MEDICAL TERMINATION OF PREGNANCY BILL [now ABORTION (No. 2) BILL]

§ VISCOUNT DILHORNE

My Lords, the noble Baroness who has just sat down spoke with great sincerity, but there was little in what she said which had not been said when we discussed this matter before. We finished the Committee stage on July 26, and no one can dispute that there has been ample time to table Amendments for the Report stage. Yet it was not until last Saturday, after the Marshalled List of Amendments had gone out, that this Amendment appeared. I expect that a great many of your Lordships did not know that this matter was going to be debated again until to-day. I do not suggest that there was any deliberate design to spring this Amendment on the House so late as to take its opponents by surprise; I am sure that was not the reason. But I cannot see that there was any adequate reason for delaying tabling the Amendment. It could have been thought that the noble Lord, Lord Silkin, was going to raise this issue again. If that was thought, it would have been easy to find out from the noble Lord whether or not he was going to do so.

We debated this matter for more than an hour on the Committee stage, and at the end of the debate this House expressed its opinion in no uncertain terms. The words which it is now proposed should be deleted from the Bill were carried into it by 116 votes to 67. The noble Baroness, Lady Stocks, the noble 1399 Lord, Lord Platt, and the noble Lord, Lord Amulree, all voted against that Amendment. My noble friend Lord Selkirk did not vote then, but no doubt we shall provide him with an opportunity of doing so to-day.

I have said before and, in view of the reference by the noble Baroness to "wrecking Amendments" and the action of the poisoner, I should like to say again, that I am one of those who want to see legislation, and good legislation, on this subject. There are a great many matters still to be discussed. I make no complaint that Lord Silkin should have thought it reasonable to ask this House to consider on Report an Amendment that was carried by only that one vote. I say that I hope the decision on that Amendment will be the same. But now, at this late hour, when time is very short, we are again having a debate on an issue decided by a substantial majority in Committee, and an issue which the sponsor of this Bill, Lord Silkin, did not himself decide to raise. It is bound to take more time. There are only three more days for this Bill to get through all of its stages in this House and another place. Although the noble Baroness may describe the Amendment which was carried in the Committee stage as a "wrecking Amendment", I think it perhaps more appropriate to describe this present Amendment as a one that is contributing largely to wrecking the Bill's chances. I should like, if I may, although I know that I have spoken a great deal on this Bill, to remind the House of one or two matters, because this Amendment made in the Committee was moved by me.

There are I think two main arguments advanced in favour of the Bill. One which the noble Lady did not advance today is the desirability that the law should be embodied in a Statute and that the legality of abortions should depend not on directions of judges summing up to juries, but on the terms of the Statute. I think that is a good reason. The second main argument touched upon by the noble Lady to-day, and previously, was that if we pass this Bill there will be a great reduction in the number of back-street abortions. My Lords, I hope that there will be a reduction, but from all I 1400 can find out experience in other countries does not show that to be the case. Relaxation of the law about abortion has led not to a diminution but, indeed, sometimes to an increase in illegal abortions, because people say, "if that can be done in hospitals, why can it not be done in private, in secrecy, without people getting to know about it?"

I have seen a study called Therapeutic Abortion, written by Dr. Kolstad and published by the Oslo University Press. Dr. Kolstad, I gather, was a keen advocate of a liberal abortion law. He quotes in his study that the experiment made in Russia in the 1920s led to such a startling increase in the number of legal abortions that separate hospitals had to be established for this purpose alone, while (and I quote) "at the same time the number of illegal operations rose".

I am told that in Germany it has been found that legalising abortions has led not only to a rise in the number of legal abortions but also in the total number of criminal abortions. And in Sweden, too, there has been no reduction in the number of illegal abortions.

I should like to remind your Lordships at the beginning of this debate to-day that the Council of the Royal College of Obstetricians and Gynæcologists produced a report on this, published on April 2, 1966. In their Report they say: There is evidence to show that except in those countries where abortion on demand and without inquiry is permissible, the legalisation of abortions often resulted in no reduction, and sometimes in a considerable increase, in the number of illegal abortions". They go on to say that the effect of relaxing the law has been that: Women are increasingly ready to have pregnancies terminated and potential criminal abortionists less reluctant to help". There is also Japan, Hungary and Czechoslovakia, and I can refer to passages showing that the position is much the same there. While I hope that the enactment of legislation of this kind will contribute to the reduction of back-street abortionists, it is, I think, a fallacy for the noble Lady to argue that if this Bill is passed a reduction will necessarily follow. I say that for this reason: that that was the foundation of the noble Lady's argument against what was done in Committee. She said that we should be throwing back the cases on to the 1401 back street abortionists. Whether or not the results of the legislation would be to reduce the number of back street abortions, surely what would be quite wrong and indefensible would be to make this Bill a vehicle for use by the professional abortionist?

The noble Baroness said that just as two doctors might get together, so might a doctor and consultant misuse the spirit and intent of this Bill. I do not deny that this could happen. I do not suggest—I do not think I have ever suggested—that the insertion of this provision was a complete safeguard against abuse. I do not put it as high as that, but I do say that in my belief there is far less risk of collusion, of what was called the "Harley Street racket", developing throughout the country if you have the requirement that one of the two opinions must be that of a consultant employed by the National Health Service. The Amendment moved in Committee did not limit it only to consultants; it could be anyone whose name was on the list approved by the Minister. The noble Lady is shaking her head, but that was the Amendment. It may be that the Minister will not operate that. He said he did not like it, but if it is inserted in the Bill we can apply pressure on him to operate it.

