Clause 17.—(AMENDMENTS AS TO STRIKING OFF REGISTER UNDER S. 29 OF MEDICAL ACT, 1858.) (Hansard, 18 July 1950)

§ Dr. Barnett Stross (Stoke-on-Trent, Central)
I beg to move, in page 10, line 27, to leave out subsection (1), and to insert: (1) If any registered medical practitioner shall be convicted in any court in the United Kingdom or the Republic of Ireland of any felony, misdemeanour crime or offence and is judged by the medical disciplinary com- 2177 mittee after due inquiry to have been guilty of infamous conduct in any professional respect, the disciplinary committee may, if it sees fit, direct the registrar to erase the name of such medical practitioner from the register. (2) If any registered medical practitioner is judged by the medical disciplinary committee, after due inquiry into any complaint received and supported by affidavit or affidavits, to have been guilty of infamous conduct in any professional respect, the medical disciplinary committee may, if it sees fit, direct the registrar to erase the name of such medical practitioner from the register. This Amendment has reference to the problem of inquiry after court proceedings, and is an attempt to bring about a substitution for Section 29 of the Medical Act, 1858. The wording of that Section is as follows: if any registered medical practitioner shall be convicted in England or Ireland of any felony or misdemeanour, or in Scotland of any crime or offence, or shall, after due inquiry, he judged by the General Council to have been guilty of infamous conduct in any professional respect, the General Council may direct the Registrar to erase the name of such medical practitioner from the register. I think it is a reasonable point of view to put forward to the Minister that there may be something wrong in this attitude. We are anxious to have the ruling that courts of law shall not try the practitioner for the same offence twice. If he is tried legally, it is because he has committed, or is accused of committing, a fault against the State or against society in general. When he comes before the General Medical Council, however, then it is his professional conduct, and that only, which is judged, and the investigation and its nature before the tribunal may differ from the aspect of the case when he is tried legally in a court of law.
I think, therefore, it is reasonable to suggest that all the General Medical Council should try the practitioner for is on whether he is guilty of infamous conduct in a professional sense, quite distinct from any offence he may have committed against the law of the land. I am asking the Minister to accept this Amendment because it would, I think, regularise the position.

§ Sir Herbert Williams (Croydon, East)
May I draw attention to the drafting of this Clause, to which this is an Amendment? It speaks of a medical practitioner convicted "by any court in the United Kingdom or the Republic of Ireland." In 2178 the Republic of Ireland they may have all sorts of laws over which we have no control. They may create new felonies. They might make it a felony to sing what we call the National Anthem, in the Republic of Ireland. A doctor, a general registered practitioner, might be convicted of the felony of singing what we call the National Anthem. [An HON. MEMBER: "The hon. Member is joking."] No, I am not joking. In connection with a certain visit to Northern Ireland people were protesting in Dublin the other day, so it is not too remote.
It is quite monstrous that the position of a registered medical practitioner in the United Kingdom may depend upon an offence against the law in the Republic of Ireland, which we did not regard as an offence here. I understand that, under the system of registration, there is an exchange of arrangements between this country and the foreign country known as the Republic of Ireland. It is a foreign country. They say so. I presume they know what kind of country it is. The hon. Member for Stoke-on-Trent, Central (Dr. Stross) ought to make it quite clear, in his Amendment, whether he has any restrictions on the words "felony, misdemeanour, crime or offence." Otherwise, we may expose to the risk of being struck off the register quite a lot of people who are general practitioners in this country, registered by the General Medical Council, who may be on holiday in Ireland, and who may commit what is deemed there to be a crime.

§ Dr. Stross
I am very glad to hear the hon. Member for Croydon, East (Sir H. Williams) make that point because, although it is almost a reductio ad absurdum there is a point involved. If my Amendment is accepted, there can be no action, whatever the felony may be, without an inquiry by the G.M.C. That would give the protection the hon. Member has in mind.

§ Sir H. Williams
If a doctor has committed a crime in the eyes of the Republic of Ireland which is not a crime here, it is not right that he should be put under the intolerable burden of defending himself before the General Medical Council. I see an hon. Member opposite shaking his head, but he is an expert on medicine and not on law.

§ Mr. Somerville Hastings (Barking)
The Amendment reads: If any registered medical practitioner shall be convicted … and is judged by the medical disciplinary committee … So, not only must he be convicted in Ireland, but he must be judged by the medical disciplinary committee, after due inquiry, to have been guilty of infamous conduct.

§ Sir H. Williams
Because the first thing happens, he is charged before the second tribunal. The mere fact that he has been convicted of "Any felony, misdemeanour, crime or offence" makes it implicit that the medical disciplinary committee should then consider his further offence. Thus, any medical practitioner in this country would be exposed to the consequences of committing a felony, over which the committee and the Parliament of Britain have no control whatever.
In a week's time the Parliament of the Republic of Ireland—I do not know what they call it, it is a strange name I cannot pronounce; it is the Dail, I think—might pass a law creating a new felony and, without our knowledge, expose every practitioner in this country to the risk of committing that felony and being brought before the medical disciplinary committee. It would be the duty of that committee to consider the case of a practitioner who has committed that felony.

§ Dr. Morgan (Warrington)
The Amendment says, "guilty of infamous conduct in any professional respect." He must be guilty of something unethical within the profession, and not of an ordinary felony at all.

§ Sir H. Williams
The hon. Member, who is another medical man, is also wrong. He has not taken the trouble to read the words. It does not say anything about professional misconduct. It says: If any registered medical practitioner shall be convicted.. of any felony, disdemeanour crime or offence …

§ Dr. Morgan
If the hon. Member will read a little further he will see that it continues— … and is judged by the medical disciplinary committee after due inquiry to have been guilty of infamous conduct in any professional respect, …

§ Mr. Bevan
The Committee is suffering under the misfortune of having taken up the Committee stage of the Bill on two separate occasions before two almost distinct audiences. If we had been able to conclude these proceedings last Friday we would have added to the continuity of examination and of illumination at the same time. Unfortunately, because it has taken up this time, I am afraid the atmosphere of belligerency exceeds that of luminosity.
The position is perfectly simple, and I hope it will not be complicated. I must start off by reminding the Committee once more that one of the purposes of this Bill is to protect the doctor. The other purpose is to protect the public. There is always much more consideration given to the organised element than to the unorganised. We are here to protect the unorganised, and the unorganised element is the general public. Doctors are given access to the private citizen in circumstances of privilege and we must therefore protect all the time the well-being and safety of the public in such a way as not to do injustice to the doctor. That is what we are seeking to do. There is nothing at all in this point about the Republic of Ireland.

