Termination of Pregnancy (Medical Defences) Act 1995
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AT 14 of 1995
TERMINATION OF PREGNANCY
(MEDICAL DEFENCES) ACT 1995
Termination of Pregnancy (Medical Defences) Act 1995 Index
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TERMINATION OF PREGNANCY (MEDICAL
DEFENCES) ACT 1995
Index Section Page
1 Defence to charges under section 71 or 72 of the Criminal Code to
preserve the life of the pregnant woman .................................................................... 5
2 Preserving the life of the pregnant woman: examples .............................................. 5
3 Duty to preserve life of child......................................................................................... 6
4 Defences: viability or abnormality of foetus ............................................................... 6
5 Defence to charges under section 71 or 72 of the Criminal Code in cases of
certain sexual crimes ...................................................................................................... 7
6 Provisions supplementary to sections 1 to 5 ............................................................... 7
7 Regulations ...................................................................................................................... 8
8 Interpretation ................................................................................................................... 9
9 Financial provision ....................................................................................................... 10
10 Short title and commencement ................................................................................... 10
ENDNOTES 11
TABLE OF LEGISLATION HISTORY 11
TABLE OF RENUMBERED PROVISIONS 11
TABLE OF ENDNOTE REFERENCES 11
Termination of Pregnancy (Medical Defences) Act 1995 Section 1
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TERMINATION OF PREGNANCY (MEDICAL
DEFENCES) ACT 1995
Received Royal Assent: 18 October 1995
Passed: 19 October 1995
Commenced: 19 January 1996
AN ACT
to provide statutory defences for medical practitioners who terminate
pregnancies in certain circumstances; and for connected purposes.
1 Defence to charges under section 71 or 72 of the Criminal Code to
preserve the life of the pregnant woman
Subject to section 5, a person shall not be guilty of an offence under section 71 or
72 of the Criminal Code 1872 (offences relating to procuring a miscarriage) (in
this Act referred to as “the Criminal Code
”) when a pregnancy is terminated by
a hospital surgeon if that surgeon and an independent medical practitioner are
of the opinion, formed in good faith, that the termination of the pregnancy is
necessary to preserve the life of the pregnant woman.
2 Preserving the life of the pregnant woman: examples
(1) Without prejudice to the generality of section 1 of this Act or to the
proviso to section 3 of the Infanticide and Infant Life (Preservation) Act 1938
(in this Act referred to as “the 1938 Act
”), if the hospital surgeon who
terminates the pregnancy and the other medical practitioner are of the
opinion, formed in good faith, that —
(a) the continuance of the pregnancy would involve a substantial risk
(other than such risk as is normally associated with pregnancy
and childbirth) to the life of the pregnant woman greater than if
the pregnancy is terminated; or
(b) the termination is necessary to prevent grave permanent injury
to —
(i) the physical health of the woman; or
(ii) the mental health of the woman,
Section 3 Termination of Pregnancy (Medical Defences) Act 1995
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the termination shall, for the purposes of those sections, be necessary to
preserve the life of the pregnant woman.
(2) In a case to which subsection (1)(b)(ii) applies, the other medical
practitioner must be a consultant psychiatrist.
3 Duty to preserve life of child
(1) When, in accordance with sections 1 and 2 of this Act or in accordance
with the proviso to section 3 of the 1938 Act, a hospital surgeon
terminates a pregnancy which has exceeded 24 weeks, it shall be the duty
of the surgeon —
(a) to perform the termination in such manner as is best calculated to
preserve the life of the child; and
(b) to take such other action as is reasonable in all the circumstances
to preserve the life of the child.
(2) The duty imposed by subsection (1) shall be exercised in a manner which
is consistent with, and shall not override, the duty of the surgeon to
preserve the life of the woman.
(3) The obligation to comply with the duty imposed by this section is a duty
owed to the pregnant woman and the child (if born alive), and any
breach of that duty is actionable accordingly, subject to the defences and
other incidents applying to actions for breach of statutory duty.
