MEDICAL RECOMMENDATIONS (Hansard, 18 October 1982)

§ Mr. Geoffrey Finsberg
I beg to move amendment No. 4, in page 4, line 38, leave out paragraphs(a)and(b)and insert—l; '(a)compliance with that subsection would result in delay involving serious risk to the health or safety of the patient; and'.

Mr. Deputy Speaker
With this we shall take amendment No. 113, in page 4, line 38, leave out paragraphs(a)and(b)and insert—

(a)Compliance with that subsection would result in delay involving serious risk to the health or safety of the patient; and

(b)Compliance with that subsection would involve a delay of more than forty-eight hours from the completion of the examination by the first practitioner; and'.

§ Mr. Finsberg
Amendment No. 4 deals with the circumstances in which the two medical recommendations required for admission under the Act may both be made by doctors working at the receiving hospital.
The Bill, as amended in another place, provided that one of the circumstances that must be fulfilled is that there would otherwise be undesirable delay. But anxiety was expressed in Committee about what constituted "undesirable delay". Paragraphs(a)and(b)of clause 5(3) were the result of the efforts of my hon. Friend the Member for Basildon (Mr. Proctor) to make the position clearer. I recognise the anxiety, but I feel that the 48-hour time limit 138 is unduly restrictive. The amendment meets the Committee's worry by substituting for "undesirable delay" the expression delay involving serious risk to the health or safety of the patient". I understand that my hon. Friend is content, as the form of our amendment derives from an alternative that he put forward in Committee.
The hon. Member for Birmingham, Stechford (Mr. Davis) seems to want the best of both worlds--I do not blame him for trying—by taking our new paragraph(a)and retaining paragraph(b)with its 48-hour time limit. Let us suppose that on Monday afternoon a social worker knows that he cannot get a medical recommendation from an independent doctor until Wednesday morning. He and the first doctor may consider that it would involve serious risk to the patient's health and safety to wait until Wednesday morning; but Wednesday morning is still within the 48-hour limit. The hon. Gentleman would oblige them to take that serious risk and wait. Not only is that not acceptable, I doubt whether it is what the hon. Gentleman has in mind in trying to assist the patient and look after his health and safety.
I suggest that if the hon. Gentleman reconsiders his amendment, he will realise that it will not be of assistance. I hope that, on reflection, he will agree that Government amendment No. 4 goes as far as possible, and that he will not press his amendment.

§ Mr. Terry Davis
As the Minister explained, Government amendment No. 4 seeks to change the amendment made in Committee. We are discussing the relationship that should, or should not, exist between the two doctors who recommend admission under sections 25 or 26 of the 1959 Act. When we considered this part of the Bill in Committee, the Government suggested that the two doctors could be on the staff of the same hospital in certain circumstances, including the case where an undesirable delay could arise in waiting for a doctor not on the staff of the hospital to support the admission of a patient under sections 25 or 26.
The Committee considered the Government's position and debated several amendments. The Minister referred to a successful amendment tabled by the hon. Member for Basildon (Mr. Proctor), which had the full support of the Committee. We agreed that the hon. Member for Basildon was the ideal person to move the amendment, and he succeeded in amending the Bill. The Committee amended the Bill against the Government's wishes, and any departure from the normal requirement must be either in the best interests of the patient or where, there would otherwise be a delay of more than 48 hours.
The Bill, as printed, is not correct. The Committee passed an amendment which removed the reference to "undesirable delay" and replaced it with two points. First, it would be desirable to have two doctors with a relationship if it was in the best interests of the patient, or, secondly, if compliance with the requirement would involve a delay of more than 48 hours. For some reason that I do not understand, the Bill, as amended by the Special Standing Committee, was printed with the first of the two points correctly printed, but with the second mysteriously printed incorrectly. The mystery deepens because the Bill reads: compliance with that subsection would involve a serious risk to the health or safety of the patient 139 That expression is amazingly close to what the Government are now suggesting in their amendment. I do not know how that crept into the printed copy.
The reference to a delay of 48 hours has been mysteriously changed, but a correction slip has been printed for distribution with the Bill, and the Government are putting it right by tabling amendment No. 4. It goes some way towards the view of the Committee by incorporating a reference to serious risk to the health of the patient, but that is really defining the best interest of the patient". It is not the same as dealing with the delay. When we discussed the matter in Committee, the question of time was considered to be important. it was the purpose of the amendment tabled by the hon. Member for Basildon.
The merits of my amendment No. 113 are that it would keep the definition of the best interests of the patient by referring to the serious risk to health and safety. It would also retain the 48-hour limit, which was the clear wish of the Committee. The two things are different. The Minister seems to be confusing the two by suggesting that the 48-hour period is part of the definition of the best interests of the patient". It is not. It is an attempt to limit what is administratively convenient for the hospital.
The Minister explained the change by saying that he would replace "undesirable delay" by "serious risk" and that the alternative would be to wait for the arrival of a second doctor. He cited the situation where a second doctor was unable to arrive for perhaps three or four days, and said that would involve a serious risk to the health or safety of the patient". He suggested that the patient would be left waiting until the second doctor arrived.
That is not so. If it is not possible for the hospital to observe the 48-hour limit, it can use section 29 to admit the patient. If by waiting 48 hours the health or safety of the patient were put at serious risk, and it was considered desirable to admit the patient within six hours, the hospital could again use section 29. It is not fair of the Minister to suggest that the alternative to amendment No. 4 is that patients will be left in limbo waiting for a doctor to arrive.
Either the safeguards for doctors in sections 25 and 26 are observed or the hospital should be frank, honest and open enough to use section 29 to classify it as an emergency admission. It should not try to find a way of avoiding the safeguards which the Committee and, I believe, Parliament wish to put on the use of sections 25 and 26 by providing that there should not be a relationship between the two doctors.