§ Mr. Bevan
If the hon. Member will permit me to finish, it will be much to his advantage, because then he would learn something about it. The situation is clear. The General Medical Council need to take no notice at all of it. If a medical practitioner has been guilty under the laws of the Republic of Ireland of singing at the top of his voice in the middle of Dublin, the General Medical Council is not compelled to take notice of it merely because it is a felony under Irish law. But we may count on the General Medical Council to take notice of offences of such a serious kind as to cast doubt upon whether a doctor ought to be permitted to enjoy the privileges that a doctor enjoys. That is clear enough. It does not matter how the Republic of Ireland changes the law. What matters is the nature of the offence committed by the medical practitioner.
What is suggested by the Amendment is quite intolerable. It provides that if the doctor has not committed an offence 2181 against his patient, it does not matter what he has done. He can be guilty of a series of assaults of any kind whatsoever. He can be guilty of blackmail and repeated blackmail. He can be guilty of any kind of serious offence which he is given a peculiar opportunity of committing. But provided it is not against his patient, according to the Amendment, the General Medical Council should ignore it. I think that is a most serious thing.
The General Medical Council has not only to try a charge made against a doctor, but it must positively seek to protect the public. If it is found that a doctor has committed a series of offences of a most serious kind, the General Medical Council must be free to consider whether such a person ought to remain on the medical register and enjoy the protection given by the medical register. I should have thought that was perfectly clear. Indeed, we have so reformed the disciplinary powers of the General Medical Council under this Bill that there is no danger of a doctor suffering any injustice. As has been explained on a number of occasions, if the general practitioner has been brought before the General Medical Council, and deems that he has a grievance, he has an appeal to a Committee of the Privy Council. All I ask the Committee is that the protection afforded the doctor shall be accorded to the public.

§ Mr. Iain MacLeod (Enfield, West)
May I, as one who has been a member of both audiences—on Friday and to-night—and who listened with admiration but without understanding to the long words that the Minister used, say with great respect that he is wrong dismissing this point as unimportant? It is not in the least unimportant. It is of the first importance. I entirely agree with him that the Amendment is nonsense, but we cannot start writing into Bills in this country provisions in regard to foreign countries.
There must be a limit to the exemptions we are to give, either by Amendment or by legislation to the choice that the Republic of Ireland has made of her own free will. I suggest that this cannot be said to be unimportant, because the disciplinary committee has the right to interpret it in any way they like. I think my hon. Friend has raised an important point. The Minister will remember that 2182 I said on Friday that we cannot and must not legislate or start legislating for a country which, by its own will, has severed itself from the Commonwealth.

§ Sir H. Williams
The Minister said I was talking nonsense. I intervened to find out in what way, but having listened for five more minutes to the right hon. Gentleman I found that he did not give any indication. I only agreed that this Amendment was silly. It contains two parts—to leave out a subsection and to insert another. They both contain the phrase "in any court in the United Kingdom or the Republic of Ireland of any felony, misdemeanor, crime or offence." Therefore, we are handing over a subject of His Majesty to the law of what is, in effect, a foreign country. If the right hon. Gentleman had included any of those crimes in any country I could have understood it, but why, because a man is on holiday in Ireland, resting from the performance of certain duties which the right hon. Gentleman has laid upon him, and happens to be involved in something that country classes as a "felony, misdemeanor, crime or offence," he is in peril of the General Medical Council—

§ Mr. Bevan
No.

§ Sir H. Williams
It is no use the right hon. Gentleman saying "No." Let him give the reasons. He cannot get away with shaking his head. That is not an argument. Let the right hon. Gentleman explain why the man is not in peril.

§ Sir Hugh Lucas-Tooth (Hendon, South)
I think the Committee is entitled to have some knowledge whether the arrangement in subsection (1) is reciprocal. On Friday, the Committee discussed another Amendment dealing with Ireland, and I think hon. Members were not altogether satisfied that what is now intended to be done regarding Southern Ireland will work. The basis of dealing with Southern Ireland is that there shall be a reciprocal arrangement so that the decisions shall be similar in both countries. I imagine the basis of dealing with the law of Southern Ireland is different from that of dealing with the law of France, Italy, America or anywhere else, in that we have a special position regarding Southern Ireland. Could the Minister tell us whether the same Amendment is being made in 2183 the law of Southern Ireland, so as to treat the United Kingdom doctor in the same way as in other countries?

§ Mr. Linstead (Putney)
Before the Minister replies I should like to put to him a point which might help to answer the question of my hon. Friend the Member for Croydon, East (Sir H. Williams). Is there is any other way, except through the General Medical Council, of removing a practitioner from the medical register in the Republic of Ireland? If there is no other way, except through this machinery, then there is good reason, according to the law of Ireland, for the same provision as is accorded to the law of this country.

