimely delivery brought about with the intent to cause the death of the foetus.”

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6 (ibid)

7 ‘Law and Nursing’ p 208

8 Jannaway v Salford AHA [1988] 3 All ER 1079

9 ‘Legal Problems in Nursing Practice’p 209

10 (1988) Sweet & Maxwell Limited and Contributors: David P.T. Price

11 Textbook of Criminal Law, (2nd ed., 1983), p.292

In the context of non-consensual abortion, Price explains that this can occur where the death of a foetus was caused by an act of non-consensual violence upon a pregnant woman. He argues that this act may not necessarily fall within the definition of a criminal abortion under section 58 OPA 1861, and would rather be treated as an assault.

He states that in the United States, courts are prepared to extend the crime of abortion, which is similar to section 58, to non-consensual assaults upon women resulting in foetal death 12 though in this case the man causing foetal death was charged with assault rather than foetal murder.

Looking at an American viewpoint, in Bioethics and Medical Ethics 13, Thomas Platt considers that the emphasis on autonomy ignores the deeper metaphysical issue of the degree to which any human act can be regarded as freely chosen. He states that the scientific perspective purely states that human behavior is the result of genetic and environmental factors. He stipulates that it has to be the environment in which a person has been raised which will determine how a person will respond to a suggestion, for example abortion, and that in less technologically developed cultures, they would respond in a different way to the West.

Verena Tschudin 14 explains ethical decision making models in many forms including Jameton’s model, which requires identification of the problem, gathering of data to identify options and make a decision to act and then assess the consequences thereof; Crisham’s model; initially ‘massaging’ the dilemma, outlining the options, reviewing the criteria, before the act and evaluation thereof and the Nursing process model, which requires assessment, planning, implementation and evaluation. The latter involves a series of questions at assessment level, planning identifies whether the ethical problem is a question of teleology or deontology, with a series of questions to follow, implementation requires consideration of whether one would like to receive the same treatment, and finally evaluation considers whether the act has solved the problem and what was gained, with a series of questions.

In relation to the exercise of patient consent, this is described as an exercise of a patient’s autonomy. The UKCC’s guidelines re that the health professional must ‘explain the intended test or procedure to the patient without bias and in as much detail as the patient requires’, and that if no questions have been asked then the health professional should assess the amount of information the patient requires 15. It is explained that a nurse, as per Clause 1 of the UKCC Code of Professional Conduct must ‘act in such a way as to promote and safeguard the interests and well-being of patients and clients’. This is explained to go so far as stating his/her opinion that there has been insufficient information provided to the patient to render the same fully understandable to him and enable him to make a fully informed decision 16, which can affect the judgment given by a doctor.

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12 Hollis v. Commonwealth 652 S.W. 2d 61 (Ky. 1983)

13 Medicine, Metaphysics and Morals: Thomas Platt: West Chester University

14 ‘Ethics in Nursing’ p 85-95

15 ‘Exercising Accountability’

16 (ibid)

It is explained further 17 that the principle of autonomy is enshrined in law as the right to self-determination. Written consent is usually provided before surgery, in a standard form from the Department of Health, which has been amended in 1991.The case law relating to consent stems from the general principle that every adult person of sound mind and body has a right to determine what happens to his body, and that a surgeon who performs an operation without his consent has committed an assault 18. However, this principle is heavily qualified is discussed. In the case of informed consent, where the patient is given insufficient information about the risks of a certain procedure, the patient must sue in negligence rather than in battery 19.

Even the standard set in negligence is weighted heavily in favour of the health professional, as it has been ruled that a doctor is not guilty of negligence as he has acted in accordance with the accepted practice in that field by other doctors 20. This case was affirmed in Sidaway v Bethlem Royal Hospital 21, and in further subsequent cases such as Blyth v Bloomsbury AHA 22 and Gold v Haringey AHA 23, where the restrictive disclosure policy was supported by general medical opinion. It was highlighted that despite this, Lord Bridge has emphasised in Sidaway 24, that even if a health professional acts in accordance with general practice, the court may still take a decision that there has been non-disclosure of material facts.

Specific problems are highlighted in the context of where a patient is incapable of providing consent, which is governed by law. The case law has established that a health professional must only do what is absolutely necessary to save the patient’s life, which does not include removal of a womb if it has been considered a further pregnancy would jeopardise the patient’s life 25. Therefore, it is argued that this principle of doing what is necessary to save a life overrides the right to autonomy 26. However, this does not extend to the life of a foetus in risk 27.

Regarding accountability, Fletcher et al 28 states that the Code of Professional Conduct stipulates a registered nurse, midwife or health visitor is personally accountable for her practice, even off-duty. This ties in with the professional’s legal duty of care, as explained by Tingle & Cribb 29, deriving from Donoghue v Stevenson 30, as the need to take reasonable care to avoid acts or omissions that can be reasonably foreseen to injury a person affected by the acts or omissions, which can result in an action for negligence. Tingle & Cribb state that the nurse has to weigh up the potential harm and benefit of the patient at that time, and reach the decision involving the least harm.