4 Defences: viability or abnormality of foetus
(1) Subject to section 6, a person shall not be guilty of an offence under —
(a) section 71 or 72 of the Criminal Code; or
(b) section 3 of the 1938 Act,
when a pregnancy is terminated by a hospital surgeon if that surgeon
and an independent medical practitioner are of the opinion, formed in
good faith, that there is a substantial risk that if the child were to be born
at full term it would suffer from such physical or mental abnormalities as
to be —
(i) unlikely to survive birth;
(ii) unlikely to be capable of maintaining vital functions after
birth; or
(iii) seriously handicapped.
(2) For the purposes of subsection (1)(iii), a serious handicap exists if, and
only if, the hospital surgeon and the medical practitioner are of the
opinion, formed in good faith, that the handicap is not capable of being
cured or substantially relieved by treatment or the passage of time.
Termination of Pregnancy (Medical Defences) Act 1995 Section 5
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(3) Subsection (1)(iii) shall not apply unless the hospital surgeon and the
medical practitioner are of the opinion, formed in good faith, that the
pregnancy has not exceeded 24 weeks.
5 Defence to charges under section 71 or 72 of the Criminal Code in cases
of certain sexual crimes
(1) Subject to section 6, a person shall not be guilty of an offence under
section 71 or 72 of the Criminal Code when a pregnancy is terminated by
a hospital surgeon if —
(a) that surgeon and an independent medical practitioner are of the
opinion, formed in good faith, that the pregnancy has lasted for
less than 12 weeks; and
(b) the requirements of subsection (2) have been complied with.
(2) The requirements referred to in subsection (1)(b) are that —
(a) the pregnant woman has produced to the hospital surgeon and
the medical practitioner an affidavit or other evidence taken
under oath alleging that the pregnancy could be caused by rape,
incest or indecent assault;
(b) the pregnant woman has made a complaint to the police about the
alleged rape, incest or indecent assault as soon as was reasonable
in all the circumstances; and
(c) the hospital surgeon and the medical practitioner are of the
opinion, formed in good faith, that there are no medical
indications which are inconsistent with the allegation that the
pregnancy could be caused by rape, incest or indecent assault.
(3) No evidence in respect of, or any matter connected with, the termination
of a pregnancy in accordance with this section shall be admissible in any
criminal proceedings relating to the alleged rape, incest or indecent
assault except with the leave of the court.
6 Provisions supplementary to sections 1 to 5
(1) Sections 1 to 5 shall apply only where —
(a) the pregnant woman is ordinarily resident in the Island; and
(b) the pregnancy is terminated in a national health hospital.
(2) In sections 1, 4 and 5, “independent medical practitioner
” means a
medical practitioner who —
(a) is not employed on the staff of, or otherwise contracted to provide
medical services in, a national health hospital in a post or office
which is junior to the hospital surgeon who terminates the
pregnancy; or
Section 7 Termination of Pregnancy (Medical Defences) Act 1995
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(b) is not a partner or employee of the hospital surgeon who
terminates the pregnancy; or
(c) is not a member or employee of a group practice of which the
hospital surgeon who terminates the pregnancy is a member or
employee; or
(d) during the 6 months preceding the termination, has not acted as
locum tenens for the hospital surgeon who terminates the
pregnancy; or
(e) during the 6 months preceding the termination, has not been
engaged to assist the hospital surgeon in the course of a private
medical practice.
(3) Subsection (1), and so much of sections 1 and 2 as relate to the opinion of
two medical practitioners, shall not apply to the termination of a
pregnancy by a medical practitioner in a case where the practitioner is of
the opinion, formed in good faith, that the termination is immediately
necessary to save the life or to prevent grave permanent injury to the
physical health of the pregnant woman.
(4) In the case of a woman carrying more than one foetus, the defences
provided under sections 1 to 5 apply if —
(a) the ground for termination of the pregnancy specified in section 4
applies in relation to any foetus and the action is taken for the
purpose of procuring the miscarriage of that foetus, or
(b) any of the other grounds for termination of the pregnancy
specified in those sections applies.
(5) Where a pregnancy is terminated in accordance with this Act —
(a) if the child is born alive, the hospital surgeon shall be under a
duty to take all reasonable steps to preserve the life of the child; or
(b) if there is no live birth, the foetus shall be disposed of —
(i) in accordance with the wishes of the pregnant woman; or
(ii) in the absence of any direction by the pregnant woman, in
accordance with the normal practice of the hospital,
but the foetus or any part of the foetus shall not be used or made
available for any medical or other experiment or procedure or for any
purpose whatsoever without the express written consent of the mother.