§ Mr. Bevan
The disciplinary court is the General Medical Council. We are discussing whether a person should go on to the medical register and the conditions under which he can be removed from the register. With respect to the intern year, we were perfectly clear on Friday that a person must serve the intern year in Ireland if he wishes to appear on the medical register of both countries. Reciprocity is, therefore, established. Do we understand that what is now meant about reciprocity is that if the Republic of Ireland makes a thing an offence in the Republic, then we must make a similar thing an offence under English law, otherwise there is no reciprocity?
What we are talking about is the General Medical Council's power to take cognisance of an offence which is an offence, whether it be committed in Ireland or committed here. If a doctor from this country took up residence in Southern Ireland and committed a series of offences there which would also be offences against our law here, is it suggested that the General Medical Council should take no cognisance of this conduct? They take cognisance of the nature of the conduct, and if the Republic of Ireland has made an offence, which is a trivial affair, a criminal offence, then the General Medical Council will take no notice of it whatever, unless it has a bearing upon the doctor's ability to remain on the General Medical Register and to go on doing his work as a doctor, in exactly the same way as they would take no notice of a trivial offence com- 2184 mitted against the English law. What the General Medical Council would take into account is the nature of the offence, whether it be in Ireland or here or anywhere, I should imagine, so long as the facts were established. We are making very heavy weather with a very light cargo.

Dr. Hill
I agree that in a large part of this argument we are making very heavy weather. It is not sufficiently realised that if a practitioner is convicted of a crime or an offence in this country it is automatically reported to the General Medical Council. The Council do not necessarily do anything about it; I suppose that in the majority of cases they they do not do anything about it. In an effort to meet the Irish situation, as dealt with in other parts of the Bill, there is the odd situation that should a practitioner go to Ireland, say, for his holidays, and get into some trouble which results in a conviction, that will automatically be reported to the General Medical Council. Should he go to France, or to the Dominions, then, of course, that will not occur.
It is rather an odd situation that Ireland should be selected as the place in which one must be particularly careful. I see the Minister disagrees; perhaps he will correct me if I am wrong, but as I understand it that is what we are doing.

§ Mr. Bevan
It is a single register.

Dr. Hill
There are practitioners from Canada, Australia, New Zealand and South Africa on the register. just as there are practitioners from Southern Ireland. If the Minister is saying that offences which are committed in the countries from which the practitioners on the register are gathered must be reported to the G.M.C., then he must be logical.

§ Mr. Ronald Mackay (Reading, North)
Hon. Members should realise what is the legal position. If any of these offences are committed in any of the countries as well as the Republic of Ireland, they are offences in this country, and a person can be convicted in this country if he commits a crime in any other part of the world. It does not apply to any of these countries alone.

Dr. Hill
Let me assure the hon. Member that I know the situation. I am not referring to a chance of being convicted, but to the possibility of the conviction being automatically reported to the General Medical Council and only that. It is a small point, but it seems to me that information of naughtiness that leads to conviction in Ireland will find its way to the registrar, but not from other places where practitioners go. I would suggest that the Minister might look at this point before the Report stage.

§ Mr. Bevan
I am ready to look at anything, but if I looked at some of the points which have been raised on this Bill I would soon get astigmatism. As the hon. Member for Luton knows very well, we have not got reciprocal arrangements with other countries. The reason why we have these complications with the Republic of Ireland is because we have a common register and there is common trading in both countries.

Dr. Hill
Is the right hon. Gentleman saying that this principle applies to those countries and parts of countries with which we have reciprocal arrangements, because we have reciprocal arrangements with five of the Provinces of Canada?

§ Mr. Bevan
We have reciprocal arrangements with Italy, and I believe I am right in saying also with Japan. The real problem here is that we are trying to make quite clear that the conditions under which the Irish doctor remains on the register in this country and in Ireland shall be no less and no more onerous than the conditions applying to the English doctor. That is what we are doing, and it seems to me to be perfectly legitimate.

Dr. Hill
I hope the right hon. Gentleman will look at this again. I agree objectively with what he says, but there is a danger that we might create in another field, the field of the reporting of convictions, a rather illogical situation. I say no more.

§ Mr. Bevan
I promise to have a look at it between now and the Report stage, but I hope that hon. Members will not think that any result will necessarily mean amending the Bill.

§ Dr. Stross
I was glad to hear the Minister say that he will look at this matter, for I think he is misinterpreting the intention of the Amendment. It may be because it is badly worded. I must take responsibility for the wording though the actual suggestion came to me from an organisation with 60 years' experience both in bringing cases against medical men and defending medical men before the G.M.C. Sixty years is a long time. As I see it, it all hinges on this question of further investigation after conviction to see if there is unprofessional conduct resulting from it. If my right hon. Friend takes advice on that one point, he might agree with some of us that this would be an improvement on the Bill. However, in view of what my right hon. Friend said, I beg to ask leave to withdraw the Amendment.

§ Sir H. Williams
Before the Amendment is withdrawn, I should like to say that it is obvious that the Minister has not read the Amendment and has not read his own Clause. He says this only applies to Irish doctors. It does not. It applies to any doctor on the register who may be a doctor permanently resident in this country, but who may be in Ireland. It is no good the Minister saying that this only applies to Irish doctors. It is not true; it is not accurate. [An HON. MEMBER: "He did not say that."] He did say it, and if he does not get astigmatism he will be able to read it. He also referred to a series of offences, but it says nothing about offences in the Amendment. The right hon. Gentleman has got astigmatism apparently, and I know he cannot get glasses very quickly in these days. The Amendment says: any felony, misdemeanour, crime or offence. It does not say that they must all be committed. The Minister ought not to come before the Committee at this time of the night and show us that he has not read the Amendment or the Clause, and that he does not understand either of them.

