The Department of Health and CQC are increasing their focus upon termination of pregnancy services. Following The Telegraph secret investigation, which highlighted allegations of clinics agreeing abortions on the ground of gender of the foetus, the Chief Medical Officer wrote to all NHS Medical Directors and independent sector abortion clinics reminding them of their obligations under the relevant legislation and guidance. CQC then undertook a programme of unannounced inspections of private and NHS clinics.
Reports indicate that CQC has identified non-compliance with the law in approximately 20% of the 250 clinics it has visited. Andrew Lansley has warned that enforcement action could be taken against individual practitioners and provider organisations and it has now been reported that CQC will make repeat visits to clinics where concerns were noted.
Whilst initial concerns were over termination on the basis of gender selection, it is clear that the range of issues which providers need to guard against stretches more widely. Providers should carry out a thorough audit of their services, including focus on the following:
- Grounds for termination – only terminations carried out under the grounds set out in section 1(1) and (4) of the Abortion Act 1967 are lawful. Carrying out terminations for any other reasons (including gender selection) constitutes an offence under the Offences Against the Person Act 1861, punishable by imprisonment upon conviction.
- Pre-completion of medical opinions – it has been reported that the recent CQC inspections have highlighted particular concerns with medical practitioners completing Certificate A forms (confirming their opinions as to the need for termination) before the pregnant woman’s consultation has taken place. Such pre-completion of the forms is a serious matter and, again, could render the abortion unlawful and those involved liable to prosecution under the Offences Against the Person Act.
- Standard of completion of the forms – even in cases where the grounds for termination are legitimate and the Certificate A forms are completed after the consultation has taken place, the Abortion Regulations are prescriptive as to the information which needs to be included in the Certificates of Opinion. Providers therefore need to ensure that the forms have been completed appropriately (for instance with each of the medical practitioners indicating whether or not they have seen and examined the pregnant woman). The Regulations also set out the timings within which the Certificates need to be created, the length of time they need to be preserved and the notifications which need to be given to the Chief Medical Officer following the termination. Providers need to check that the medical practitioners’ Certificates of Opinion and notifications given to the Chief Medical Officer comply with the requirements of the Regulations, as failure to comply with the Regulations can, itself, be an offence, punishable by a fine.
- CQC (Registration) Regulations – for independent sector providers, there are additional requirements set out at regulation 20 of the Care Quality Commission (Registration) Regulations 2009.
In addition to the implications for individual practitioners both in terms of criminal liability and fitness to practice proceedings before the GMC, non-compliance also has serious implications for the provider organisations themselves. Providers may face withdrawal of the Secretary of State’s approval of their premises (in the case independent sector), criminal proceedings for non-compliance with the Abortion Regulations, and/or enforcement action by CQC, ranging from prosecution through, ultimately, to cancellation of registration under the Health and Social Care Act 2008.
Given the range of sanctions which may arise, and the focus on these issues by the Department of Health and CQC, it is clearly essential for providers to ensure, and monitor ongoing compliance with these issues.
If you require any further information and/or assistance in connection with any of the matters discussed above, please contact: