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Abortion law in UK? (general principles, not details of abortion act)

Was illegal under the Offences Against the Person Act 1861 (England and Wales) and by common law in Scotland. Abortion is still by default illegal (don’t say ‘abortion is legal’) but it has been decriminalised in certain circumstances;

- Must be carried out within the NHS or an NHS approved facility

- Unless an emergency (in which case, no documentation), 2 registered medical practitioners (doctors), acting in good faith must sign off documents to indicate that an abortion is justified within the Abortion Act

- Good faith: The doctor has not been dishonest or negligent in forming that opinion that there are lawful grounds for procedure

- No legal rights for the fetus. HRA Article 2- Right to life does not extend to the fetus

- No legal rights for the biological father (Biological fathers: if view fetus as separate entity may be seen differently, if viewed as part of mothers body father having rights about decision would be seen as control over her body)


What does the Abortion Act (1967) say?

Amended by Human Fertilisation + Embryology Act 1990 (28 > 24).

1. Pregnancy has not exceeded 24 weeks + continuing pregnancy would involve RISK, greater than if pregnancy were terminated, of INJURY to PHYSICAL or MENTAL health of the pregnant woman or any EXISTING CHILDREN of her family (most; ‘social’).

Up to term:
2. That the termination is NECESSARY to prevent GRAVE PERMANENT injury that the PHYSICAL or MENTAL health of the pregnant woman

3. That the continuance of the pregnancy would involve RISK TO LIFE of pregnant woman, greater than if pregnancy were terminated

4. That there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped

Note: this criteria can be decided by any doctor doesn’t have to be O&G


Criticisms of the abortion act?

• Potential disadvantage if poor health literacy – ability to explain reasons why abortion is wanted and push forward to seek second opinion

• This means it is legal to terminate a pregnancy because of a woman’s social or financial circumstances (e.g. income, housing situation, her support network). The law bestows upon doctors a gatekeeping role in terms of deciding who may have an abortion. ‘Social abortion’ – the current criteria are supposed to be medical criteria. Do doctors have right to determine social criteria?

• Lots of guidelines are open to interpretation

• Last act: disablist act? RCOG: not practicable to give definition of serious disability – difficult to predict and should be based on discuss with parents


Abortion on grounds of fetal sex?

• DOH guidance 2014: abortion on the grounds of gender alone is illegal

Some people have campaigned for the law to be changed to include an explicit statement on this
o Giving other reasons about how the sex of the baby will affect you makes It legal; X-linked recessive disease
o Doctors must know details of case in order to sign in good faith

Telegraph sting > director of public prosecutions > GMC referral, 3 month suspension

Directing to abortions abroad for fetal sex termination

Kier Stamer: "The law does not, in terms, expressly prohibit gender-specific abortions; rather it prohibits any abortion carried out without two medical practitioners having formed a view, in good faith, that the health risks of continuing with a pregnancy outweigh those of termination."


Ethical arguments for abortion?

Women should have the right to choose what happens to their bodies (right of bodily integrity)

Autonomy of the mother outweighs the rights of the fetus/ fetus has no automatic right of use of a women’s body

Most people would choose to save the right of a woman over a fetus. Therefore women’s rights trump the rights/interests of a fetus

Mother is the patient and has ‘contract’ with doctor / duty of care

In the best interests of the mother:
socio-economic factors, ability to care for the baby

If the pregnancy was due to sexual assault (not their choice)

May not in the best interests of the baby (medical reasons)


Arguments against abortion?

Religious/other reasons see life as from conception (pro-life arguments suggest that fetus have the right to life) > rights to the fetus & the sanctity of life

No moral difference between a fetus and a child, morally significant point is conception, wrong to kill a (innocent) human being, fetus is a (innocent) human being

Therefore it is wrong to kill a fetus (Abortion means murder)


Outline the personhood argument?

Only ‘persons’ can claim rights – therefore, what is a person?

Someone who can make choices and is self-aware, conception of future and evaluate past experiences: foetus cannot claim right to life, but neither can patients in permanent vegetative states and neonates: but surely these patients are the ones requiring protection?

Concept of potentiality: potential human being; wrong to kill potential human. Foetus at later gestation has higher probability of becoming a person capable of independent life; however egg and sperm also have this potential – could be an argument against contraception – we don’t usually allocate rights & status according to potential

When does moral status begin? Moral right at point of viability: however termination up to 24 weeks, some foetuses now surviving at 22 weeks?