§ Lieut.-Colonel Elliot (Glasgow, Kelvin-grove)
I beg to move, in page 10, line 34, to leave out subsection (2).
I think that, as the right hon. Gentleman has said, we are in a certain difficulty this 2187 evening because we are continuing a very complicated discussion in the presence of a number of hon. Members who have not had the advantage of going all through the previous stages. This difficult matter, which I think can be shortly dealt with, arises out of a case known as the Spackman case. The particular point is that in the case of a person who, as the Clause says, has a finding against him in any matrimonial proceedings in the United Kingdom or the Republic of Ireland, being proceedings of a High Court or the Court of Session"— the decision being that he has been guilty of adultery with a certain person—that finding shall be conclusive on that fact.
There are two points. One is that occasionally the facts brought out in a second inquiry are not identical with the facts brought out in the first. It is suggested that the G.M.C. should not re-try another case. There is a great deal to be said for that: but it is possible that different facts, or facts bringing out another light on the case, may become evident in a hearing before the General Medical Council.
There is a further point to which I would like the Minister to give attention. Why should it be only a conviction that he had been guilty of adultery with a particular person? There are other offences of which he might be judged guilty which would inevitably bring out the stigma of being guilty of infamous conduct in a professional respect, such as a jury's verdict of justification for any proceedings for slander, or a bastardy order made by a bench of magistrates.
The Minister may say that these are not the sort of convictions which would inevitably bring about a charge of conduct which is infamous in a professional respect. I am not sure about that. I would like to have the right hon. Gentleman's opinion upon these matters. We are discussing this in a non-party atmosphere. I will not say a non-controversial atmosphere, because there is a certain amount of controversy in any discussion on the Floor of the House of Commons; but we are discussing this in an atmosphere in which the lines of demarcation do not run up and down the Floor, but occasionally run transversely across the Floor.
2188 Therefore, I may say that we are discussing it in a non-party sense. I do not dissent from the Minister's argument that we are here to protect the public as well as the medical man. At the same time, it has been held in the past that a certain investigation held in the courts for one purpose should not be taken as more than prima facie evidence that there is a case for inquiry before another court; that it should not automatically be taken as a ground of conviction before a second court. That is a point upon which I, and several of my hon. Friends, would like to be assured.

§ Mr. Bevan
I thank the right hon. and gallant Gentleman for the opportunity given me to clear up any misunderstanding that this subsection may create in the minds of hon. Members. This was discussed in another place, and I think that it was there generally agreed that there would be something quite wrong in the General Medical Council re-trying a case already tried, not, shall I say, by a "superior" court, but by a court of high standing. Therefore, it could be taken for granted that in the case of adultery, the facts had been brought out, and that the decisions of the court should be accepted by the General Medical Council. I think that there will be fairly general agreement that that ought to be the case.
Where, however, it is another type of case—an offence such as that mentioned by the right hon. and gallant Gentleman—we should have a criminal offence; assault, for example, and cognisance is taken of that in the other Clause. Where it is a case of an affiliation order being granted against a doctor, this, I think, is usually taken in a court of summary jurisdiction in England and Wales; I am not certain about the procedure in Scotland, but the right hon. and gallant Gentleman will know. There, the General Medical Council takes the view that this is what is known as a complex case; where it could not come to a decision that the conclusions of the court could be taken as final. The General Medical Council would there feel that it was open to it to consider whether the doctor was guilty of unprofessional conduct.
We are not dealing here with a case against the patient; that is clear. We are dealing with the conduct of the doctor as immediately jurisdictional. 2189 These are not offences against the patient, but where information is laid with the General Medical Council, and where a decision of a court has already been given. In such cases, the General Medical Council would hold itself free, and in complex cases, where they are not criminal cases, the Council would hold itself free to reconsider the offence.

§ Mr. John Hay (Henley)
We are indebted to the right hon. Gentleman, but has he appreciated the point in the Amendment? We have to remember the case of Dr. Spackman, and I wonder. if m I might ask the Committee to allow me to recount the facts, because the Clause now before us endeavours to get round a decision made by another place, sitting in a judicial capacity.
The facts are that in 1943 Dr. Spackman was a co-respondent in divorce proceedings, and judgment was given that the doctor had been guilty of adultery. The General Medical Council's disciplinary committee considered whether he should be struck off the register for gross misconduct in a professional respect, and said that as the judge had found that adultery had been committed by the doctor that, ipso facto, was sufficient evidence for them and they refused to listen to any additional evidence which Dr. Spackman wished to call to refute the charge of adultery. He said he had additional witnesses whom he did not call before the court, and that he wished to bring them before the General Medical Council to say something which might prevent his being struck off the register. But the Council refused, and another place, in its judicial capacity, held that there must be due inquiry; but, in fact, there had not been inquiry by the Council and the doctor was not allowed to call his witnesses, although some doubt existed, in the minds of some people.
11.0 p.m.
As I see it, that is the law as it stands at the moment. The subsection here tries to put the position back again to what it was before the Spackman case, because it says that: For the purposes of any inquiry … whether a person has been guilty of infamous conduct in any professional respect, a finding against him in any matrimonial proceedings … that he has been guilty of adultery with a particular person shall he conclusive … 2190 In other words, supposing a doctor in such circumstances as I have described is brought before the General Medical Council and charged with committing professional misconduct and the only evidence against him is a finding of the superior court that he had committed adultery, then, according to this Clause, he is immediately found guilty and cannot call any other evidence.

§ Mr. Hay
With respect, I think that is what will result. Whether it is what the Minister intends, I do not know.

§ Mr. Bevan
If the General Medical Council accepts as a fact that he has been guilty of adultery, that is the position. It does not necessarily follow that it proceeds to remove him from the register. That is the point.

§ Mr. Hay
I am very grateful to the right hon. Gentleman. Perhaps I was misinterpreting the position. The position, as it stands without this Clause, is that a finding of adultery in the High Court against a doctor can be used by the Council as prima facie evidence only. Lord Simon, in another place, said that. It is prima facie evidence. This Clause, as it stands, will have the effect of turning what should be a prima facie case into an almost conclusive case. That is why we want to remove this subsection from the Bill.

§ Mr. Bevan
I ask the hon. Gentleman this question. Would he care to envisage the situation in which the court has decided that a doctor has been guilty of adultery and then the same evidence is gone over again by the disciplinary committee of the General Medical Council and they say he has not committed adultery? There will be a queer situation existing there. I should have thought myself that it would be an utterly intolerable situation in which the General Medical Council could not in law but could, in fact, cast doubt upon the validity of a decision arrived at by another court.
What we are dealing with here, is this: we are assuming—and I should have thought myself that the assumption is a reasonable one—that the machinery of justice has already worked upon the doctor's case in the other court, and that 2191 all the evidence then available had been sifted, and that all the lines of evidence had been examined, and that in a proper atmosphere, and with due consideration to the machinery of justice, a decision had been reached that the doctor had been guilty of adultery.
Are we now to proceed upon the assumption that the judicial machinery available to the General Medical Council, and their method of sifting evidence, is so much superior to that of the ordinary courts that the General Medical Council can reach a valid decision which is different from that of other courts? I should think a most extraordinary situation would be created if that were so. All that is done here is that the General Medical Council assumes that the other court has done its duty and, therefore, it need not re-try the case. It accepts the decision of the other court that an act of adultery has been committed. It then proceeds to consider whether, having regard to that fact and to the other attendant circumstances, the doctor should be removed from the register. It does not seem to me that it would be a competent thing for the General Medical Council to act upon the assumption that the decision of the other court could necessarily be invalidated and re-try what has been already tried in another court.

