GUIDANCE ON PROFESSIONAL CONDUCT OR MEDICAL ETHICS (Hansard, 20 April 1978)

§ Mr. Moyle
I beg to move, Amendment No. 7, in page 6, line 36, leave out "guidance" and insert "advice".

Mr. Deputy Speaker
With this it will be convenient to take the following amendments:
No. 8, in page 6, line 38, at end insert but failure to follow such guidance shall not be taken into account at a hearing before the professional conduct committee". No. 47, in page 6, line 38, at end insert but such guidance shall not be taken as over-riding the doctor's freedom to follow his clinical judgment as to the best interests of his patients".

§ Mr. Moyle
We had quite an important debate on the kinds of advice that the 833 General Medical Council could give the medical profession in the light of developing technological and social environments in which medicine will have to be practised in the future. At that stage we made provision for guidance to be given to the profession by the GMC. As a result of a debate initiated by the hon. Member for Berwick-upon-Tweed (Mr. Beith), some doubts were cast upon the use of the word "guidance" or the concept of it that was then involved in the clause.
I have thought about the matter considerably since then. I have come to the conclusion that perhaps "guidance" might be too heavy a term to use for what we have in mind. Therefore, I move tonight that the word "advice" be substituted for "guidance". "Advice" I think, more accurately describes what we wish to achieve under the Bill.
This idea is acceptable to the existing GMC and the BMA. Therefore, it is likely to be accepted by the profession. I hope that in the circumstances this will be regarded as a suitable compromise, because I am sure that whereas from time to time the members of the profession might resent the leaders of the profession leaning too heavily upon them, situations will arise from time to time in which members of the medical profession will feel that a word of advice from the GMC might help them in solving particular practical problems.
If we call that help "advice", I think that it will give the flavour of the weight which is to be attached to the GMC's words. I hope that the House will accept the amendment in that spirit.

§ Mr. Beith
I welcome the consideration that the Government have given to this matter. I want to refer to the precise wording of the amendment in a moment. Quite rightly, Mr. Deputy Speaker, you have selected two other amendments to be discussed with it. One of them is related to the original amendment that I tabled in Committee, and one has been tabled by the Opposition Front Bench.
I have had doubts all along about this search for guidance which is thought to exist amongst doctors, this desire to be given clear guidelines from on high. It is not the same thing as legal advice of the kind to which hon. Members referred in Committee where doctors have 834 genuine difficulties but would perhaps be wiser to consult their solicitor or their professional organisation, if they are members of the BMA, for example, for specific legal advice related to the case with which they are dealing. No, it is a wider kind of guidance—or "advice", as we may subsequently call it.
The reason why I have had doubts about this—and they are very much prompted by the points put forward by my noble Friend Lord Winstanley in another place—is that I think it might be thought to circumscribe doctors who have ideas of their own and who wish to extend the frontiers of medicine, and, indeed, doctors who are concerned about the way in which medicine is going and have strong conscientious objections to some of the things that they are invited or encouraged to do. Whichever way one looks at this matter, if guidance becomes too firm and too hard, various categories of doctors could be adversely affected.
In another place my noble Friend cited the case of the Manchester surgeon, Mr. Wilson-Hay, who first took it upon himself to give to mountain rescue teams the means of administering morphia to severely injured and shocked casualties during mountain rescues. My noble Friend made the point that if Mr. Wilson-Hay had put to the GMC the question "Can I take this unusual step and do this?", he would almost certainly have got the answer "No". If he was to be a good doctor in the terms in which we sometimes seem to be thinking when we set up these advisory systems, he would have accepted that guidance and would not have done something which has become a general procedure since that time.
As the Minister rightly pointed out, there are many areas in which doctors have to make difficult decisions and in which it would be wrong to suppose that the decisions reached by the GMC ought in any way to be binding upon the doctor who tries to make clinical judgments in new fields in which new difficulties arise related to his own patients and the use of his own judgment. There are great dangers and difficulties with euthanasia, abortion and genetic engineering, for example, but our first temptation should not be to try to narrow the area of professional judgment. It is on those words 835 that the Opposition have rested their amendment, and I look forward to comments on that important point.
In Committee, I sought to limit the effect of this new provision by excluding the guidance from the consideration of a disciplinary hearing. The last thing I wanted was that a doctor should have the book thrown at him for having acted in contravention of the guidance of the GMC. Many people in representative medical circles, and in the BMA, were sympathetic to that amendment but in the end decided not to move in that direction.
Their reason was particularly strong. They wanted the other side of the coin, so that the doctor who had stuck by the GMC's advice would be able to use that in his own defence and say "I did what you guided me to do and followed the recommended procedure". That is foreign to the tradition of many doctors, but perhaps it is an increasing trend in such circumstances. But if we accept that and do not follow the line I suggested in Committee, we should still at least seek to prevent a disciplinary hearing from being dominated by the argument that a doctor had not followed guidance.
This has ramifications beyond the disciplinary hearing. Even in the courts, and certainly in public opinion, I should hate failure to follow guidance of the GMC to be taken as evidence of bad medical practice. That would be an unfortunate limitation on the clinical judgment of doctors.
We must herefore consider the phrasing here. I said that I welcome the Government's decision to change the wording, because "advice" has a different connotation from "guidance". It is possibly summed up in the common phrase "When I want your advice, I'll ask for it". The doctor who wants advice can seek and follow it and perhaps pray in it aid if criticised, while the doctor who says "I shall use my judgment as I have been trained to do so, and I do not agree with the GMC" can go ahead. He is free to say "When I want your advice, I'll ask for it". In those circumstances, I am happy to accept the Government's suggestion.

