Clause 17.—(AMENDMENTS AS TO STRIKING OFF REGISTER UNDER S. 29 OF MEDICAL ACT, 1858.) (Hansard, 21 July 1950)

§ Mr. Bevan
I beg to move, in page 11, line 22, to leave out "For the purposes of," and to insert "In."
I think hon. Members present will realise that we have tried in this case to exercise the utmost ingenuity and so to muffle the blade of the axe as to make it almost look like a benediction. I think the point was well taken. As the right hon. and gallant Member for Kelvingrove (Lieut.-Colonel Elliot) said in Committee, there is always a difference of approach between the layman and the lawyer in this matter, not because the lawyer is wrong, but because he uses the terminology of his craft and speaks about 2720 "guilt," "conviction" and "adultery" almost not as in the moral category but as juridical terms, whereas the term "guilt" has a different kind of connotation for a lay person; and in the Bill the terms "adultery" and "guilt" are used. Individuals might have got themselves caught in circumstances which did not involve, in the mind of the ordinary person, any degree of turpitude but, at the same time, they would be found guilty of adultery.
I am sure that all hon. Members would agree that we should not have a situation in which the General Medical Council would re-try the case, and so we have tried to find a way between the Scylla and Charybdis of that situation. That is what we have done, and I hope the language commends itself to the House. It does what I want, but it does not allow the plaintiff or defendant to have his case re-tried. The facts are taken as facts and, at the same time, a form of language is used that does not necessarily load the name of the individual concerned with what I think the right hon. and gallant Member for Kelvingrove called "a penumbra of guilt or a nimbus of turpitude." I hope that, in the circumstances of the case, the House will accept the Amendment as meeting most of the points made in Committee.

§ Lieut.-Colonel Elliot
I think it is true that the Minister has exercised his utmost ingenuity in this, and that he has gone a long way to meet the case which was felt, I think on both sides of the Committee, to have some substance in it. I take it that it is the desire of all of us to make expeditious progress this afternoon, yet, being on the Report stage, we can each of us only speak once. I take it that it will be possible to have a general debate on the Minister's first Amendment, on which one or two points in reference to some later Amendments may arise.
It might be possible for you, Mr. Deputy-Speaker, to indicate which of these Amendments you will find it possible to call. Owing to the fact that we are working at fairly high speed just now, we have not had an opportunity of discussing these, except in draft, with the Minister or his representatives, and maybe one or more of them may commend themselves to the Minister in the course of working through them. There- 2721 fore, if we could have a general discussion, and could be sure which of our Amendments might be called, my hon. Friends and myself would be perfectly ready to operate that procedure.

§ Mr. Deputy-Speaker (Colonel Sir Charles MacAndrew)
If it suits the convenience of the House I have no objection to that. As to the other question about which Amendments are going to be called, there are two which are not going to be called. They are the Amendment to line 2 of the Minister's Amendment in page 11, line 27; and the Amendment in page 11, line 29, at the end, insert: and the Committee may in such proceedings attach to that fact such weight as they may think fit. All the other Amendments are being called.

§ Mr. Bevan
As we have been asked to widen the discussion, and I see no objection to that, I should like to say that I am proposing to accept the Amendment to my proposed Amendment in page 11, line 24—namely in line 2, leave out "against him."

§ Six H. Lucas-Tooth
I think it is a convenient arrangement that we should have a general discussion on this Clause. I understand, Mr. Deputy-Speaker, that you will not be willing to call the Amendment to the Minister's Amendment in page 11, line 27—to leave out "conclusive," and insert "prima facie." That Amendment, of course, would raise the whole general issue which was very fully discussed in Committee the other evening. For my own part, I feel that that is a desirable Amendment. Indeed, that follows from the fact that I have put my name to the Amendment. I do not advance the Amendment on medical grounds, but on the rather broader grounds of what is desirable in the interests of justice. I do not go so far as to say that the doctor, who enjoys considerable privileges under the law, should not be subject to exceptional sanctions. We must have some regard to the limits of what is practicable inserted in the Bill.

