DPP addresses 'grey area' concerns
Published 17/10/2013 | 13:01
The legal basis of a controversial abortion guideline blamed for spreading fear among doctors in Northern Ireland has been questioned after the region's chief prosecutor stepped in to assure medics it did not put them at risk of imprisonment.
The draft guideline, issued by Stormont's Health Minister Edwin Poots, had warned of a "grey area" over the legality of someone assisting a woman to obtain a termination outside the region, such as in England.
The issue has gained prominence this month after the spotlight was shone on the cases of two pregnant women, whose babies had a fatal foetal abnormality, who were refused abortions in Northern Ireland, where the law on the procedure is much more restrictive than elsewhere in the UK.
Northern Ireland's Director of Public Prosecutions (DPP) Barra McGrory, who was not consulted in the drafting of the guidelines, today moved to address uncertainty caused by the "grey area" reference, by indicating it was not a crime to assist a woman to go elsewhere in the UK for a termination.
Doctors and nurses have claimed the contentious abortion guidelines, which highlight the risk of imprisonment for breaches of the law, have created a mood of fear among healthcare professionals.
Mr McGrory's intervention has seen Mr Poots face criticism from political rivals, notably Sinn Fein, who questioned whether the minister's guidance had been properly "legally proofed".
The DPP, who is due to hold talks with Mr Poots on the guidelines, explained it was not a crime to advise or assist someone to do something that was legal in the place where they were doing it.
"I do feel that perhaps some clarification is required for those who are concerned about criminality liability being engaged in these circumstances," he said.
"It is difficult to envisage circumstances where anyone could be accused of aiding or abetting a crime of having an abortion in circumstances where people are travelling to England where it is lawful."
Northern Ireland is not covered by the 1967 Abortion Act that operates in the rest of the UK and terminations are only permitted where there is a serious risk to the physical or mental health of the mother.
Every year, more than 1,000 women travel from the region to clinics in England, Scotland and Wales where access to an abortion is allowed up to 24 weeks into pregnancy on grounds that include abnormalities which could lead to a child being seriously disabled.
The new draft guidelines on how to apply the law in Northern Ireland were published by the Department of Health earlier this year and put out for public consultation.
With that process now over, Mr Poots is set to bring revised guidelines before the Stormont Executive within weeks.
Mr McGrory has insisted the issue over assisting an abortion was not comparable to the debate on the criminality liability of assisting suicide.
He explained that assisting suicide was an offence on the statute in its own right.
Sinn Fein chair of Stormont's health committee Maeve McLaughlin said Mr Poots needed to provide answers on the guidelines "as a matter of urgency".
"This morning's statement by the DPP Barra McGrory has cast doubt on the legal basis for some of the assertions within the guidance," she said.
"The question now arises as to whether or not this guidance has been fully and properly legally proofed.
"As Chairperson of the Health Committee I intend seeking a meeting with both the Health Minister and the DPP to bring clarity to the matter.
"I will also be requesting that the Health Minister come before the Health Committee to discuss this matter and related issues and that Mr Poots makes available to the Committee the advice he received from departmental officials including departmental solicitors on these matters."
She said there was also a need for clarity around whether or not cases of fatal foetal abnormality could be accommodated within the existing legal framework in Northern Ireland.
Ms McLaughlin added: "These are clearly exceptional and traumatic circumstances and the families affected and the healthcare clinicians who are dealing with them, require and are entitled to immediate clarification."
In regard to the "grey area", a spokeswoman for the minister's department explained that the issue related to "active encouragement" of an abortion - something, she said, had not yet been tested by the courts.
"The 'grey area' in the guidelines refers to whether it is lawful to 'advocate or promote' an abortion in another jurisdiction," she said.
"That is, to actively encourage someone to have a termination.
"This has not been considered by the courts in Northern Ireland.
"It is not unlawful to provide information about services in other jurisdictions, and it is not unlawful to travel to GB.
"Legal advice was available throughout the drafting of this draft.
"The DPP is not routinely asked for legal advice."
Pro-choice campaigners claim the draft guidelines have narrowed the law on abortion, while pro-life advocates have vowed to potentially challenge any changes to the guidelines through the courts.