David Burrowes is PPS to Owen Paterson and MP for Enfield Southgate.
This week, it was revealed that the Care Quality Commission’s 2012 investigations in to abortion clinics found that 67 doctors had pre-signed abortion referral forms. The public and media has yet to wake up to the scale of this scandal. We could be looking at 67 doctors being charged under the Offences Against the Person Act and, if there’s any justice, a full inquiry into the General Medical Council’s conduct.
Pre-signing is clearly illegal. The Abortion Act requires two doctors to form an opinion in good faith that one of the criteria for an abortion set out in the Act are met. Pre-signing is where doctors sign blank abortion forms before anything at all is known about the patient. You wouldn’t expect this to take place for routine prescriptions for antibiotics, but it has been happening regularly and in great numbers for abortions. Obviously, it is not possible to form any medical judgement on the basis of no information, so these abortion referrals were outside the law.
The Health Minister Earl Howe confirmed this in a recent debate in the Lords:
“…forms being pre-signed is a clear breach of the law and if it is found to be happening, a prosecution should be brought.”
However, no prosecutions have yet been taken place. Indeed, the General Medical Council appears to have acted to hush these cases up, only revealing their details following a series of Freedom of Information requests. None of the cases were referred to the police. None were struck off the medical register. None were referred for a public hearing. We don’t need the 800th anniversary of the Magna Carta next year to remind us that doctors are not above the law.
If the GMC had not turned a blind eye to flagrant criminality, what should have happened? After the GMC disciplinary hearings, the doctors’ actions ought to have been referred for a public hearing by a ‘Fitness to Practise’ panel and a police investigation should have followed. If the police agreed with the GMC that pre-signing had taken place, charges should have been laid.
Their actions removed doctors’ usual protection from the Offences Against the Person Act 1861 and Infant Life Preservation Act 1929. An abortion which does not satisfy the criteria of the Abortion Act 1967 is vulnerable to offences detailed in these two Acts. The most likely charges would be procuring miscarriage or child destruction, both of which carry serious punishments. But there is also the possibility that the Perjury Act 1911 would apply. Section 5 deals with the wilful falsification of statutory certificates which would be relevant to these cases as each doctor declared with their signature to have come to the professional medical opinion that the patient needed an abortion without knowing anything about her.
Whatever the precise charge, something should have been done. But nothing was. In the absence of the 67 doctors who should be in the dock? The General Medical Council, the Crown Prosecution Service and the Department of Health.
Ministers from the Department of Health have gone on record a number of times to say that accusations of illegal abortions should be referred to the police, even going as far as to say that they will refer cases themselves if given evidence. They now have an opportunity to ask the GMC for the details of the cases and to refer them. I hope that they will do so and not let the GMC mark their doctors illegal homework.
Jeremy Hunt is pressing for greater openness and transparency in the NHS, and he would do well to first urge the GMC to get their own house in order. The GMC themselves need to open up their files on these doctors so that a police investigation may take place. I find it hard to believe that, faced with the evidence of obvious illegality of pre-signing, the senior lawyers on these ‘Fitness to Practise Panels’ failed to refer a single case on for criminal investigation. This is an outrage – and an account must be given freely or forced through government Inquiry.
Finally, once a police investigation takes place, the CPS must enforce the law. Last year, the CPS decided not to prosecute doctors who had given permission for gender abortions on the ground that it wouldn’t be in the public interest. In the same statement, the CPS indicated that, other things being equal, pre-signing meets all the tests for prosecution. These doctors cannot hide behind policy decisions of hospitals or the fact that pre-signing was widespread. They are personally liable for their decisions and must be held to account accordingly.
This case of the missing 67 prosecutions has wider implications. If we cannot prosecute doctors who refer women for an operation with serious ethical, legal and physical consequences without knowing a single thing about them, the Abortion Act is a dead letter. No one takes pleasure in the possibility of 67 doctors being hauled through the courts. But the rule of law means that everyone must be treated equally. That includes doctors. If the GMC won’t do the right thing and refer the cases to the police, than I and a number of other MPs feel duty bound on behalf of the public to do so.