§ Mr. Deputy-Speaker
I did not realise that the hon. Baronet was going to discuss Amendments which are not going to be selected.

§ Mr. Hay
My impression was, Mr. Deputy-Speaker, that we were going to have a general discussion on the whole matter and that then subsequently the Amendments would be moved shortly.

§ Mr. Deputy-Speaker
Yes, but I understand that the hon. Baronet is dealing with an Amendment which is not going to be called.

§ Sir H. Lucas-Tooth
I thought, Sir, I had indicated that the Amendment which you do not intend to call is one which, in fact, negatives the whole subsection.

§ Mr. Bevan
I understood that as we had had a long discussion on that matter in Committee we were not going to repeat it on the Report stage. Indeed, if we are to have an argument on that point today, it would not have been necessary for me to put my emollient on the Order Paper.

§ Sir H. Lucas-Tooth
I do not wish to be ungrateful to the right hon. Gentleman, particularly when he is in his present sunny mood. I think we should indicate from this side of the House that we are grateful to him for putting this Amendment on the Paper, and although it does not go quite as far as we would have wished, nevertheless it does modify the Clause in a way which makes it more acceptable. But we still have some misgivings about the Clause, even as so amended, and feel that injustices will arise under it.
The situation of the doctor is such that if he is to claim the privileges of his profession he must be subject to a rather different code of law from other individuals. For that reason, we have less misgivings than we might otherwise have had in seeing this subsection even as amended.

§ Mr. Hay
Unlike my hon. Friend, I am a little doubtful about the use of the words which are proposed by the various Amendments to this Clause. If I may, without getting out of order, I would like to draw attention to the actual wording which will result from incorporating in subsection (2) various Amendments which the Minister is putting forward. As I understand it, the subsection will read like this: In any inquiry under the said section twenty-nine whether a person has been guilty 2723 of infamous conduct in any professional respect, any finding of fact which is shown to have been made in any matrimonial proceedings …shall be conclusive evidence of the fact found. I am not at all satisfied that that is the right sort of wording to use in this case.
I would remind the Minister of the point which I raised the other night. I do not want to labour it again, but the law up to now has been that if a doctor is charged before the General Medical Council with some kind of professional misconduct which is based upon a finding of adultery in the divorce court, then that is a prima facie burden of proof against him which he can, if he chooses, shift. If we have this particular wording and if, in fact, such a finding is made conclusive, it weights the scales very heavily against a man who might be innocent. We must not automatically assume that because there has been a finding of adultery against a doctor in divorce proceedings to which he is a party, automatically that is absolutely accurate and cannot be disputed, because there might be circumstances where proof was not available to him. Witnesses might not be available to be called in the divorce proceedings but might subsequently be called in the General Medical Council proceedings.
There is another point that I should like to put to the Minister. Whereas the duty of the divorce court is to find out whether there has been adultery between A and B in connection with a certain suit of which the court is seized, the duty of the disciplinary committee of the General Medical Council is to find out whether a doctor has been guilty of professional misconduct with a patient. There are two points there. The adultery has got to be proved and also it has got to be found by the General Medical Council that the doctor has been in professional relationship with the person with whom it is alleged he has committed adultery. That is why I am not happy about the use of the word "conclusive."
I do not wish to dispute your Ruling, Mr. Deputy-Speaker, but I think it is unfortunate that that Amendment to the Minister's Amendment in line 27 is not going to be called. I feel that the wording as it stands will impose a great burden upon the possibly innocent doctor. I know we have got to protect the public, but I think the doctor ought to be looked 2724 after as well. We must do justice to him. I hope that even now, in view of these remarks, the Minister will look at this matter again and see if he can omit the word "conclusive," because it will put a heavy burden upon a doctor who wishes to prove his innocence of the charge of professional misconduct.

§ Mr. Iain MacLeod (Enfield, West)
I should like to raise a point of order on the discussion which is taking place on this Clause. I would like to direct such few remarks as I want to make to the Amendment in page 11, line 29, standing in the name of my right hon. and gallant Friend the Member for Kelvin-grove (Lieut.-Colonel Elliot). I understand that that Amendment is in order and will be called. I should like to know whether I may speak to it now or wait until it is called.