What are the arguments against operating it? Why should it not be operated if there is shown to be a shortage of consultants? In an area where there is a shortage of consultants it would not be very invidious to draw up a list, but that is the argument suggested. In my profession a distinction is drawn between juniors and Silks. In some cases the opinion of a Silk is taken as well as a junior. In the medical profession there is no such division. What I want to secure is that one of the two opinions obtained should be the opinion of someone who has reached a degree of eminence in his profession. I put forward this Amendment in Committee because it seemed to me to be an improvement, and a real improvement, on the Bill as it then stood. I hoped that the Government between Committee stage and Report stage would come forward with a suggestion of their own to meet what was the clear wish of this House on Committee, that this Bill should not provide opportunities for a 1402 doctor's racket. That has not happened, so we are left with this Amendment.

I suggest to the House that it is better to keep the words of this Amendment in the Bill, rather than to leave it wide open for doctors, newly called doctors, to engage in a racket. I would also ask your Lordships to bear this point in mind. If this Amendment is carried, if two doctors say they are of the opinion, in good faith, that the matters dealt with in paragraphs (a) or (b) are there, and they stick to that opinion, I do not see how there is ever likely to be a prosecution of a doctor for committing an illegal operation, because even though the opinion may be wrong, it will not be enough to prove that. You would have to prove that it was an opinion given in bad faith. Even if it was proved that a particular doctor, or the two doctors, had been engaged in thousands of abortions, that would not suffice, you would still have to prove that that particular opinion, in relation to that particular woman, was given in bad faith. So as I have said before, whether the Amendment is carried or not, this Bill is placing a tremendous trust in the medical profession. And I feel that, when you are placing this trust in the medical profession, there is a great case in favour of saying that one of the two doctors who has to give this opinion must be a doctor of such eminence that he holds the appointment of a consultant or is on a list approved by the Minister.

As the Bill now stands, it is true to say—and I am afraid it escaped my notice for a long time—that it is made a condition that one of the two doctors who gives that opinion has to perform the operation. I think it would be right, perhaps, if your Lordships would allow me, to say that I shall seek on Third Reading (because I only "spotted" this flaw a little time ago) to move an Amendment to make it permissible for two doctors to give the opinion and a third registered medical practitioner to operate. That, I think, would relieve a great deal of the burden to which the noble Lady drew attention and which she said would fall upon consultants. But, however that may be, when the noble Lady says that this is a wrecking Amendment she ignores the letter which appeared in The Times, written by the Chairman of the Royal College of 1403 Obstetricians and Gynæcologists, and signed by the Chairman of the British Medical Association. They did not regard this as a wrecking Amendment; they regarded it as a great improvement of the Bill. I believe it is, and I ask the House to adhere to its decision.

§ LORD BROCK

My Lords, there has been much inaccurate thinking, speaking and writing about this matter. First, I find it difficult to understand how anyone can object to one of the doctors concerned being of that highest grade of training and experience that an appointment as consultant under the National Health Service would in most cases indicate, as has been emphasised by the noble and learned Viscount. The Bill provides a mechanism for the recognition of those practitioners who are competent to advise but who are not employed as consultants under the National Health Service. This mechanism is permissive and not obligatory; and I feel it is not necessarily relevant for the Minister of Health to declare that he does not wish to have the responsibility of compiling an appropriate list. Comparable selection occurs in certification of the insane.

Secondly, much that has been said and written shows that there is a gross misunderstanding in the minds of many about the significance of what would be involved in one of the doctors being in the National Health Service. It is thought that if a consultant is employed under the National Health Service he must inevitably be consulted under the conditions of the National Health Service, and that this will prevent patients from seeing him privately. It is stated also that this will cause further congestion and delay in hospitals. This is just not so. The Bill does not state that the consultant must be employed full time under the National Health Service, and any consultant who is not employed full time can accept private patients. Indeed, so also can a full-time consultant, except that he cannot personally retain a fee for doing so. Many full-time consultants do, in fact, see and treat private patients under these conditions.

We have been told that consultants are few and far between. I find it difficult to understand this, because the official 1404 figures published by the Ministry of Health state that there are nearly 9,000 consultants in the National Health Service, the actual figure being 8,737, and some two-thirds of these—that is, nearly 6,000—are part-time; therefore no restriction of choice results from the Bill's insisting on one doctor being a consultant. The situation will in fact be exactly the same as now in regard to the availability of consultants who are part-time or whole-time. The present clause will not make for congestion or delay, but it will tend to check collusion between two doctors in partnership recommending an abortion and working a racket, and it will also help to ensure a higher standard of advice—and, I may point out, a higher standard of treatment of the pregnant woman.

§ VISCOUNT WAVERLEY

My Lords, in considering this Amendment I wish to confine myself solely to the proposition that, if it is accepted, any two doctors of general practitioner status will be able between themselves to terminate a pregnancy on medical grounds. There are, in my view, three basic grounds for opposing this Amendment. The first one, which has been eloquently and cogently argued on previous occasions, and again to-day by the noble and learned Viscount, Lord Dilhorne, is the real and very grave danger of collusion. This is an undoubted and very grave risk. Perhaps some of your Lordships may have addressed your minds on previous occasions exclusively to that particular aspect—this risk of collusion. As I see it, there are two further grounds which are of immense importance.

The first of these is the lack of professional skill to perform this operation safely. I am assuming now that we should be considering the operation of dilatation and curettage, which is normally used to terminate a pregnancy up to the twelfth, and sometimes up to the fourteenth, week. Dilatation and curettage is an operation performed routinely by gynæcologists, very frequently for diagnostic purposes, in non-pregnant women—for example, women who may be suffering from abnormal vaginal bleeding, to try to exclude the occurrence of, for instance, uterine cancer. This operation requires skill and it requires constant 1405 practice, even in those circumstances. But it is safe then. In pregnancy, however, there is quite a different situation, because here the wall of the uterus is friable and fragile; it is quite unlike the wall of the uterus in a non-pregnant woman. It is very easy to perforate, even in the most expert hands, with all the grave risks of peritonitis and the attendant complications.

