Doctor's ethics guide may lead to legal difficulties

The new guidelines on pregnancy termination for the medical profession do not take account of the present state of the law, according to legal opinion.

The council's recently published Guide to Ethical Conduct and Behaviour states that the "deliberate and intentional destruction of the unborn child is professional misconduct". However, according to legal sources, difficulties are likely to rise if at some stage the Medical Council attempted to strike off a doctor for carrying out an abortion. If a complaint is made against a doctor it is dealt with by the Council's Fitness to Practise committee. If the council decides to strike a doctor from its register because of serious professional misconduct, this decision must be ratified by the High Court.

At this point it is open to the doctor to challenge the decision. Following a complaint, the doctor could argue that he believed his patient's life was in danger from suicide, citing the Constitution, as interpreted by the 1993 Supreme Court judgment.

Initially, according to legal sources, there may be difficulty establishing that the women was in fact suicidal.

"Is it the actual state of affairs which is relevant or the doctor's opinion of it? If you get over that, the doctor could argue that this was a service that the woman was entitled to under the X case, therefore it is wrong to penalise him for making available something she is entitled to," a senior counsel explains.

The Medical Council, he says, may in turn argue that it was not saying the woman was not entitled to an abortion, but that she could avail of it in the UK or with a practitioner not registered with it.

But he also points out that the council is, in effect, a law-making body over its members, with a duty to ensure its rules conform with the law of the State. "They could say that at the end of the day this is unprofessional conduct which the majority of the profession in good standing would regard as such. A private body could simply decide not to let that person be a member of their body."

One barrister describes the council's approach to abortion in the guide as "turning on a Catholic theological distinction". It states that if a child in utero were to "suffer or lose its life as a side effect of standard medical treatment of the mother, then this is not unethical".

"This is a document which is in some sense, at least, a legal document and they have put in a concept which is a specifically Catholic concept. You are looking at the double effect principle - I'm a Catholic doctor carrying out this procedure and I am not going to let this ectopic pregnancy kill this woman so I will remove the fallopian tube.

"I know it will destroy the foetus, but I am not thinking of that. But that is at odds with the law. The law presumes that you intend the natural and probable consequences of your actions."

The Medical Council guidelines in this area, are the "Catholic way of looking at things but they do not make sense in law". He says there is a specific right found by the Supreme Court "for a particular form of medical treatment in a particular situation".

However, the chairman of the Medical Council's Ethics Committee, Dr James Clinch, argues that the ethics guide is "very much a medical ethics document not a legal one". Asked about a possible challenge by a doctor against a Medical Council ruling, Dr Clinch says: "You just can't say what might happen if you went to the High Court.

"It is very much a medical ethics document. One has to take things as they come. If you go into the legal sphere . . . it would be wrong to produce a medical ethics document that relies on the law. There are always things that can be legal but are medically unethical, such as female circumcision and administering a lethal injection for the death penalty."

The wording of the guide relating to abortion does not leaves doctors in a vacuum, he says. "It says that it is unethical to destroy an unborn child. That is what was said in the previous guide except now it is in simpler language." The ethical guide, he says advises doctors. "It is an awful pity that everyone seems to have ignored everything but the termination of pregnancy." Asked about "standard" medical treatment Dr Clinch says it is the "ordinary treatment given to someone suffering from a serious disease. The ordinary man in the street would understand that."

A woman with a psychiatric disorder, he says, should see a good psychiatrist. "Psychiatric problems should be dealt with in a psychiatric manner, not with termination of pregnancy."