Viability depends on technology so not ethical principle-differs depending on geography. If viability is at 6 months somewhere in the world is it ok to go there and have an abortion?

o If moral status starts at consciousness / pleasure / pain – how can we measure this? Social meanings? (Nadine Dorries – 21 weeks)

- Conception  nervous system  viability? More consensus for the gradualist approach (the further on in the pregnancy the more uncomfortable people feel)


Confidentiality issues with abortion?

Abortion Notification to Chief Medical Officer (for statistics)

• HSA4: includes doctor + patient details; grounds for abortion type
• HSA1 kept on patient’s record for 3 years

Confidentiality GMC 2017: not absolute can be breached in following circumstances
• Patient consents
• Overall benefit to patient (when patient lacks capacity)
• Required by law
• Justifiable in public interest
• *Doctors have statutory duty to report FGM (young person under 18- may not be in their best interests), some infectious diseases, court request/GMC, can breach a patients confidence in the interest of the public (public can mean just one person)

Issues: abortion not like a notifiable disease, why must they know the women’s names?


2016 Abortion statistics?

Statistics 2016 DOH abortion statistics
(A-E in statistics; A divided into 2 on forms)

190,406 abortions in 2016, slightly lower than in 2015 (191,014); (2017: 194,681)

Rate was highest for women at the age of 22 

• 98% funded by NHS, 68% of these independent sector under NHS contract 

• 92% per cent under 13 weeks
• 81% under 10/40 
• 2% under ground E (risk of serious handicap) 


Ireland abortion law?

Law in NI
- Medical abortions are legal up to 9 weeks; only if threat to the life of the woman or risk of serious adverse effect on her health, which is either long term or permanent
- Ireland 2018 referendum: ROI now legal up to 12 weeks


What is conscientious objection?

Arguments against it?

Conscientious Objection

Not wanting to do act as do not agree (fertility treatment, contraception, abortion): should be allowed to object to ANY procedure/Tx on basis of moral/religious reasons?

o Trained by public money
o Should act within our limitations

o More closely aligned the ethical values are to goals and values in medicine the more we might support the CO e.g. enhancing dignity, relieving suffering, saving life, respecting patient’s choices.

o Duty as a doctor outweighs one’s own beliefs: doesn’t comply with duty to put patient first (and act in their best interests) and harks back to paternalism.


What does GMC say about CO?

Good medical practice (2013)

- You may choose to opt out of providing a particular procedure because of your personal beliefs and values

- As long as it does not result in direct or indirect discrimination against, or harassment of individual patients or groups of patients

- You must not refuse to treat a patient/group of patients because of your personal beliefs or views about them

- You must not refuse to treat the health consequences of lifestyle choices to which you object because of your beliefs

Actions according to GMC guidelines

- Tell the patient that you do not provide the particular Tx or procedure, being careful not to cause distress, you may mention the reason for your objection (be careful not to imply judgement of the patient)

- Tell the patient they have the right to discuss their condition and make sure the patient can see another doctor who does not hold the same objection as you


What does the BMA say about CO?

Doctors should have the right to CO to participation in abortion, fertility treatment and withdrawal of life-sustaining Tx, where another doctor is willing to take over the patient’s care. Doctors should not claim a CO to particular patients or groups of patients


What is the position on CO specifically for abortion?

Doctors can conscientiously object* to abortion but they still have a duty to participate in treatment which is necessary to save the life or prevent grave permanent injury to a woman

Any doctor/nurse with a CO must refer her to another doctor without delay

Role of nurses in providing abortion services was examined by the supreme court which ruled that a nurse does not have the right to avoid supervising other nurses involved in abortion procedures (Supreme Court; must be ‘hands-on’ procedure)

Doctors may practice medicine in accordance with their beliefs, provided that they act accordance with relevant legislation and:
- Do not treat patients unfairly
- Do not deny patients access to appropriate medical treatment or services
- Do not cause distress
If any of these circumstances is likely to arise, we as doctors are to provide effective care, advice or support in line with Good medical practice, whatever their personal beliefs.


Should women be held to account morally or legally if their lifestyles/activities cause potential harm to a fetus?

(what is the current position)

- Could argue fetus has interests but not rights
- When to justify restricting woman’s liberty
- Removing children from parents for neglect – high threshold

Legal status is only acquired when child is born therefore unborn child has no rights until birth.