All the gynæcologists I have consulted have emphasised this risk and the difficulty, even when in full practice, of doing dilatation and curettage with complete safety in a pregnant woman. It seems that doctors who are not gynæcologists never perform elective dilatation and curettage, and would ordinarily be totally inexperienced. So much more the risk if they attempted the operation in the special circumstances of the pregnant uterus. It would seem to me to be only relatively safe in the hands of doctors, other than gynæcologists, who have become unusually—and, may I say, suspiciously—adept at the performance of this operation in pregnancy. How would such doctors have acquired this expertise? I leave your Lordships to ponder that.

Second, the danger and grounds for not accepting this Amendment embrace not only lack of skill but also lack of knowledge or special experience on the part of the doctors. May I quote illustrative cases? Take a woman who is known to have heart disease of rheumatic fever origin. She becomes pregnant and develops heart failure in the first few weeks of pregnancy. She is gravely short of breath, fights for breath nightly, cannot lie flat in bed owing to distress. This might seem a cast-iron case for termination of pregnancy. But such a patient may have an obstructed valve amenable to correction by a cardiac surgeon, permitting a normal pregnancy, a normal confinement and normal post-natal life. I see such a patient about once a year; but in the country, of course, such cases are very common.

Or take, again, paroxysms or rapid heart rate in pregnancy—acceleration up to 150 or 200 in the minute. This is extremely alarming for the patient, because it is also attended by severe shortness of breath and attacks of faintness, with perhaps loss of consciousness; and these attacks occur, maybe, many times a 1406 day. This, too, could all too readily be regarded, in inexpert hands, as an unequivocal reason for termination of the pregnancy. I see a number of these patients in a year. It is, however, a complication of pregnancy itself: it betokens no underlying heart disease; it is easily treated, and attacks can be prevented by the use of appropriate drugs. Perhaps these two illustrations, out of numbers of others which I could give your Lordships, may cause you to pause before conferring on any two non-specified doctors the right to advise and perform termination of pregnancy.

§ LORD AMULREE

My Lords, I should like briefly to say a word in support of this Amendment which has been moved by the noble Baroness, Lady Stocks. I had intended to say a great deal more, but most of the points have been made by her and therefore I will not take up your Lordships' time. If we pass this clause unamended I feel that it will inevitably lead to it becoming more difficult for women who quite rightly require abortion (I am not talking about anyone getting it done improperly, but about those who need abortion on perfectly lawful grounds) to get it, because the time factor will be considerably prolonged if they have to see consultants, whether privately or in a hospital. Indeed, a number of these patients will not want to go to see their consultants privately, and they will have to wait a long time, whereas I think I am right in saying that if an abortion is going to be done, for any reason, the sooner it is done the better it is for the patient. It is for that reason that I put my name to this Amendment, and it is for that reason I very much hope your Lordships will support it in the Division Lobby.

If we are going to put restrictions upon the type of doctor who is going to see the patient it will lead to more work for the back-street abortionist. If we are to mention a doctor at all, I think it should be remembered that the one doctor who knows something about the patient is her own private general practitioner. He would be the first person she would consult. He would know more about her general circumstances, physical and mental, and her surroundings, and he would be able to take appropriate action to get advice on the 1407 termination of that pregnancy if he thought fit. If such work were hedged around with restriction of the type now in the Bill I feel sure that the Bill would defeat its object. I ask for your Lordships' support for this Amendment.

§ LORD SOPER

My Lords, I very much hope the Amendment will be supported. I am not impressed by the argument that because at an earlier time the various arguments have already been deployed those arguments in favour of the Amendment are necessarily now invalid. There is perhaps a time-lag between truth and its acceptance, and there is certainly a requirement to think very much more deeply on this particular issue than I personally did when this matter was before your Lordships' House on the former occasion.

My own interest in this particular Abortion Bill is not first of all concerned with the promiscuous youngster of fifteen or sixteen years of age, and it is not first of all concerned with the frivolous wife who is pregnant by another man. I am concerned with the 80 per cent. of all abortion cases which arise in respectable conditions of married life and are concerned with the intolerable (it is thought) prospect of yet another child, and that is why in another place I should be concerned about the social clause. My main concern is whether this particular Amendment will help such pregnant women or will hinder them. I find a great deal of difficulty in reconciling what has been said in your Lordships' House to-day about the number of consultants with what was said in a letter to The Times this morning. There is a great deal of difference between 740 suitable consultants who are available and dispersed unequally throughout the country, and the somewhat astronomical figures to which we have just listened, of 4,000 or 5,000, although I do not know what relevance is attached to that. It seems to be beyond dispute that there will inevitably be delay; and in the early stages of pregnancy delay is a devastating experience for a woman, particularly if she is oppressed by the intolerable prospect of having yet another child.

It seems to me to be inevitable, as has already been said by the noble Lord, Lord Amulree, that there will be a restric- 1408 tion, and therefore, as a matter of commonsense, I have no doubt that there will be references back to the back-street abortionist as the pis-aller, when time is of the essence and every day adds to the intolerable burden. That is the major reason why I believe this particular Amendment should be carried. I think that possibly there are qualifications that should be required, and I believe that in some countries it is enacted that the two doctors involved must not be conjointly employed in the same practice. I think that would be a reasonable condition, but not this particular condition which, on the evidence coming to me, will dangerously delay the prospect of an abortion for those entirely admirable people whom I want to help, and I am sure your Lordships want to help.

We want to see the establishment of a decent, right and helpful procedure whereby an unwanted and intolerable burden will be avoided. It is in order to reduce the amount of suffering that is now endured in this way that I think this Amendment ought to be accepted, and perhaps afterwards we should think again about safeguards which may well be required in order that the rackets—which I think have in any case been exaggerated—may not be perpetuated.