§ Mr. Deputy-Speaker
I thought it would be rather unfair to discuss an Amendment which the House knew was not to be called. The Amendment to which the hon. Member refers is going to be called and, therefore, it will be in order to discuss it.

§ Mr. Bevan
The Amendment to which the hon. Member has referred is going to be called and, in my submission, ought to be considered separately. If I may say so, we have already suffered something from having telescoped several Amendments. In fact, so far the discussion has been almost an argument on the merits of the Amendment to the Amendment which is not going to be called.

§ Mr. Bevan
I beg to move, in page 11, line 24, to leave out "a finding against him," and to insert: any finding of fact against him which is shown to have been made. Question, "That the words proposed to be left out stand part of the Bill," put, and negatived.
Question proposed, "That those words be there inserted in the Bill."

§ Lieut.-Colonel Elliot
I beg to move, as an Amendment to the proposed Amendment, to leave out "against him."

§ Sir H. Lucas-Tooth
I beg to move, in page 11, line 29 at the end to insert: Provided that nothing in this subsection shall prevent any such person from adducing any evidence for the purpose of explaining the nature of the fact or the circumstances leading up to or attending the same. The purpose of adding this proviso is to make certain that the position of a doctor, against whom a charge of adultery has been conclusively found, is not prejudiced by reason of that conclusive presumption against him and that he will be able to explain the circumstances of his fault—I think that is the best word to use. The proviso merely says that if there is evidence which he wishes to adduce, even though, on the face of it, that evidence may be calculated to negative the presumption—which he will not be allowed to do—nevertheless it would be admissible so as to explain the circumstances, to mitigate the offence and possibly to save him from the harsh penalty which could be inflicted upon him in view of the nature of his offence. I do not think I need say more in explanation.

§ Mr. Iain MacLeod
I beg to second the Amendment.
This is rather like the third act of a play; now that we have got rid of the extraneous characters who intervened on Tuesday, we have returned with the original cast to the consideration of the original problems. This Amendment does not in any way go so far as the Amendments which you, Sir, have decided will not be called.
It is common ground between both sides of the House that the burden of proof in adultery cases is considerably less than in criminal cases, and I think it is also common ground that a general practitioner can find himself in circumstances in which he has connived at a decision which he would like to challenge, not so much from the question of fact but of the circumstances that surrounded the decision which has been made against him. We do not seek to controvert the question of fact which has been proved, and which is accepted as proved before the Disciplinary Committee. We ask— 2726 and it seems elementary justice—that a general practitioner should be given the right—and it must be that—of explaining the nature of the facts and the circumstances which led him to connive, if that be the right word, at the proceedings which took place in the courts. I hope that the Government will be able to accept this proviso.

§ Mr. Hay
Since the Minister insists on sticking to the word "conclusive" in the preceding line, I feel that this Amendment will mitigate a very great deal of the rigour which otherwise would attach to the use of that word. Many of the remarks which I made earlier apply here. I think this Amendment will give the doctor an opportunity to state his case and to put forward any mitigating facts. I urge the Minister to accept it, because I think it will greatly improve the Bill.

