Woman who sued anti-abortion doctor over brain-damaged son loses her court fight
By Maxine Lattimer,
March 31, 1999

A woman who said a GP prevented her from aborting the pregnancy which resulted in a brain-damaged child lost her High Court action for damages (31/3/99). Michele Johnston, now 33, of Corby, Northamptonshire, sued Dr Sheila Matthews over the birth of her son Sam. He was born prematurely after she had a major hemorrhage in April 1989 and is now suffering from a severe form of cerebral palsy. Mrs Johnston, who has since married, has two other children and is expecting a fourth, was claiming the cost of raising Sam. She told Mr Justice Alliott that the GP wrongly told her she was too late for an abortion at 14-and-a-half weeks and that she did not meet the legal criteria for a termination (that the risk to the woman's mental health from continuing the pregnancy is greater than if it was ended). When she became pregnant through a casual relationship, Mrs Johnston was newly-divorced, bulimic, had recently cut her wrists in a suicide attempt and was planning to go to university. Dr Matthews denied negligence and said she opposed termination as part of her Christian beliefs, but did not allow this to cloud her professional duty. She claimed that always tried to be 'as level and non-judgmental as possible' and appreciated that many people did not share her views. But it was revealed that she had only ever directly referred one patient - a 13-year-old girl - for an abortion, and it was her normal practice to ask a patient who was determined to have an abortion to see another doctor at the surgery. She said it was very, very unlikely she would refer a patient for abortion even in the case of a non-viable fetus. She claimed that she would not have said that it was too late for an abortion as it was not, or said that no one would be prepared to recommend an abortion, as that was not the case. But it was not her view that Mrs Johnston was qualified for an abortion under the 1967 Act as in her opinion she was of an age when she could understand and cope with the pregnancy and was physically healthy.

The judge said that Mrs Johnston's decision to see Dr Matthews rather than her normal male GP, on the basis that she would feel more comfortable with a woman, was 'a choice that was to have profound consequences.' He said 'I have no doubt that if she had gone to see her usual GP, he would have referred her for termination which would have been carried out and this appalling tragedy of the hemorrhage causing Sam's cerebral palsy would have been avoided'. But from the evidence, he was satisfied that Mrs Johnston and her then boyfriend did receive counselling about private abortion from a health visitor after their second consultation with Dr Matthews. However, the couple did not take that opportunity and had undergone a 'change of heart' by the time of the third consultation five days later. The judge said that it followed that Dr Matthews did not represent things in such a way as to prevent Mrs Johnston obtaining a termination, and he rejected Mrs Johnston's evidence that the GP said it was too late for a termination and that it was not a viable option.

But the judge did say that there remained an anxiety that Dr Matthews's opinion that Mrs Johnston did not meet the criteria for an abortion might have been coloured by her moral and religious views. It was apparent, he said, that the medical profession was very alive to the ethical dilemmas posed by those of the GP's persuasion. The arrangement at her practice, whereby Dr Matthews would refer patients set on abortion to a colleague, was a sensible way of disposing of those dilemmas. He suggested, however, that once a termination of pregnancy was recognised as an option, a doctor registering a conscientious objection should refer a patient to a colleague 'at once'.

This court case reflects the one of the major failings of the current abortion law, which is that abortion is only legal if two doctors agree that the woman meets certain legal criteria. Different doctors interpret the law in different ways depending on their personal views of abortion. Some doctors interpret the law liberally and others are much more conservative. The 1967 Abortion Act contains a clause that allows doctors to conscientiously object to involvement in abortion. They then have a duty of care to refer women requesting abortion to other colleagues. Doctors who oppose abortion should exercise their right to opt out of abortion advice and care - this would be more honest and helpful to women seeking abortion who need to be seen by sympathetic and supportive doctors.