§ THE EARL OF SELKIRK

My Lords, I apologise for not being present at the previous stage of this Bill. I have put my name down to this Amendment for much the same reason as the noble Lord, Lord Amulree, that the clause as it stands appears to me to be restrictive—restrictive in quantity rather than in quality. I do not mean that it is not good advice to say that one should go to the finest adviser one can, although it is a curious arrangement which makes one do so under a criminal sanction. What worries me is the statement that there are 9,000 consultants. Are we really clear who consultants are, because the figure published is 1,400, and the figure for those in part-time practice is much lower. This raises a very real question.

My noble friend Lord Dilhorne said that he wanted to see a Statute with the terms clearly laid out. It is abundantly clear that what is or is not a legal abortion depends on another Statute. It depends on the National Health Insurance 1409 Act, and if that were amended the law in regard to abortion would equally be amended. I would not object to a clause of this character which specified the qualification of the doctor concerned. What I object to is the distinction between those practising under the National Health Insurance Act and those not. I believe this to be a wholly unreal distinction, and my noble friend Lord Dilhorne rightly made no effort to defend it. It is an improper distinction which has not previously been made, and which I do not think should be made in these circumstances.

§ VISCOUNT DILHORNE

Will the noble Earl forgive me for interrupting? I certainly defended it on the ground that that was one way in which one could distinguish members of the medical profession who had reached some degree of eminence in their profession. If he can suggest any other way to distinguish between junior and senior members of that profession, perhaps he will state it.

§ THE EARL OF SELKIRK

My Lords, I think the noble and learned Viscount has made it worse. He has now made an invidious distinction as if one is superior to the other. My distinction is that of qualification, that a man is a gynæcologist. Under this it could be an ear, nose and throat specialist. I think this is a defective Amendment. I have never had any objection to having a fight with another place, but I do not want to have a fight on a bad Amendment.

§ LORD CONESFORD

My Lords, I have great respect for the noble Baroness, Lady Stocks, who moved this Amendment. I have never been one of those who was completely happy with the words which she proposes to strike out. But I would remind her of what happened on the last occasion. Far from the general underlying intention of these words being to wreck the Bill, one of the Amendments incorporating these words was moved by the noble Baroness, Lady Summerskill, who is a strong supporter of the Bill. There were three Amendments then before the House. I do not think any of them was perfect, but I think we chose the most nearly perfect of the three and inserted it in the Bill. If the noble Baroness, Lady Stocks, had come 1410 to amend these words in order to improve them, I think the House would have had considerable sympathy.

We now have to choose between having these words in the Bill or having no qualifications whatsoever. To this latter the House by a large majority showed itself to be opposed. I find it difficult also to believe that, if the number of consultants is wholly insufficient, the Minister of Health will take it upon himself to wreck the Bill by refusing to operate it by approving a list. I think it is a serious thing to suppose that that is the attitude the Minister will take. He may not like it, but refusal to operate the Bill is a rather serious step for any Minister to take. But if we have to choose between having no words in the Bill regarding qualification, which is the effect of the noble Baroness's Amendment, and having these words, imperfect as they may be, I think we must choose to have them in. The noble Lord, Lord Soper, and my noble friend Lord Selkirk, both say that, if we strike out these words, the Bill will be defective in their view. Surely we do not wish to carry into law something which we know to be defective.

The final argument for me in opposing this Amendment is the letter signed by the three doctors, who, after all, are writing in an important representative capacity, the President of the Royal College of Obstetricians and Gynæcologists, the Chairman of the British Medical Association Council and the Chairman of the British Medical Association Committee on Therapeutic Abortion. I should have thought those three names were names you simply could not cast aside and say their opinion was of no importance whatsoever. They believe themselves to be writing in the public interest and they are men who are entitled to be heard. On the arguments put forward, when it is clear that the House has the alternative of either resisting this Amendment or having no qualifications of the two doctors set out at all, I believe the House will come to the same conclusion as it did on Committee stage.

§ LORD FERRIER

My Lords, I believe that all noble Lords, or nearly all, here are anxious that this Bill should not fall by the wayside. Being one of those who in July voted for the Amendment which introduced the words now in the Bill, I 1411 should like to say I have now an open mind, very much in the light of what the noble and learned Viscount, Lord Dilhorne, has said. While admitting that these words were passed in July, time has gone by. I must admit, and I think the noble Lord, Lord Silkin, will agree, that I always expected an Amendment of this sort to appear at this stage of the Bill. Therefore I was glad to hear the noble Baroness, Lady Stocks, put forward this Amendment. But, as I say, I have an open mind as to how to vote, because it seems to me there is one piece of information which is lacking to all of us.

With great regret, we have to admit that doctors disagree about this subject. What the noble Lord, Lord Conesford, said is perfectly correct. Three eminent doctors have published their views; but other doctors have published other views. It is fair also, I think, to answer one or two of the things the noble and learned Viscount said. Not only has time gone by since July, but I believe that that has given the Government an opportunity to examine the clause as it is now in the Bill. I think they ought to tell us whether the proposal that National Health Service officials should be mentioned in this clause is feasible. I think we should also know whether there will be an attitude in the Health Department that they are not going to nominate other than National Health doctors; because when I voted for this wording in the Bill I was actuated more by the need for the welfare officer to be concerned in considerations relating to the waifs and strays type of abortion than about the qualification of the doctors involved in the sort of abortions to which the noble Lord, Lord Soper, referred and which are the great majority of the abortions which come into the hands of the doctors.

It is wrong, in my view, to say that to amend the Bill again would be to enable doctors to have a racket. I would read from a paper called Sterilization and Therapeutic Abortion in Aberdeen, by Professor Sir Dugald Baird, published in the Journal of Psychiatry in July, 1967. He says: Under the common law of Scotland it has for long been possible for a doctor acting in good faith to perform therapeutic abortion where, after a careful study of all the circumstances of the case and after due consultation with colleagues, he decides that the dis- 1412 advantages of continuing the pregnancy are greater than those of ending it. We therefore have in Scotland freedom to practise medicine in this sphere as in all others according to our clinical judgment. Does any noble Lord say that because this is the case in Scotland there is a racket there in abortion? It just is not so, and I do not think it would be so here in this country if the Bill went through with these words expunged, as proposed by the Amendment.

Before I myself, as a Back-Bencher, feel I can apply myself to a decision whether to vote or not, I should like to know whether by including these words in the Bill as it now stands we make it impossible for the Bill to be carried out either properly or, what is more important in a matter of this sort, without delay. This is not a matter where you can hang about in a queue to await an appointment. This is something which has to be done at once. If we do not want this Bill to fall, then please may we know what the actual practical logistics of the matter are? If these words are left in the Bill, will it render it abortive or will it cause delay?

§ THE LORD ARCHBISHOP OF CANTERBURY

My Lords, when, some months ago, your Lordships' House in Committee inserted the words which we are now discussing, some of us supported the insertion of the words for two reasons which have been mentioned several times this afternoon. One was as a measure of preventing a racket by particular doctors, and the other was to ensure the highest standards in connection with abortion. Those reasons still seem to me to stand.

If any other consideration has been brought up, perhaps not for the first time, but more forcefully than before, it is the plea that consultants are so scarce, or so inaccessible, that if these words were in there would be so much delay in decisions about abortions that many women in most unhappy circumstances would be driven to back-street abortions. I feel quite ready to listen to a plea of that kind, and to let it be decisive, if the facts are really thus. And if the facts have to be thus, is it really true that consultants are so inaccessible, viewing the country as a whole?

Furthermore, it is most important to ask: is it beyond the power of the 1413 Ministry to see that if the Bill were passed in this form the necessary provisions were made throughout the country? If a Bill were passed legalising abortions in certain conditions, and calling for the services of doctors of a certain standing and official status to be involved, would it not be the duty of the Government to see that what the Bill asked for in the words now in it was provided extensively? Is it possible to have a social reform like that envisaged in this Bill without commensurate executive action on the part of the Government to see that it works really well? It is considerations like that which make me feel that Lady Stocks has not succeeded in making out her case, because we have not full enough information that the consultants and others mentioned are so scarce, or need be so scarce and inaccessible if the Bill were passed.

§ LORD BYERS

My Lords, before the most reverend Primate sits down, may I ask how he proposes to create these "instant" consultants?

§ THE LORD ARCHBISHOP OF CANTERBURY

I am not proposing to create anybody. I am asking whether it is really true that there are so few of them; and also, whether it is beyond the power of the Government to give their certificate in sufficient quantities to meet the needs of the Bill?

§ THE EARL OF CRANBROOK

My Lords, might I ask the noble Lord what is the average waiting list on the average consultant's list under the National Health Service? That would give us a good idea of how long the wait would be.

§ LORD KINDERSLEY

My Lords, may I intervene for just one moment? Figures have been talked about, on the one side of 1,400 consultants, on the other side of 8,730. As Chairman of the ruling body of doctors and dentists, I would say that if anybody thinks that there are only 1,400 consultants in this country he must be off his head. That figure does not resemble the number of consultants at all. I am not referring to gynæcologists and so on, but to "consultants", as they are described.

§ LORD SILKIN

My Lords, a good deal of discussion has taken place as to the actual number of consultants available. I am going to leave that part of the matter to my noble friend who speaks for the Ministry of Health. But, of course, there are consultants and consultants. A consultant who is concerned with something quite different from this subject is not going to improve the conditions of the operation at all. We are talking of those who are qualified to carry out an operation of this kind. But I will not pursue this aspect because I know that my noble friend is prepared to deal with it.

A good deal of the opening part of the speech of the noble and learned Viscount was directed to complaining about the fact that this Amendment should be on the Marshalled List at all. He said that it had been adequately discussed in Committee. I hope he will apply that doctrine to his own Amendment. He has down an Amendment which also was adequately discussed in Committee and was defeated. He has it down again to-day—I think it is Amendment No. 6. At any rate, it is the Amendment dealing with handicapped children. It was handsomely defeated in Committee, but the noble and learned Viscount has it down all over again. What is sauce for the goose is sauce for the gander, and he must not complain that my noble friend should put down an Amendment when he is doing exactly the same thing.

We are all, of course, entitled to think again on this vitally important subject. This Amendment goes to the root of the Bill. I would remind your Lordships of the purpose of the Bill. At the present time it is possible for an abortion to take place quite lawfully by one doctor alone, if he believes that it is for the benefit of the health or life of the pregnant woman. This Bill provides, as a safeguard, for two doctors. To that extent, it goes a long way towards what most of us felt was desirable: that there should be a second opinion. The issue we are now discussing is what is the nature of that second opinion to be? The noble Viscount, Lord Waverley, was, I think, in error in talking about the quality of the person who carries out the 1415 operation. That is, in any event, determined in the Bill: he must be a hospital doctor. What we are concerned about is, who should be the people who give the opinion?

§ VISCOUNT WAVERLEY

No. With great respect, as I understood it the operation of dilatation and curettage could be done by one of the two doctors not necessarily a hospital doctor at all. Certainly, it being a skilled operation, the operation for the termination of pregnancy after the 12 weeks period by abdominal operation necessarily, one would hope and expect, would be done by a qualified gynæcologist.

§ LORD SILKIN

My Lords, I must confess that I am out of my depth in this technical language, but the Bill makes it quite clear that the actual operation has to be carried out by a hospital doctor.

§ VISCOUNT DILHORNE

My Lords, may I say to the noble Lord, that it was to meet that point that I announced that I was going to move a Manuscript Amendment on Third Reading? The noble Lord has said that I have put down an Amendment on which I divided the Committee. I have looked through Hansard, and certainly I did not divide the Committee on any Amendment that I propose to move to-night.