§ Sir H. Lucas-Tooth
I think that the right hon. Gentleman has fallen into error, because the nature of the proceedings in the High Court to which he referred is not criminal. If, in fact, a doctor had been tried on a criminal charge and had been found guilty of some offence, what the right hon. Gentleman says would be valid. But in those circumstances this subsection would be wholly unnecessary, because the mere fact that that charge against the doctor had been of a criminal character would have brought it within the first subsection of the Clause. The difficulty we are up against is that the offence of adultery is not a criminal offence, but a civil offence, as the nature of the proceedings in the High Court is as between two private subjects.
It is possible that a doctor, for reasons of his own, would not wish to defend himself against a charge of adultery. He could be found guilty of that charge—and indeed men are so found guilty every 2192 day—without having lifted a finger to defend himself. In the vast majority of cases the person concerned has committed the offence—

§ Mr. Bevan
Does the hon. Gentleman suggest that the courts reach a verdict on adultery more frivolously than in the case of a criminal charge? The courts have laid it down, as I understand it, that the same evidence must be considered with regard to adultry as with regard to a criminal charge.

§ Sir H. Lucas-Tooth
No.

§ Mr. Bevan
But I understand that they have done so. What the hon. Member is now suggesting is that in the case of adultry, the procedure of the courts is not as austere as in the case of a criminal charge.

§ Sir H. Lucas-Tooth
The nature of the two cases is entirely different. A case of adultery is a case between two of His Majesty's subjects—

§ Mr. Bevan
So it is in the case of assault.

§ Sir H. Lucas-Tooth
—before a civil court. In a criminal case the position is wholly different. I would not like to go into the question of the difference in the rules of evidence. But I would remind the right hon. Gentleman that, as he probably knows, the question of confession is wholly different in civil cases and criminal cases. In this particular case what the right hon. Gentleman is saying is that a man who confesses that he has been guilty of adultery, would be conclusively proved to have committed that offence of a quasi-criminal character under the subsection. That is wholly repugnant to the ideas which this Committee would wish generally to observe in these quasi-criminal cases. We have here a proposal that a man who, for reasons of his own, does not wish to defend himself against a civil charge shall subsequently find himself unable to defend himself against what amounts to a criminal charge.

§ Mr. Bevan
I am trying hard to understand what hon. Members have in their minds, because when this was discussed in another place the case now being put collapsed, and I cannot see anything more tangible at the moment. Let me put it 2193 in a concrete way. A doctor has been found guilty of adultery in another court. It is said—we are speaking frankly about these things—that for reasons best known to himself he is prepared to confess to adultery—[HON. MEMBERS: "Not to defend it."]—in other words to make it easy for someone else, that is what we really mean. When he comes before the General Medical Council he wants to be able to bring forward evidence which he did not bring forward in the other court. I have not yet received an answer to the question I put to hon. Gentlemen opposite. A most peculiar situation would arise in which the G.M.C., which, after all, is a court against which an appeal lies to the court of the Privy Council, would have to say in fact that this person did not commit adultery.

§ Mr. R. Mackay
Everything the right hon. Gentleman has been saying can be rightly attributed to a defended divorce case, but it has not a word of application to an undefended case of divorce. I speak as a solicitor of 20 years' experience, and in a large number of undefended cases of divorce, no adultery has been committed at all. The application is made. the person does not defend it, and it is supported by a letter which he may have written. There is no other evidence before the court, and the person lets it go because perhaps he wants to get free from domestic or other worries. So, in the undefended cases of divorce there is every right for the doctor to be able to go before the G.M.C. and show, if he can, that he has not committed adultery.

§ Mr. Bevan
A moment or two ago the right hon. and gallant Member for Kelvingrove (Lieut.-Colonel Elliot) remarked that we are not discussing party matters here at all, and I agree. We are discussing matters of great moment for the doctors concerned. I can see the difficulty that arises where, because of a complex set of domestic and private circumstances into which it is not possible for us to inquire, or by Statute, to make any preparation for at all, a person has got himself in a position where he has been a party to an undefended divorce case. Therefore, he has not been even presumed to be guilty of adultery, but is divorced. That fact is brought to the notice of the G.M.C. The case that is made is that the doctor should be permitted 2194 to bring forward before the G.M.C. evidence he had not brought before the court. That is what is being said. It is a very dangerous thing. [HON. MEMBERS: "No."]
What is now the conclusion? It is that in such a case he was not guilty of the conduct which led to the divorce. That is what is being said. Remember that the court reached a decision. It did not reach a decision in the abstract, but in the concrete, to the effect that the divorce ought to be granted, the assumption being that, it being undefended, the person did not contest the grounds upon which the divorce was applied for.

§ Sir H. Williams
He wanted to "get shut" of his wife!

§ Mr. Bevan
Exactly. We are not, all of us, always entirely out of sympathy with such a course, but what we are now saying is that he should be able to bring evidence before the G.M.C. which, if it had been brought before the court, would have invalidated the action.

§ Sir H. Lucas-Tooth
No, it would not.

§ Mr. Pitman
The rules of evidence are different.