§ Mr. Bevan
I have very great sympathy with the intention which lies behind the Amendment. Indeed, in Committee I suggested that the General Medical Council would only accept as a fact that adultery had been committed, following on the verdict of the court, but would address its mind—or could have its mind addressed—to the circumstances surrounding the decision. I had my knuckles rapped by one hon. and learned Member opposite for suggesting that the Council could consider the case. I have always been satisfied that it could consider the circumstances of the case, and I have been trying to envisage the sort of circumstances which would be held to be mitigating.
I think I can do it at this stage without running the risk of a long discussion. It seems to me fortunate that no language of the Minister or of hon. Members in this House is written into an enactment, unless it is so wished, and in this matter I can speak freely. We have a very peculiar set of circumstances. We are dealing all the while with the doctor who is alleged to have committed misconduct with his patient. That is the reason why it is necessary for us to keep in mind all the time that it would be unusual for the doctor not to know about that fact. If he were giving collusive evidence in a divorce case, assuming that collusive evidence is given, he would surely provide that evidence to one of his own patients, but I will leave that for the moment.
2727 If he did that, I should have thought he would have been guilty of other conduct than infamous conduct. Let us consider these circumstances, because when I was turning it over in my mind I thought that a very peculiar set of circumstances could arise. A doctor under the National Health Service has a maximum list of 4,000. If he is in partnership with two other people, then the three together can be responsible for lists of 12,000. As far as the general practitioners are concerned, until the people on the list have seen them as patients they are merely numbers on which the doctors receive capitation. But, technically, they may be held to be patients. In other words, when does a patient become a patient? Is it when a patient merely put the doctor's name down or is it when the doctor has been consulted by the person?
I am not mentioning this in order to set my legal friends arguing the matter, but merely to give it as an illustration that it would be quite competent for a doctor to say that he had never met such and such a person at all. A doctor could say, "I did not know this person was on my list. She had never been to me in a professional capacity." Surely it would be competent for a general practitioner to call the attention of the Disciplinary Committee of the General Medical Council to a fact of such substance as that. Indeed, my information is that the doctor could do so.
I am informed, therefore, that the Amendment is unnecessary because, as I said during the Committee stage, a doctor could ask the General Medical Council to consider all the circumstances of the case—first, whether the adultery was with a patient, which is a point I have just been making; secondly, if so, whether the doctors' conduct was infamous in a professional respect; and thirdly, if so, whether the case was such that his name ought to be erased.
As I say, where the circumstances surrounding the fact of adultery were such as to give rise to the assumption that he had been guilty of infamous conduct, this would have to be considered; but they cannot ask these questions without hearing evidence on them. I am informed that this is inherent in the General Medical Council procedure. Section 29 of the Medical Act, 1858, requires due 2728 inquiry, and if a doctor were denied the right to bring evidence of this kind the proceedings could be invalidated.

§ Mr. Hay
That is what happened in the case of Dr. Spackman, which we discussed the other night.

§ Mr. Bevan
I do not think it is necessary to adopt the language of the Amendment, and I hope, therefore, that hon. Members will not press it.

§ Lieut.-Colonel Elliot
We are not altogether reassured by the right hon. Gentleman's attitude, in that he holds that our Amendment is unnecessary, and that these rights already pertain to the plaintiff before such a court. We are, perhaps, a little uneasy about the preface or the exordium—if I may so call it—of the Minister's remarks in which he said that, fortunately, the language of no Minister could be written into an Act.

§ Mr. Bevan
Unless it were so done.

§ Lieut.-Colonel Elliot
Exactly. What we sought to do was humbly to say that this is a case of Daniel come to judgment, and that the judgment should be written in the books instead of remaining an obiter dictum of great interest and importance, but against which, as the right hon. Gentleman said, it would not be possible for anyone to appeal.
Still, we take it for granted that the proceedings before the General Medical Council, which, of course, are not exactly proceedings before a court of law, would be affected by the very clear indication which the Minister has given; that if evidence were being laid in the due inquiry which is prescribed by Section 29 of the Medical Act it would not be affected by what we have just written in this Clause that certain things should be conclusive. What we feared was that in writing this into what will shortly became an Act of Parliament we might thereby have impinged upon or shaved away some of the rights which the plaintiff might have before the General Medical Council. The Minister assures us in the most categorical fashion that that is not so, and that he has consulted his legal advisers on the matter, and that they are of that opinion also.
I take it that if, for any reason, it were found that this was being interpreted differently we should then be able to discuss whether the manifest intention 2729 of Parliament, which we are, at any rate as Members of Parliament, interpreting, would not then have to be made clear by some amending Measure or other which then we could place on the Statute Book. But apart from that I think we are grateful to the Minister for his explanation. I do not know what view my hon. Friends are willing to take upon the Amendment, but it certainly would not be our desire to have the matter carried to a Division.

§ Sir H. Lucas-Tooth
I beg to ask leave to withdraw the Amendment.