The Department of Health has released a consultation updating the Procedures by which the Secretary of State approves independent sector places to perform termination of pregnancies. The consultation document sets out the updated set of Required Standard Operating Procedures (RSOPs) which will be considered when providing re-approvals to independent providers. Re-approvals will apply for a period of four years. The new four year approval period will commence on 31 May 2014.
Section 1(3) of the Abortion Act 1967 gives the Secretary of State for Health the power to approve independent sector places as places where abortion can take place. Under the Procedures the Secretary of States approval to perform abortions can be withdrawn at any time if the approved place fails to comply with, or maintain, the required standard. In addition to approval of the Secretary of State all termination of pregnancy providers (excluding English NHS bodies) must be registered with the CQC. The Government maintains that separate approval of independent sector places should continue, in line with the powers under the Abortion Act, but that the approval should reflect best practice and ensure that every woman receives high quality advice and support.
Independent providers are required to seek the Secretary of States approval and commit to compliance with the RSOPs following successful registration with the CQC. The law dictates that unless in the event of an emergency, two doctors must certify that in their opinion, which must be formed in good faith, a request for an abortion meets at least one and the same grounds set out in the Abortion Act. If evidence is available that shows a certifying doctor did not form their opinion in good faith, the doctor performing the termination will not be protected under the Abortion Act and will potentially have committed a criminal offence through termination of the pregnancy.
The change to procedures follows a report by the CQC, commissioned by the Secretary of State in 2012, that found some doctors may have been pre-signing abortion certificate forms. The pre-signing of forms is incompatible with the requirement for doctors to form an opinion in good faith. Following release of the report, subsequent inspections by CQC have found no further evidence of pre-signing.
Concerns have also been raised by the Crown Prosecution Service around available guidance for doctors covering the assessment of risk to the mental and physical health of patients and proper processes for recording such assessments. A letter by the Chief Medical Officer in response to the concern highlighted that “the law is clear that termination on the grounds of gender alone is illegal.” It also outlined the expectation that “both doctors will have taken positive steps to obtain information specific to the woman seeking a termination as part of reaching their decision and to have turned their mind to the particular facts of that case when forming their opinion. Doctors should be able to evidence how this decision was reached if asked to justify it subsequently. The pre-signing of HSA1 forms or “counter-signing” decisions of other doctors is unacceptable in this process and incompatible with the requirement to form an opinion in “good faith”.”
The deadline for response to the consultation has been extended to 3 February 2014.