7 Regulations
(1) The Department shall, after consulting such persons and bodies as it
thinks appropriate, make regulations as to the provision by the
Department of —
(a) balanced and impartial counselling services for any pregnant
woman who has to consider the termination of her pregnancy;
Termination of Pregnancy (Medical Defences) Act 1995 Section 8
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(b) facilities, staff or funds for such service; and
(c) training and information for persons engaged for the purposes of
such service.
(2) The Department may make regulations to provide —
(a) for requiring any such notice, opinion or affidavit as is referred to
in this Act to contain such information and to be in such form as
may be prescribed by the regulations;
(b) for requiring any such evidence on oath as is referred to in this
Act to include such information as may be prescribed by the
regulations;
(c) for requiring the preservation and disposal of such documents as
are made for the purposes of this Act or the regulations;
(d) for requiring any medical practitioner who terminates a
pregnancy to give notice of the termination and to furnish such
documents and information relating to the termination as may be
so prescribed;
(e) for prohibiting the disclosure, except to such persons or for such
purposes as may be so prescribed, of any document or
information furnished pursuant to this Act or to regulations.
(3) The documents and information furnished in pursuance of regulations
made under subsection (2)(d) shall be notified solely to the director of
public health.1
(4) Any person who intentionally contravenes or intentionally fails to
comply with the requirements of regulations under subsection (2) shall
be liable on summary conviction to a fine not exceeding £5,000.
(5) Regulations under this section shall be laid before Tynwald.
8 Interpretation
(1) In this Act —
“the 1938 Act
” has the meaning given by section 2(1);
“consultant
” means a medical practitioner who is employed or engaged as a
consultant at a hospital provided by the Department under section 28 of
the National Health Service Act 2001;2
“the Criminal Code
” has the meaning given by section 1;
“the Department
” means the Department of Health and Social Care;3
“hospital surgeon
” means —
(i) a consultant in obstetrics and gynaecology;
(ii) a consultant in surgery;
Section 9 Termination of Pregnancy (Medical Defences) Act 1995
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(iii) a surgeon employed on the staff of a national health
hospital; or
(iv) any other medical practitioner who is recognised by the
Department as being suitably qualified and who has been
nominated in writing by the Department as a medical
practitioner authorised to undertake the termination of
pregnancies at a national health hospital;
“medical practitioner
” means a registered medical practitioner;
“national health hospital
” means a hospital vested in the Department for the
purposes of the National Health Service Act 2001.4
(2) Nothing in this Act shall be construed as imposing any duty on any
person to participate in any treatment authorised by this Act to which
that person has a conscientious objection and the Department shall not —
(a) terminate the employment of any persons so refusing; or
(b) refuse to employ persons on the sole ground that they refuse, or
might refuse to participate in any treatment authorised under
this Act.
(3) For the avoidance of doubt, it is declared that it is not an offence under
the law of the Island for a medical practitioner or any other person to
advise a pregnant woman in respect of any service relating to the
termination of pregnancy which is available in any place outside the
Island.
9 Financial provision
Any expenses of the Department which are attributable to this Act shall be paid
out of monies provided by Tynwald.
10 Short title and commencement
(1) This Act may be cited as the Termination of Pregnancy (Medical
Defences) Act 1995.
(2) This Act shall come into force on the expiration of the period of three
months beginning with the date on which it is passed.
Termination of Pregnancy (Medical Defences) Act 1995 Endnotes
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ENDNOTES
Table of Legislation History
Legislation Year and No Commencement
Table of Renumbered Provisions
Original Current
Table of Endnote References
1
Subs (3) amended by Public Health (Amendment) Act 2000 s 12. 2
Definition of “consultant” substituted by National Health Act 2001 Sch 4. 3
Definition of “the Department” amended by SD155/10 Sch 4 and by SD2014/08. 4
Definition of “national health hospital” amended by National Health Service Act 2001
Sch 4.