§ Sir H. Lucas-Tooth
I do wish to answer that point. If Dr. Smith or Mr. Smith is divorced by his wife on the grounds of his adultery with Mrs. Jones, and, for the sake of argument, Mr. Jones is out of the country at the time, and wishes subsequently to bring proceedings against his wife on the same act, I am right in saying that he would have to go to the same court and prove the adultery again; and the court might hold on the second proceedings that adultery had not taken place. The same court would come to two different decisions. I ask the right hon. and gallant Gentleman to reconsider this matter. I think it is much more important than he has yet recognised and if he considers this matter in its widest implications, he will see that grave injustice will be done.

§ Mr. Boyd-Carpenter (Kingston-upon-Thames)
I think the right hon. Gentleman has failed to appreciate the different standards of proof which are insisted upon in the Divorce Division as com- 2195 pared with a quasi-criminal matter, as this is. The right hon. Gentleman must know that in the Divorce Division it is possible to have a decree of divorce given against a man on the ground of adultery without him ever appearing at all. It is possible, in certain cases, with leave of the court, for a decree of divorce to be given against a man without having the divorce petition physically served on him. To suggest that a court which relies—and I am not complaining—on that type of procedure should have its decisions held to be binding and irrefutable in this quasi-criminal matter, seems to me to amount to an abuse of the rules and standards of that court when they are applied for this particular purpose.
Anybody who has had experience of courts of this sort, as I once had in a professional capacity, knows that undefended divorce petitions go through at a considerable rate. A certain learned judge on Assizes tried 33 undefended divorce petitions in the course of one hour. Obviously, a jurisdiction of that sort should not be invoked for this purpose. The right hon. Gentleman says it would be dangerous to permit a doctor to call evidence, in those circumstances, to prove he had not committed adultery. I do not see how danger arises. As my hon. Friend has said, it has been the law for seven years and so far as I know no difficulty has arisen. What is the reason for this change? Why change a position when it seems not only satisfactory but really consistent with elementary justice?
A doctor against whom a divorce petition has been granted will have to face that fact. It will be treated as prima facia evidence, and no doubt it will be difficult for him to bring evidence to refute the presumption raised; but surely he should have the opportunity of putting it forward. He should not be barred from calling any evidence in a matter which may affect vitally his whole professional career merely because years previously, for totally different reasons, he did not defend, or did not defend very strenuously, proceedings in the Divorce Division. It seems that the present subsection amounts to a denial of elementary justice to the doctor concerned.

§ Mr. Bevan
A gross exaggeration.

§ Mr. Boyd-Carpenter
The right hon. Gentleman says, "A gross exaggeration." Does he really suggest that there is any justice in ruining a man professionally because for purely domestic reasons—

§ Mr. Bevan
The hon. Member is forgetting the facts in this case. I am advised by my legal advisers that he is quite wrong in his statement that proceedings are different. I am informed that the courts have said again and again that the onus of proof of adultery is the same as for a criminal offence. I am bound to inform hon. Members that the legal advice at the disposal of the Government is at least as good as the opinion of the lawyers opposite.
However, the point which is being taken largely by the Opposition, is a perfectly valid one. It is that in many cases divorces are given in undefended actions, and therefore, the person concerned should have an opportunity, when the case comes before the General Medical Council, of asking that those circumstances should be reviewed. I should have said that in an undefended case the General Medical Council would address its mind to the fact that this was undefended, but it is not assumed at all that because a person has been found guilty of having been divorced the General Medical Council automatically proceeds to take his name off the register. The Council will take into account that he has been divorced and the surrounding circumstances. What is now being asked, and here is the danger, is that for the purposes of the General Medical Council the doctor shall be allowed to use evidence he suppressed in the courts.

Hon. Members
No.

§ Mr. Boyd-Carpenter
The right hon. Gentleman has uttered a much more dangerous thing than has been said from this side of the House. What he has just said is that the General Medical Council would take into account that adultery was established in an undefended divorce case but without going into the evidence they would doubt the decision of the court.

§ Mr. Bevan
No.

§ Mr. Boyd-Carpenter
Either what the right hon. Gentleman said meant that or it means nothing.

§ Mr. Bevan
No.

§ Mr. Boyd-Carpenter
I know the right hon. Gentleman well enough to know that he means something when he speaks, although it is not always what he says. The right hon. Gentleman says that the General Medical Council would take into account the fact that divorce proceedings were undefended. If that means anything it must mean they are, therefore, not going to take it for granted that the findings of the court were accurate in the matter. If they are not to do that then the fact that the proceedings were undefended is manifestly irrelevant. Is it not better for them to do it after hearing the evidence?
The advice that the legal officers to the Government gave is perfectly sound, but, if I may say with respect, it was perfectly irrelevant. We are not concerned with the onus of proof. If adultery is alleged it has to be proved. The onus is on the petitioner. The difference comes in the rules of evidence, and the right hon. Gentleman, if he has studied that subject at all, must know perfectly well that adultery is inferred by the Divorce Division on evidence, which though perfectly satisfactory, would not support a criminal charge. In the nature of things adultery is not, in general, committed before a crowd of witnesses. Adultery often inferred from a whole variety of suspicious circumstances from evidence of affection, intimacy, and so on, on which it is obvious that no criminal court could find him guilty.
I say that the right hon. Gentleman's legal advice is perfectly correct, but quite irrelevant and it remains a fact that the Divorce Division finds adultery on less evidence than would be necessary to sustain a criminal charge. As the right hon. Gentleman is building up his argument for this Clause on the fallacious basis that the evidence must be the same, and now it must be clear to him that the evidence is not the same, I think I am entitled to ask the right hon. Gentleman to reconsider the decision, which apparently has been genuinely reached but on quite a false premise.