§ Mr. Andrew F. Bennett
I rise briefly to support my hon. Friend. There are distinct advantages in specific time limits rather than a requirement such as "as soon as is reasonably practicable". If the Minister knew that this Report stage would finish by two or three o'clock, rather than "as soon as is reasonably practicable", he would be much happier.
Clearly, specific times and time limits concentrate people's minds. If a hospital must get hold of the second doctor within 48 hours, there is a much greater chance of that doctor, perhaps at some personal inconvenience, making himself available. Without a specific time limit, the tendency would be to say that something else is more important and tomorrow will do.
140 I am sure that the Minister can think of many instances where things have been done simply because a specific time has been laid down. With the best intentions in the world, things get put off if no specific time limit is involved.

§ Mr. Proctor
It was because of my sympathy with such arguments that I moved the successful amendments in Committee. However, I did say that I was not committed to the arbitrary 48-hour time limit, other than by the confines of debating procedure. It so happens that I had another variety of amendments on this matter and the phrasing that got into the Bill, perhaps a little earlier than it might have done, was my starred amendment which could be debated but not voted upon. An error has been made and the good sense in the second group of amendments has got into the Bill a little earlier than it should have done. It is for that reason that I support the Government amendment, which is, in fact, mine.

§ Mr. Geoffrey Finsberg
I am grateful to my hon. Friend the Member for Basildon (Mr. Proctor) for that extremely helpful intervention. My hon. Friend's original idea seemed to appeal to the Committee. That is why, on mature reflection, we felt it possible to table amendment No. 4.
The hon. Member for Birmingham, Stechford (Mr. Davis) has not quite taken my point about the need to have the patient looked after in the broadest possible sense as quickly as possible. The 48-hour period chains us too much. The hon. Gentleman asked "Why not use section 29?". He will recall that we debated at some length the reasons why it was as well to tighten up on section 29. Yet, he is suggesting that in this case we might use section 29. That is not the right way of doing it. The flexibility which has now been introduced would be removed by accepting the hon. Gentleman's amendment, which was supported by the hon. Member for Stockport, North (Mr. Bennett). It is much safer and wiser to put in the point about "undesirable delay". I hope that, in the light of my remarks and those of my hon. Friend the Member for Basildon, progenitor of all this, the hon. Gentleman might be persuaded to withdraw his amendment.

§ Mr. Terry Davis
The Minister is correct in his reference to frequent debates in Committee about the need to tighten up section 29. All hon. Members were concerned about the abuse of the use of section 29 as a means of avoiding the safeguards which were provided in sections 25 and 26. We were concerned about the amount of evidence on the abuse of the use of section 29 in circumstances where other sections were more appropriate. It was used only to avoid those safeguards; in particular, the safeguard of a second doctor's opinion.
The Minister will also remember that in Committee I made the point that, although we wanted to discourage the abuse of section 29, that did not mean that we should weaken the safeguards of sections 25 and 26. That would simply be shuffling the cases between sections. If we put in more loopholes to sections 25 and 26 and apparently reduced the use of section 29, because people would use sections 25 and 26 without observing the safeguards, that would be an abuse of the reform. I made that point strongly in Committee. I still hold to it and I am sure that the Minister will recognise that.
141 Nevertheless, I do not want to delay the House longer than necessary. I accept that there are some valid arguments in what the Minister has said about the effect of a 48-hour period. Therefore, I shall not press amendment No. 113. I shall accept Government amendment No. 4, especially in view of the enlightening explanation by the hon. Member for Basildon (Mr. Proctor). I thought that the Government printers had anticipated the Government's thinking. I now learn that they were simply taking account of the hon. Member for Basildon's thinking.

§ Mr. Geoffrey Finsberg
I beg to move amendment No. 5, in page 5, line 2, leave out 'at the hospital' and insert
'(whether at the hospital or elsewhere)'.

§ Mr. Deputy Speaker (Mr. Bernard Weatherill)
With this, it will be convenient to take Government amendments Nos. 6 and 7.

§ Mr. Finsberg
I can be brief because amendment No. 5 meets an undertaking that I gave in Committee in response to a point made by the hon. Member for Newcastle upon Tyne, East (Mr. Thomas). Amendments Nos. 6 and 7 meet points raised by the hon. Member for Lewisham, West (Mr. Price). I am glad that I have been able to respond to those two points.

§ Mr. Mike Thomas
I have no complaint about the Minister meeting his undertakings, which were given in terms in column 345 of the report of the Committee proceedings. I accept that he has met them. However, I am beginning to think that the Basildon experience is not unique. As a result of the Minister's phraseology, I am beginning to think that he has improper proprietorial aspirations in respect of amendments. I did not raise a point in Committee; I tabled amendment No. 12. What is the precise difference between leaving out "at the hospital", as proposed in my amendment, and this amendment? The only difference might be that the Minister can hope to claim credit for the amendment instead of me.