§ LORD SILKIN

My Lords, I am astonished to hear that.

§ VISCOUNT DILHORNE

It is the fact.

§ LORD SILKIN

My Lords, I do not want to pursue that. I shall have a word to say when the Amendment is called. But I would remind the noble and learned Viscount of the Amendment that he did move in Committee, and which he has put down again for a second time.

§ VISCOUNT DILHORNE

My Lords, the noble Lord says that I moved and divided the Committee on an Amendment which I have put down again. I have not again put down an Amendment on which the Committee divided.

§ LORD SILKIN

Well, we shall see. I do not withdraw that suggestion, but I will come back to it at a later stage. I merely wanted to point out that the noble and learned Viscount had no right to rebuke my noble friend Lady Stocks for put- 1416 ting down this Amendment, because it goes to the root of the Bill, and if the Amendment which was carried in Committee stands it will wreck the Bill; it will make the position of the person whom we are setting out to help far worse than is the position to-day.

§ LORD CONESFORD

My Lords, would the noble Lord allow me to intervene? He says that there is provision in the Bill that the actual operation must be performed by a competent man. I wonder where he finds that provision.

§ LORD SILKIN

It is in subsection (2): Except as provided by subsection (3) of this section, any treatment for the termination of pregnancy must be carried out in a hospital vested in the Minister of Health or the Secretary of State under the National Health Service Acts, or in a place for the time being approved for the purposes of this section by the said Minister or the Secretary of State. So that in the cases to which I was referring the operation has to be done in a hospital and, therefore, by a person engaged in the hospital to carry out these operations. At any rate, that is the contention which I am putting forward.

A great deal is being made of the danger of collusion, and I should like to examine more closely what the danger really amounts to. Is it that two partners in a practice will start up a racket of freely giving authority for abortions to take place? In the vast majority of cases these are panel practices; the patient will come as a panel patient and cannot be charged a fee. The patient knows perfectly well that it would be quite unlawful for the doctor to ask for a fee in consideration of approving an abortion. There may be other cases involving paying patients, but by and large the paying patient is not the problem. The patient who can pay has been able to find her way to Harley Street or to other places and get an abortion when required. The person of whom we are thinking is the person who cannot afford to pay and does not expect to pay. It is that person who it is alleged will be able to get an abortion as a result of collusion.

What is the incentive for the two doctors in partnership, or for any other doctors, to collude? Surely, if they cannot charge a fee for collusion there is no incentive whatsoever. I am rather tired of hearing all this about collusion 1417 on the part of professional people. I have heard it so often about my own profession. Quite often people come to me and complain about their former solicitor, saying that he has been in collusion with the other side. In all my long experience I have never come across such a case. I have even heard it said about counsel, that counsel has been bought off by the other side not to present the strongest possible case. People are so inclined to talk freely about collusion in the case of professional men. I do not believe that it exists among doctors to anything like the extent suggested. I have never actually heard of a case. I have heard of cases of Harley Street people holding themselves out as available to carry out an abortion at present and doing so without a second opinion. I suggest that to have a second opinion would make the position rather more difficult than it is at present.

Then it has been said that the number of doctors available to carry out this operation is so few that it would result in women being deprived of the opportunity of abortion even though so entitled under this Bill. If that is so, is this provision not a wrecking provision which will render the objects of the Bill quite nugatory? It may be possible to get over this difficulty in London, but there are large parts of the country where it is quite impossible to get a consultant as required under the Amendment which has been passed. These women, even if they comply with all the conditions and requirements in the Bill, will in practice be deprived of the opportunity of getting an abortion.

Therefore I would ask noble Lords, even those who voted for the Amendment in the first instance, to think again. I ask them to think again, first, as to the possibility and likelihood of collusion and, secondly, as to the risk that women who are in a desperate situation and who are entitled to have an abortion within the terms of the Bill will not be able to get one for lack of the necessary skilled person or that there will be delay to such an extent as to render the operation more dangerous. In those circumstances I would ask your Lordships to reconsider the vote which you gave on the last occasion in July and to vote to-day for this Amendment.

§ LORD KENNET

I am confident that I speak on behalf of the House in welcoming back the noble Lord, Lord Silkin, and in saying how happy we are that he is well enough to take this Bill through. It falls to my lot to give your Lordships the view of my right honourable friend the Minister of Health on this Amendment. The matter is, of course, one for the House, but there are certain facts and considerations which he would be glad the House should take into consideration. Many speakers have asked about the numbers of consultants. The situation is that last year there were 8,737 National Health Service consultants in the country, not all of them full-time. If one deducts the part-time hours, one gets to a full-time equivalent of 7,136. Those consultants were consultants in all specialties. During that year there were 521 consultants in obstetrics and gynæcology. Those 521 were full-time consultants. If one makes a reduction for the part-time element, I am afraid that I cannot give the House the precise figure equivalent to the reduction I gave in regard to the overall figure, but it would come to less than 521.

The question was asked: if a consultant has to sign, will there be a bottle-neck in getting to the consultants? It is impossible to say with any certainty whether there will or will not. It depends upon factors such as how scattered they are throughout the country, how hard they work; and it depends upon many things about which one can obtain no certainty. But I could certainly not put my hand on my heart and say that no bottleneck would be introduced by the enforced employment of these 521-minus consultants in this field.

It was also asked: what is the present delay in getting hospital beds? Of course, the figure varies very much. I think the figure which your Lordships may find most relevant is that in gynæcological departments of N.H.S. hospitals the average delay in getting an operation—not in emergency cases—is at the moment about six weeks. So we have six weeks at the moment and 521-minus consultants.