§ Lieut.-Colonel Elliot
I intervene with the greatest diffidence in this argument about highly technical- legal points on which, I must say, I am totally unable to come to any conclusion at all. I am looking 2198 on this as a layman and, to some extent, as one possessed of medical qualifications. It seems to me that the difficulty arises from the fact that we are discussing two separate jurisdictions with two separate penalties. It is perfectly true that divorce does not carry with it a penalty. Therefore, for many reasons the action in a divorce case is often more or less undefended or in some cases entirely undefended, but something which is liable to strike a man off the medical register has very grave consequences and a man will regard it with the utmost seriousness.
It seemed to me that the right hon. Gentleman put his finger on the spot when he said that the General Medical Council are free to take cognisance of this or not, and if we could come back to that point we might be able to reach a conclusion. Frankly, I see no possibility of a conclusion if we are to discuss in great detail tonight the rules of evidence and procedures of courts in this country. We are dealing with a relatively limited point—that of a medical man who is on the register and who may be removed from the register. The difficulty here arises from the words of the Clause: …. that he has been guilty of adultery with a particular person …. I think it is felt that a stigma arises out of those words.
I ask the right hon. Gentleman, with all respect, is it really necessary to insert this Clause here? After this somewhat lengthy discussion, would it not be possible at any rate for him to give the matter further consideration? The Clause has been inserted for the purpose of clarifying the law, and it is true that it may have the effect of clarifying the law: but it appears from the discussion we have had this evening that it might also have the effect of obscuring the law. I advance this with the utmost respect. not merely to the right hon. Gentleman but to those of my hon. Friends learned in the law who know far more about the legal side of this than I do.
I intervene, as I said, merely as a layman, but as a layman who possesses the particular qualifications which might bring him, so to speak, within the mischief of the Clause. I ask the right hon. Gentleman to consider whether the 2199 discussion we have had this evening does not show that there is a danger of obscuring the issue.

§ Mr. Bevan
As far as I am concerned the issue is perfectly clear. There is a variety of causes for which a person can be divorced. In some instances the proceedings in the courts can be so salacious as not to need any further inquiry. In some instances they may be so perfunctory that the General Medical Council would take all the surrounding circumstances into account.
The hon. Member for Kingston-upon-Thames (Mr. Boyd-Carpenter) was entirely wrong when he said that the answer must be either "Yes" or "No"; if that were so, they would not have to bother about whether any further evidence was required. They have still to consider whether, in all the circumstances of the case, the doctor's name should be erased from the register—and the circumstances of the case would, I should have imagined, be the circumstances in which the divorce has taken place.

§ Lieut.-Colonel Elliot
The Committee is nearer general agreement than would appear from the discussion. What we are discussing is the cognisance that another court can take of the finding, not of a superior or an inferior court but of another court, in judging another set of circumstances. The two are not ranged in hierarchical order, but in a kind of penumbra impinging upon each other. I make no apology for using such language in the presence of the Minister, whose language is more clear to members of the general public than some of the more vigorous adjectives in which he sometimes indulges. I prefer him in his more reflective mood, and I am trying to approach him on that plane.
We are considering the impinging of two parallel sets of jurisdiction upon each other, and I only say that we are agreed that the General Medical Council is not necessarily bound to pay attention to anything that takes place in the other court. That is the first point. The General Medical Council is a court on its own, not necessarily taking cognisance of anything that happens in the other court, 2200 and we are now on the relatively narrow point as to whether something that has been proved in another court is to be taken as affecting something that has to be proved. We have argued for some time on this issue, and we might argue for some time longer on it.
It appears we are trying to remove an anomaly, but sometimes it is dangerous to try to remove an anomaly. From our discussions tonight, it would seem it is better to leave the anomaly and let the two bodies seek it out between them. This Committee should not try to remove an anomaly, which, apparently, has had the effect of involving us in a discussion upon what particular rules of evidence we are to apply in British courts in cases of divorce. That seems to me to be very far from the subject which we should be discussing tonight. I fear if we did review and possibly reform the British practice in all these matters, we might not get this Bill tonight, or, indeed, any Bill on this subject for a very long time.
I suggest that the Minister undertakes to look at this between now and the Report stage. I should prefer that he would accept our Amendment and leave out this subsection. Perhaps the Minister would prefer to use his discretion and put something down on Report to cover the point, when he will have to face the concentrated battery of my hon. and learned Friends here, who, from what I can gather as to their attitude, are not at all satisfied with the position in which the discussion is. If he can find it in his power, however, I hope he will accept the modest Amendment which I have brought forward.
This is not a party matter, because powerful arguments on the subject have been adduced from his own side of the Committee. If the right hon. Gentleman can undertake to drop subsection (2) and if he thinks it necessary to insert something on the Report stage, then I am sure we can make progress tonight with the Bill. All of us desire to see it upon the Statute Book, but, unfortunately, it has run upon a series of rocks, and if we cannot get it refloated quickly, it will have its bottom torn out by those rocks.

§ Mr. Bevan
I have listened carefully to what the right hon. and gallant Gentleman has said to see if some compromise might be reached, but the only com- 2201 promise which he suggested is that I should award the victory to the critics, and that I should withdraw the subsection.

§ Lieut.-Colonel Elliot
Reserving the right to re-try the case, which, as the right hon. Gentleman says, is an important case.

§ Mr. Bevan
I happen to believe that the weight of argument lies with me, and not with the Opposition. Just because hon. Members have made a large number of speeches, that does not mean they have added weight to the argument. They have added to its length, but not to its weight. What they are really suggesting is that a doctor who has secured a divorce and got rid of his wife, shall, for the purposes of the General Medical Council and the register, prove that he was not guilty of the conduct which enabled him to get rid of his wife. That is not good enough. We must rest on this, and if hon. Members get stubborn, I can get very stubborn as well.
We must rest on the fact that it is the General Medical Council itself which, when it considers the evidence, addresses itself to the question not merely whether the person has been guilty of adultery, but to whether the circumstances surrounding the whole case—[An HON. MEMBER: "But there is no evidence."] Hon. Members are still not answering my difficulty. That is, can the General Medical Council decide that, for the purpose of leaving a doctor on the register, he has not committed adultery where, for the purpose of divorce, a court has decided that he has committed adultery? That is a conundrum to which no hon. Member has addressed himself.