Mother cannot be sued in negligence for harm caused in utero unless harm occurred as a result of a road traffic accident where insurance would fund a claim for compensation

Foetal alcohol syndrome case (court of appeal 2014): Section 23 Offence against the Person Act – unlawful to administer to any other person any noxious agent to inflict grevious bodily harm – foetus not believed to person at the time

- If case won: suggests that foetus and mother as separate entities rather than part of mothers body – would also damage relationship between mother and healthcare professionals.

- Cannot restrict a woman’s behaviour/activity without grey areas


Can children pursue legal action for lifestyles/activities causing potential harm to fetus?

Congenital Disabilities (Civil Liability) Act 1976 – enables child once born to make a compensation claim for disabilities occurring before birth as a result of breach of duty owed to one of his parents

“Wrongful life” claim is one made by a child alleging that but for the negligence of doctor would not be born because mother was deprived of choice not to continue with pregnancy > English Law does not recognise claim for wrongful life as impossible to compare life of poor quality to no life at all


Issues with antenatal screening?

Can be seen as a disablist argument- having down’s syndrome is unacceptable by screening for it and is effectively eugenic

*Harmony test-privately available (not 100% sensitive): ~99%; £300 - rich people without disabled children? Question of 'couldn't you afford the screening?'


What is PGD?

Ethical + legal issues?

Pre-implantation Genetic Diagnosis

- Alternative to prenatal diagnosis: couple with genetic mutation could conceive naturally and choose termination if antenatal testing detects conditions; may not be acceptable choice to some couples; PGD preferable if consider foetus has greater moral value than embryo in vitro.

HFEA: licences for condition which PGD can be used: must be sufficiently serious before licence granted – increasing numbers now that genetic mutation knowledge increasing

- Can be used for adult-onset conditions e.g. Huntington’s or lower penetrance late-onset conditions (BRCA1/2). Cannot be used to prefer selection of embryos which would develop serious disability or illness. Implantation of non-affected embryos eradicates mutation for future generations.

HFEA 2008 amendment to 1990 Act: embryo testing acceptable where significant risk child born with or will develop serious illness / disability: consider degree of suffering, availability of effective Tx, degree of any intellectual impairment + social support available

- Destruction of embryos is morally contentious for those who consider life at fertilisation.


What is assisted reproduction? Legal issues?

Assisted Reproduction: ovarian stimulation, IVF, egg/sperm donation, IUI, PGD, surrogacy

All regulated by Human Fertilization and Embryology Act 1990 (2008) – set up to license, monitor and collect data on procedures, license needed for any clinic involved in use, storage, disposal of gametes and embryos.

2012: 77 licensed clinics in UK.

HFEA regulatory principles: equality, confidentiality, consent and guidance on assessing welfare of child to be born, safety and data transparency / research


What does Section 3 of HFEA say?

Clinic must take into account ‘welfare of any child who may be born as a result of the licensed treatment provided by them and any other child who may be affected by that birth’

HFEA (2005) published Tomorrow’s Children – more focused interpretation – provide Tx for those seeking it unless evidence that child or existing child of family would face serious risk of medical, physical or psychological harm; consider previous convictions relating to harming children, chronic physical illness, mental health problems, drug/alcohol addiction, family history of inherited diseases

(1990 – ‘Need for a father’ replaced by ‘supportive parenting’ which is defined as commitment to health, well-being and development of the child’)


How is fertility Tx allocated?

Infertility common (~7% having regular SI won’t conceive in 2 years)

NICE: infertility Tx offered to individuals or couples with medical cause or unexplained infertility after trying for 2 years

<40 trying >2 years > 3 full IVF cycles

40-42: once cycle provided no previous cycles, no evidence of low ovarian reserve and aware of increased risks arising from pregnancy at this age

Only recommended if BMI 19-30

- 40% of IVF cycles in 2012 were NHS funded

- CCGs: area specific criteria: some refuse in any circumstances ‘postcode lottery’ – common restrictions include ‘unexplained problems only, longer waiting times before Tx offered, more stringent age / BMI restrictions, smoking history, no partner must have another living child'


Should children know their donor parents?

Donor anonymity: HFEA 2004 – any child from gamete donation after April 2005 has the legal right to receive information about donor when they reach age 18. Includes identifying info e.g. name, DOB, physical characteristics and last known address > decrease in number of sperm donors. Does not apply in some European countries / USA – some self-funding couples go abroad.