Of course, the clause as it stands contains the other provision that if a consultant is not readily available the woman 1419 in question may have recourse to somebody on a list maintained by the Minister of Health especially for the purpose. It has been stated repeatedly in this House and in the other place, that the Minister of Health is unwilling to undertake this function. One may ask oneself: why is this? Is there a precedent? I have had the precedents combed through in order to get some background on this, and the closest precedent I have been able to find is a list which the Minister maintains of those who are allowed to practise as ophthalmic medical practitioners. He has the advice of a committee in maintaining that list, and if a doctor gets on that list then he has the right to carry out sight testing in the National Health Service.

There are also persons not holding medical qualifications who have the right to do this sight testing—that is, ophthalmic opticians—and the purpose of this list is simply to ensure that the mere holding of a medical qualification does not debar one from doing something which can already be done by a non-medical person. The analogy is not at all close. There is no medically unqualified person legally carrying out abortions, nor is there going to be. Therefore this analogy, which is the closest I can find, is not at all close in this matter. The point here is that no Minister of Health has ever arrogated to himself the right to say, "This class of doctor shall carry out a surgical operation, and that class of doctor shall not", and the present Minister of Health is unwilling to be the first to arrogate to himself that right.

I should like to turn now to two other considerations which bear on the desirability of passing the Amendment now before the House. On the question of collusion and rackets it has been said—and it stands to reason—that although one can be certain that a consultancy indicates a superior degree of medical skill and experience, one cannot be absolutely certain that it indicates a superior degree of morality and social conscience. On this point, also, we should not forget the provisions later on in the Bill about the certification of opinions, the notification of operations and the specification of places in which they can be carried out.

I should like to remind the House how this works. One of these two doctors 1420 has the opinion, formed in good faith, that there ought to be an abortion, and he must certify the fact to the Ministry. If one of them then carries out the operation he must notify the fact to the Ministry, and he must also notify various details, to be specified later in regulations, about that operation. Any conflict between the opinion and the state of the woman as she was found when the operation was carried out will become apparent. Lastly, the operation must not be carried out except in a N.H.S. hospital or in a place specified by the Minister, and this means that it will be carried out according to the usual disciplines and precautions of hospitals and nursing homes authorised by the Minister. It seems that, with all those deterrents to rackets and collusion already contained in the Bill, it might be unnecessary to insist on the presence of a consultant as an added deterrent to collusion and rackets.

Lastly, there is a social consideration about the present doctor-plus-consultant provision. It seems inevitable that this provision would remove the family doctor from the scene. By far the greater proportion of family doctors do not perform abortions; they have no experience, they have no equipment, and they have no premises. Therefore, this means that the family doctor will have to refer the woman to another doctor. This second doctor is either a consultant or is the one who is not a consultant. If the consultant is to carry out the operation—and there are 521-minus of these consultants—that raises a bottleneck. If the other doctor is to do the operation, that means that the other doctor who is not a consultant cannot in the great majority of cases be a family doctor, because family doctors are not used to doing this. Therefore, although I realise that this is not the purpose of the provision as it was introduced, the necessary insertion of the consultant into the scene is bound in the great majority of cases to push the family doctor somewhat into the background.

§ VISCOUNT DILHORNE

My Lords, would the noble Lord forgive me for intervening for one moment on that? It is possible, is it not, by a simple Amendment which could be made on Third Reading, to secure that although the two opinions should be given, one by a doctor and one by a consultant, the operation could be conducted by some other surgeon?

§ LORD KENNET

My Lords, we can debate such a provision at an appropriate moment. At present we have before us an Amendment which would simply leave two doctors without any qualification of consultancy, as compared with the clause which contains the need for a consultant. With all these considerations in mind—and I repeat that this is very much a matter for the House—I would say that, in the view of the Government, the Amendment before the House would be quite acceptable.

§ THE EARL OF DUNDEE

My Lords, may I ask the noble Lord one question, for the purpose of information only? He is bearing in mind, is he not, that subsection (3) of this clause provides that subsection (2), and so much of subsection (1) as relates to the other opinion, shall not apply if a registered medical practitioner considers that the termination is immediately necessary to save life or prevent permanent injury? I just want the noble Lord to make it clear that the advice which he has been giving about bottlenecks, and the place where this is done and so on, does not apply to cases of urgency.

§ LORD KENNET

Yes, my Lords, I was already bearing that in mind. I think that the question of urgency or emergency is something quite separate, and obviously applies only to a very small minority of the cases which we are considering.

§ BARONESS EMMET OF AMBERLEY

My Lords, before the Minister sits down, may I ask him whether it is not a fact that merit payments are made to medical practitioners on a selective basis? I do not know whether this is done by the Minister. But if he has a selective basis there, I do not see what is to prevent his having a selective basis here.

§ LORD KENNET

My Lords, there are many provisions in law and in regulation for certain positions to be held only by certain persons. There is no provision in law for certain operations to be performed only by certain persons.

§ LORD FERRIER

My Lords, are we right in assuming that the figures the noble Lord gave are for England, Wales and Scotland? Also, are we correct in assuming that in those numbers are those medical men who, for conscience reasons, 1422 would not take part in a consultation or an operation of this sort?

§ LORD KENNET

I am sorry, my Lords, but I do not have immediately available the answer to the first question. I will try to provide it later at a convenient moment in the debate. In regard to the second question, this takes no account of those who for conscientious reasons would be unwilling to perform such an operation. The figures apply England and Wales, and not to Scotland.

§ LORD SEGAL

My Lords, of course my noble friend is perfectly right in saying that this House is entitled to change its mind on the decision which it took on July 26. But I think it would be utterly wrong if this House were stampeded into changing its mind by the kind of argument that was used by the noble Baroness, Lady Stocks, who introduced this Amendment by saying that if the House did not reverse its decision on this matter it would be running a risk of killing the Bill. As I see the position, I do not think that any fair-minded jury would ever convict this House of infanticide. I think that by far the greater danger is that this House may be guilty of passing a Bill by means of a precipitate labour, by not giving this Amendment full consideration at this stage.