§ Mr. Crouch
I assure the House that this will be my last speech tonight, but I want to comment on all three amendments. I am no authority on words, but 836 I think that the hon. Member for Berwick-upon-Tweed (Mr. Beith) is right about Amendment No. 7. He made a wise speech. I agree with his distinction between advice and guidance. I assume that if Amendment No. 7 is carried it will render the other two amendments unnecessary. I like the new word better.
It was the absence of something along the lines of Clause 5 in the existing rules of the GMC which I noticed, and the arrival of this clause pleased me. Both sides of the House—and the third dimension, in the shape of the Liberal Party—have succeeded in improving the Bill a little more tonight. I agree with the hon. Member for Berwick-upon-Tweed. While I accept the Government's amendment of "advice" for "guidance", I also think that the Liberal amendment is very sensible.
11.0 p.m.
I think that the doctor, having heard the advice and listened to it, should be able to do the same as many men have listened to legal advice in the past and have said "I have paid for the advice and listened to it but not necessarily followed it." That is how advice should be received. It should be received on legal matters like that, and I imagine, as a non-medical man, that that is how it might be received by a medical man, that he is able to hear advice given by the GMC and is grateful for it. This is a new departure for the GMC, but the doctor is not necessarily obliged to follow the advice and it will not necessarily be held against him if he does not follow it. That is valuable.
Equally, Amendment No. 47, in the names of my hon. Friends, is sensible in this sense. It should not necessarily divert a doctor from his independent clinical judgment. This is the great independence of the doctor, whether he is an ordinary GP, an experienced GP or a consultant of eminent experience in the medical profession. In the end, it is his own judgment which matters and he can take what advice he likes. It is helpful that he is getting this advice. I am glad to see that we suggest in Amendment No. 47 the additional precaution to safeguard this precious provision which is given to the medical profession that in the end the doctor has absolute freedom of clinical judgment.
837 I welcome this, but, above all, I welcome Clause 5. The amendments will strengthen it considerably and make it much better law. That is what this place is all about. Even though it is late at night and few of us are here, we have given thought to this from both sides of the House. It has greatly improved the Bill, and I commend all three amendments.

§ Dr. Glyn
In Committee these matters were considered to be of considerable importance. It is only fair that the doctor should be able to get advice. There is a grey area between the strict legal interpretation of a statute and the ethical way in which a doctor should behave.
My hon. Friend the Member for Reading, South (Dr. Vaughan) made some good points in Committee and made clear that the whole idea of being able to get advice was that it should be only if it was required. The hon. Member for Berwick-upon-Tweed (Mr. Beith) was right, too. If the doctor wants advice it is there. Then, if he wishes to be able to quote that, he can say "What I did I did with the advice of the BMA". He is able to use it, but conversely if he fails to use it, it is quite right that that should not be held against him in subsequent proceedings.
In this very delicate balance between getting advice and whether he should take it we have struck the right balance for the doctor in getting the initial advice, and if he is brought before a disciplinary committee he is able to say "I will not use it", or say "I will quote it because I did exactly as I was told."

§ Dr. Vaughan
When we put down Amendment No. 47 we did not know that the Government would change the wording of Clause 5. I am pleased that they have and that meets our anxieties.
Clause 5, as my hon. Friend the Member for Canterbury (Mr. Crouch) said, is an important clause. Many of us did not realise the extraordinary situation that, until this Bill is passed, in medical practice a doctor may be unable to get any advice or guidance. I quoted to the Committee one or two very difficult cases where this arose. A doctor would go, for example, to the BMA or the GMC or one of the defence union protection 838 societies and ask "Should I or should I not do this?" One case I quoted was that of a pregnant minor who against the wishes of her family, wished to retain her pregnancy and not to have it terminated. It is extraordinary that those various bodies had to say "We cannot advise you until you have done what you think is right, and then you may or may not be taken to court and criticised for what you have done."
The clause deals with that, and the new GMC can if it wishes give guidance or advice. Our worry was whether, as my hon. Friend the Member for Windsor and Maidenhead (Dr. Glyn) has just said, if a doctor decided on clinical grounds in the interests of his patient not to follow that guidance, he could be penalised and find himself in difficulties with the disciplinary committee. The rewording suggested by the Minister is admirable. It removes that worry, so we shall want not to move our Amendment No. 47.