§ Lieut.-Colonel Elliot
I fear that there is a danger of what one might call a prolonged debate arising. I trust that that will not take place. The right hon. Gentleman has said that if hon. Members choose to be stubborn, he can be stubborn, too. None of us desires that. We concede that point to him with the utmost grace. We will give him anything further which he chooses. He can be more eloquent than any hon. Member of this Committee. He can, if I may say so, use a stronger vein of invective than any other hon. Member. But that is not what we are discussing. We are discussing subsection (2) of Clause 17.
2202 It will be conceded on all sides of the Committee that the General Medical Council could not ignore the fact that a medical man had been pronounced by a court to be guilty of adultery. The General Medical Council could not say that he had not been guilty of it. No one is contesting that on this side of the Committee. Nor would the right hon. Gentleman suggest that the Council was automatically bound to treat the doctor as a guilty party worthy of being struck off the register.
We are not really far apart from each other. I do not think it should be impossible to find some accommodation between us. [Laughter.] It is all very well for hon. Members opposite to laugh. I do not know whether they have listened to the whole of the Debate tonight, or whether they listened to the Debate on Friday. But, honestly, I see the Committee in danger of getting bogged down on points which are not of first importance, and thereby jeopardising a Measure which all of us agree is a useful and important one, and which we all desire to see placed upon the Statute Book.
Our interests on this side of the Committee are quite as great as those of the Minister in trying to find whether we cannot reach some accommodation in the matter. The Minister said that the only accommodation suggested was that the palm should be awarded to his opponents. He claimed that he was the more worthy of it. We all think that, but could not each side go a little way further to meet the other? I suggest that the right hon. Gentleman should look into this between now and the remaining stages of the Bill in order that he may deal with the points raised by my hon. Friends, and, also, from some of his own hon. Friends. They and we fear that a right which the subject previously enjoyed is being withdrawn by subsection (2), and it is that which we want to avoid.

§ Mr. Bevan
I am quite prepared to look at the matter again. Right hon. and hon. Members know very well that, when a Minister says, during a Committee stage of a Bill, that he will "look into it," he means that something will be done. But, in this case, if I say that I will look at the matter, it must not be inferred that the language of the subsection can be altered; because what we 2203 do not want to happen is that the General Medical Council should re-try a case which has already been tried in the ordinary way in the courts.
However if a form of words can be imported into the subsection by which the atmosphere of finality can be removed from it, then something may be possible. At the moment we say that it shall be taken as evidence of adultery; that is why the divorce is given in the first place. I am informed that, in undefended cases, the courts decide that adultery has taken place, and the divorce is given, and the language in the subsection is as simple as it can be; it alights on the pivot of fact.
What the Opposition is asking is that it shall be open to the Council to reexamine—although the doctor has secured his redress from the courts, and has secured justice from the courts. [HON. MEMBERS: "No."] Well, we are really getting somewhere now. The Opposition appears prepared to cast doubt on the whole British system of jurisprudence. When hon. Members say that we want to make progress, I certainly agree with them, but, I am not prepared to make progress at the expense of mutilating the Bill, and giving rise to all kinds of subsequent difficulties.
This Committee, if it cannot agree, has a way of solving its difficulty, and that is by the arbitrament of hon. Members themselves; there are such things as Division Lobbies. I have said that I am prepared to have a look at this, but with no guarantee that any tangible alteration can be made. I will most earnestly see whether there is any alteration in words which will not make it possible for the General Medical Council to re-try cases. That is quite simple, and it is as far as I can go.

§ Lieut.-Colonel Elliot
I must say that the Minister appears to be struggling with his naturally combative nature; he has genuinely tried to move towards us, and if he will undertake to have conversations with my hon. Friends—[Interruption]—yes, that is the understood thing. Hon. Gentlemen opposite are making some noise, but I am not asking the Minister to commit himself further than he says; namely, that he will look into this matter in order to meet part of the 2204 proposition which we have been putting to him tonight.
11.45 p.m.
I will only say that it is very much simpler if we can explore the possibility of approach, so to speak, behind the Speaker's Chair than across the Floor of the House. Conversations can take place much more speedily and we can get to each other's point of view much more quickly along that line. I am sure the Minister will be only too willing to undertake not merely that he will try but that he will consult with myself and some of my hon. Friends as to the words which he was trying to work out and as to the point he was trying to meet. I am sure that is not asking too much. The right hon. Gentleman makes an affirmative gesture. If he were willing to indicate that that was his view, I am sure we should be willing to withdraw the Amendment on the understanding of that further examination to which he has given, at any rate, a gesture of assent.

§ Mr. Bevan
As the right hon. and gallant Gentleman knows, it is not possible for a Minister to say that between now and Report stage he will consult as suggested. He can consult with his advisers and, in turn, may take advice from any quarter which is desirable. I have said specifically—and I hope I shall not be accused on the Report stage of misleading the Committee—that I cannot agree to any Amendment of this subsection which will enable the General Medical Council to re-try a case tried by another court. I have said that it may be possible to import language into it which makes it sound less austere than it is at present. I hope that with that assurance we can proceed.

§ Mr. Linstead
Perhaps you will allow me, Sir Charles, to put one point which is completely new, because there may be no other opportunity of putting it. Why, of the various cases that may be tried in the courts, is adultery to be selected as the one where the finding of fact is final? There may, for example, be other civil cases, such as negligence, where exactly the same situation may arise and I would like the Minister, in looking at the question of adultery, to consider whether there may not be other circumstances where the same situation could be met.

§ Lieut.-Colonel Elliot
I think that the Minister, quite rightly, has hedged about his acceptance with a number of conditions which we take note of on this side of the Committee. But I think he has shown he is at any rate genuinely anxious that some accommodation should be reached if possible. The right hon. Gentleman has said so; there are two sides of the Committee concerned in this. I am about to ask leave to withdraw the Amendment, but I must be sure that I am carrying my hon. Friends with me on this side of the Committee and those on the other side who have advanced arguments. Therefore, I am trying to examine the position as it stands. On the position as left by the Minister, I should be willing to withdraw the Amendment: I think that would meet with the acceptance of my hon. Friends on this side. Therefore, I beg to ask leave to withdraw the Amendment.