I feel that our approach ought to be that the paramount consideration is the health and wellbeing of the mother, and I would ask the House: what on earth is the use of obtaining a second opinion if that is going to be of no advantage to the future of the mother, if it is to be given by a doctor with merely the same qualifications as the first doctor, it perhaps being simply a rubber-stamp endorsing of a decision already taken by the first doctor? Why insert this provision for a second doctor's opinion to be required at all unless it is going to be to the advantage of the mother in the sense that it will be a second opinion of some special benefit to the mother in the consideration of her case?

We have been told by my noble friend Lord Kennet, speaking on behalf of the Government from the Front Bench, that the Minister is unwilling to draw up such a list. Apparently the Minister is perfectly willing to draw up a list of places for the time being approved for 1423 the purposes of this action. He has not got a complete aversion to drawing up any list: he seems to have developed a particular aversion to drawing up a list which might be of benefit to the mother who needs extra medical advice. As a matter of fact, there is no need whatever for the Minister to draw up such a list. I think that all those who have the welfare and the health and wellbeing of the mother at heart are aware that there is such a list of doctors, of general practitioners skilled in midwifery, available at the present time. It is a list, approved by the medical bodies, of general practitioners who have certain qualifications in midwifery.

I submit to the House that if doctors are experienced in midwifery, invariably they have acquired experience in the management of abortions. I would ask my noble friend Lord Kennet to guide the House in this respect and to let us know what is the number of general practitioners on the midwifery list to-day.

§ LORD WAKEFIELD OF KENDAL

My Lords, before the Minister replies—

§ LORD SEGAL

I am willing to make way for my noble friend Lord Kennet if he can supply the House with this information. I speak subject to correction, but I think that, in all, this list amounts to something like 5,000 doctors on the general practitioner midwifery list. If it is wrong, I hope this figure may be corrected before we are asked to decide and to vote on this issue. But the point is that if one doctor's advice has been obtained, and if according to the requirements of this Bill and apparently the requirements of the Amendment proposed by Baroness Stocks a second opinion has to be obtained, then, in heaven's name, let us take good care that it will be a second opinion which will be to the benefit of the mother.

§ LORD WAKEFIELD OF KENDAL

My Lords, before the Minister replies, could he please clear up a point which is troubling me quite a lot? As I understand the position, the essence is time; that there ought not to be delay. Surely, from what we have heard, if there is to be a bottleneck anywhere, is it not the bottleneck of facilities and hospital beds rather than the number of consultants? 1424 Am I wrong in that? If the bottleneck is in fact hospital beds and facilities for carrying out the operations, and not consultants, then it seems to me that one of the main arguments for this Amendment falls to the ground. Could we please have information on that point? In the time available, is the bottleneck likely to be consultants or facilities?

§ LORD KENNET

My Lords, we have been a long time on this Amendment, and it is perhaps not for me to speak again about it in any depth. I would say only this: that the midwifery list is not in the clause before the House and it is not in the Amendment before the House. There is no doubt much to be said both for and against giving that list some form of statutory existence, but this is perhaps not the time to do it. On the second point, about whether the bottleneck is likely to be consultants or places, I regret that I cannot give the House any firm information about this matter. Nor can anybody else in the world, because we do not at the moment know how many abortions there are in the country. We do not at the moment know, even, what a legal abortion is. It is our uncertainty about this which causes us to look with such favour upon the Bill now before your Lordships.

§ THE LORD BISHOP OF DURHAM

My Lords, I have an eye on the time, but I think on the matter of figures we ought to be quite clear that, with the Bill as it stands, the consultant is not the man who need carry out the operation. He is not necessarily the gynæcologist. All we had in mind was that he should be a person used to taking responsible decisions, and I suspect that that number of people will be nearer to the 8,000 than to the 500-minus—that is, the other side.

§ BARONESS STOCKS

My Lords, I will take up very little time, but there are just one or two points to which I think I should like to reply. The first is that I should like to apologise to the noble Viscount, Lord Dilhorne, for the fact that my Amendment was tabled so late. It was because I was abroad in Cyprus and out of touch, and not until I came home did I find that no such Amendment had already been tabled. It was not an attempt to take anybody by surprise.

1425 The second point I should like to make is on the question about the Ministry of Health drawing up a list. The Ministry of Health is always very reluctant, and very naturally so, to make any discrimination between the reputed qualifications of one doctor and another. It is an extremely difficult thing to do, and I am not at all surprised at the reluctance of the Ministry to do it.

One noble Lord raised the question of a possible bottleneck in hospitals, but I think it is true to say—perhaps the noble Baroness, Lady Summerskill, will confirm

§ LORD SILKIN

My Lords, it might be for the convenience of the House if my noble friend would be prepared to consider Amendment No. 5, which is to be moved by the noble and learned Lord, Lord Parker of Waddington. I am prepared to ask the House to accept that Amendment; it would save time. I want to be frank: I have not consulted the promoters of the Bill in another place, but I am prepared to take it upon myself to recommend to them that we should accept No. 5. If that were done, it would dispose of a number of Amendments on the Order Paper—and also a number of speeches in support of them. It would dispose of No. 2, No. 3, and of course No. 5, and also No. 12, which would involve an Amendment to No. 9, which would be accepted. If my noble friend is prepared to accept that and the House is prepared to accept it, we can dispose of it without any further ado.

§ VISCOUNT DILHORNE

My Lords, I hope that the noble Lord, Lord Segal, will not accept that suggestion immediately. I think that the suggestion is very useful, but while the test propounded in the Amendment in the name of the noble and learned Lord, Lord Parker of Waddington, is a very good test—as the Amendment stands, it means that the risk involved in pregnancy must b