Is there a right to have a baby?

Article 12 ECHR: ‘right to have a family’ but not absolute right – refusal to fund Tx where clinically less effective may be justifiable in light of limited resources?

- Resources- cost, access, ongoing health needs (same sex couples currently have to pay for fertility treatment on the NHS) – most CCGs do not cover cost of donor gametes irrespective of sexuality.


Same sex parenting rules?

2008: HFEA: same-sex parents can be recognised at legal parents, any conceived after April 2009 both parents can be named on birth certificate and be entitled to PR as long as:
- civil partnership at time of conception, or child conceived via Tx at a licensed clinic;
- for lesbian couple non-biological mother listed as ‘parent’ rather than father – joint + equal PR.


What is surrogacy?


Woman carries baby for person unable to conceive/carry child – legal in the UK

(Traditional: surrogate uses own eggs but sperm from intended father; host surrogacy where eggs and sperm from intended both implanted by IVF).

No 3rd party involved commercially

Advertising not allowed; but charities exist (Surrogacy UK and Childlessness overcome through Surrogacy – CTs). Contracts cannot be made; surrogacy agreement often drawn up between couple and surrogate but not legally recognized.

- Surrogate can only receive expenses; surrogate parents have equal rights to maternity leave

- Legal right to keep child even if not genetically related to them; person who gives birth has PR until 4 weeks after a court order – surrogate can change mind until parental order granted.


Arguments against surrogacy?

Arguments against:
- Commodification of babies
- Potential health risks of pregnancy / birth outweighing virtue of carrying baby for another woman
- Relatives may feel coerced into surrogacy by being unable to say no to a request from someone they love
- Some people feel surrogacy can never be truly altruistic


Disclosing genetic info to family members?

Joint Committee on Medical Genetics (2011): during the consent process for genetic testing a discussion should take place about how results may have significant impact for other family members therefore communication of certain aspects of info recommended.

GMC Confidentiality (2009): if a pt refuses consent to a disclosure, balance duty to make care of your patient first concern against duty to help protect the other person from serious harm’.

Harms of breaching confidentiality should be weighed against the potential benefits; disclosing without consent – loss of trust, if info about results disclosed to children would this knowledge be effective to reduce or prevent ‘serious’ harm?

GMC guidance: sharing genetic info with relatives may enable them to get prophylaxis, preventative Tx/intervention, prepare for potential problems. Could choose to seek testing themselves, make plans for futures – informed choice about children or pre-implantation genetic diagnosis?

- Knowledge of condition could > burden and ‘morbidification’ – victim to inescapable fate

- Offer more discussion and support, ultimately have to respect confidentiality as no medical cure, cannot prevent condition from developing.


Difference between genetic testing and screening?

Genetic testing = testing for specific disease mutation

Genetic screening = identifying individuals who are carriers and could pass genes on to children e.g. CF carriers


Report by Human Genetics Commission on disclosing genetic info?

Broad definition: personal genetic information is any info about the genetic make-up of an identifiable person, whether it comes from DNA testing or any other source (including details of a person’s family history).

Different types of information based on how observable or private it is, and how sensitive it is. Some personal genetic information is not considered private because people can see it, for example your eye colour.

Other information, that is not directly observable, is nonetheless private and a person will want some control over who has access to it. Genetic information of a medical nature (such as disease carrier status, or the results of a DNA test about the type of cancer someone has and how easily it can be treated) is an example of this sort of information.

Having stressed the importance of consent and confidentiality, we have identified some cases when special rules apply. For example, care needs to be taken when children are to be tested for genetic disorders that only cause symptoms in later life; in general such tests should wait until a child can make up his or her own mind about the test. In some cases adults may not have the capacity to give consent to genetic testing and so the decision may need to be made on their behalf.

We make some detailed comments about how best to approach the issue of consent in such cases. Sometimes it may be necessary to test a person after death to help a living relative and we recommend in general that doctors should presume that the dead person would have wanted to help the relative and therefore would have given their consent to post mortem testing. Disclosure of sensitive personal genetic information without consent may be justified in rare cases where a patient refuses to consent to such disclosure but the benefit to other family members or the wider public substantially outweighs the need to respect confidentiality. We would expect this to remain an exceptional situation.”