High Court throws out application for judicial review of abortion decision

Family|May 16th 2014

The NHS is entitled to refuse to fund an abortion for a teenager from Northern Ireland, the High Court has ruled.

R (A and Another) v Secretary of State for Health concerned a 15 year-old from the province, called ‘A’ in the judgement, who travelled to a clinic in Manchester with her mother to have a termination after becoming pregnant. They had been refused an abortion by the authorities in Northern Ireland.

Her mother said: “…the whole experience and stress of not knowing whether it was going to be possible to have the procedure and raise the funds was harrowing and had a serious impact on (A) and myself.”

Half the costs of both the procedure and the family’s travel expenses were paid by a voluntary organisation called the Abortion Network, which had advised them that women from Northern Ireland who travel from England are not normally allowed have abortions on the NHS.

The girl and her mother, who acted as her litigation friend, conducting proceedings on her behalf, applied for a judicial review of the regulations which forbade A from having a termination on the NHS. Her mother complained:

“Had we known from the outset that we would be able to travel to the UK and that (A) could have the procedure free on the NHS, this would have significantly reduced the stress and trauma she experienced.”

She continued:

“I feel my daughter has been treated most unfairly, because when she was required treatment in another part of the United Kingdom, she did not get it, and was offered no assistance by the state health care system. If my daughter had had some other health condition, which necessitated her travelling to another part of the UK for treatment I believe that no obstacles would been put in her way and that every effort would have been made to ensure that she was treated in an appropriate NHS facility and had assistance with travel costs.”

But, sitting in the Queen’s Bench Division, Mr Justice King said the Secretary of State for Health, the defendant in the family’s application, was entitled, under the National Health Service Act 2006, to:

“…have regard to the statutory position that the primary responsibility for the physical and mental health of those resident in Northern Ireland lies with the authorities and the health service in Northern Ireland, and that those ordinarily resident in Northern Ireland (or Scotland or Wales) should be expected in general to access the relevant services from the health service of those jurisdictions, consistent with the duties imposed on the relevant authorities to provide a health service for the people of those jurisdictions.”

In a letter regarding the case, the Secretary of State for Health expressed the government’s policy on the issue:

“…in general the NHS should not fund services for residents of Northern Ireland which the Northern Ireland assembly has deliberately decided not to legislate to provide, and which would be unlawful if provided in Northern Ireland.”

Mr Justice King admitted that:

“The fact that abortion services in Northern Ireland are available on a much more limited basis because of the state of the criminal law in Northern Ireland cannot in my judgment render that judgment of the defendant under section 3 [of the National Health Service Act] a perverse one. This is but a consequence of the devolution of powers and duties not only in relation to health care which underpins the judgments made by the defendant under section 3 but in relation to criminal law.”

Therefore, the government’s position was

“…No more than paying respect in the context of the devolution of powers, for the approach deliberately adopted by the responsible authorities in Northern Ireland and there can be nothing unlawful in that in my judgment.”

Read the full judgement here.

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