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17 (Fletcher et al: ibid)

18 Schloendorff v Society of New York [1914]

19 Chatterson v Gerson [1981]

20 Bolam v Friern Hospital Management Committee [1957]

21 [1985]

22 [1985]

23 [1988]

24 (ibid)

25 Devi v West Midlands AHA

26 Re T

27 Re F (in utero) [1988]

28 (ibid) pp104-129

29 ‘Nursing Law and Ethics’ p 13-19

30 [1932]

The professional standards are maintained by the UKCC in the Code of Professional Conduct, and each nurse or midwife is under that duty, though they argue that this standard is set by the profession itself. In the case of an allegation of a breach of such a duty, the health professional can be subject to disciplinary action for misconduct. They explain that accountability merely requires a health professional to be able to justify their actions. Fletcher et al consider that it is important for the professional to have regard to the interests of patients and clients rather than purely the rules of the UKCC. Verena Tschudin 31 states that nurses have both a legal and moral accountability, which arises from patient autonomy.

Fletcher et al discuss the dilemmas that may occur in healthcare practice, and where the health professional’s moral code is at odds with her duty, The Code of Professional Conduct stipulates that the professional must ensure that no action or omission by that person will be detrimental to the condition of the patient, which can be seen as the principle of non-maleficence. An example is provided that if the incorrect dose of medicine has been administered to a patient, then that health professional’s self-interest should not override her duty to disclose the error as this could not be argued to be in the patient’s best interests.

In relation to professional competence, Fletcher et al state that The Code of Professional Conduct stipulates that a health professional must maintain and improve their professional knowledge and competence. As regards midwives, Fletcher et al state that they requirement is to attend a five-day refresher course, five approved study days every five years or another approved course. There has been an impact in the context of European Community (EC) legislation, as explained by Bridgit Dimond 32, the activities of a midwife are defined in EC Directive 80/155/EEC Article 4, including providing family planning advice to recognise warning signs of abnormalities necessitating doctor referral.

Fletcher et al criticise the limitations of the Post-registration Education and Practice Project in 1990 for newly qualified nurses, and those returning to health care practice after five years, requiring five days study leave every three years and demonstration of professional knowledge and competence. However, since then, Ms Dimond has argued that Project 2000 has sought to integrate nurse clinical teaching and practice 33.

Fletcher et al explain that ethical dilemmas can arise from the instructions provided by a senior member of staff, which does not accord with the health professional’s personal or moral beliefs. When making a decision on how to act, that professional will have to consider whether she is acting within the law, according to the Code of Professional Conduct, and also in the best interests of the patient as well as her own beliefs. They discuss the remedies available to patients or clients, which are a complaint to the UKCC which would result in a hearing before the Professional Conduct Committee; use of the formal Hospital Complaints Procedure; or a complaint to the nurse’s employer.

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31 (ibid) p 116

32 ‘Legal Aspects of Nursing’ pp 444-457

33 (ibid) p 270

In conclusion, in the context of conscientious objections, it has been suggested that there should be ward-based abortions carried out only 34 in special units by professionals who have taken up such jobs as they do not have moral or ethical objections to abortion. Verena Tscudin 35 states that here is however, always a conflict between a nurse or midwife’s duty to preserve life rather than destroy it. The culmination of ethical perspectives in decision-making models assist the professional, though she must also always be mindful of her duty to the patient, the Code of Professional Conduct and the law.

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34 Ann Young, p 209

35 (ibid) p 137

BIBLIOGRAPHY

Bioethics and Medical Ethics :Medicine, Metaphysics and Morals: Thomas Platt: West Chester University

Catholic Medical Quarterly May 1992: Assisted Suicide and the Distinction Between Killing and Letting Die: J. F. Keenan

‘Ethics in Nursing’ (2^nd edition) 1992 (Butterworth/Heinemann) pp 85-95: Verena Tschudin

‘Ethics, Law and Nursing’ (1995) Manchester University Press pp 7-17; pp 35-56; pp 139-143: Fletcher et al

‘Legal Aspects of Nursing’ (2^nd edition) 1995 (Prenctice Hall) pp 444-457: Bridgit Dimond

‘Legal Problems in Nursing Practice’(2^nd edition) 1993 (Chapman & Hall) p 209: Ann P.Young

‘Law and Nursing’ (2^nd edition) 2001 (Butterworth/Heinemann) p 208: McHale and Tingle

‘Nursing Law and Ethics’1995 (Blackwell) pp 13-19: Tingle & Cribb

Selective Reduction and Feticide: The Parameters of Abortion ((1988) Sweet & Maxwell Limited and Contributors: David P.T. Price

‘Nursing Ethics’(2^nd edition) 1993(Churchill Livingstone), pp233-238: Thompson et al

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