'No prosecution under this Act shall be brought without the prior consent of the Director of Public Prosecution.'—[Mr. Dismore.]
§ Brought up, and read the First time.9.33 am
§ Madam Speaker
With this it will be convenient to discuss the following: New clause 11—The Attorney General's consent (No. 2)—'.—No prosecution shall be instituted under the Act without the consent of the Attorney General.'.New clause 13—Liability—'.—This Act shall give rise to liability in tort only.'.New clause 15—Trials—'.—Any trial under this Act shall be only on indictment in the Crown Court.'.New clause 17—Restriction on publicity for proceedings—'.—(1) No person shall publish any material which is intended or likely to identify—
- (a) any patient in respect of whom proceedings are brought under this Act;
- (b) any defendant or witness in proceedings under this Act until the conclusion of those proceedings and then with the consent of the Court.(2) In any proceedings for an offence under this section it is a defense for the accused to prove that he did not know, and had no reason to suspect, that the published material was intended or likely to identify the person concerned.(3) In this section "publish" includes broadcast by radio, television or cable television and cause to be published and "material" includes any picture or representation.(4) A person who contravenes this section is guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale.'.
§ Mr. Dismore
I have tabled the new clause dealing with consent to prosecution not out of deviousness but 604 because it is an issue in which 1 have been interested for some time. In fact, I first raised it in a written question that the Solicitor-General answered on 22 November last year, in which I asked whether he intended to respond to the Law Commission report on the subject. I was pleased by the answer, in which the Government indicated that they were looking closely at the Law Commission's recommendations, which I shall examine in more detail shortly. The answer stated:The Government recognise that the current consent requirements are in need of reform and agrees with the Law Commission's view that a consent provision must attach to a particular offence not to a particular defendant or class of defendants.—[Official Report, 22 November 1999: Vol. 339. c. 23W.]When preparing for the debate, I refamiliarised myself with the Law Commission's report, "Consents to Prosecution", No. 255, printed on 19 October 1998. I was fascinated to see that the Law Commission specifically addressed the subject of the Bill. The section dealing with the problem of medical manslaughter starts at paragraph 5.36, on page 44. The commission states:We considered whether a consent requirement would be justified not merely in respect of certain offences but also in respect of other offences when they are allegedly committed by certain defendants—the reason being that such defendants if innocent, would suffer particularly serious harm in the event of a private prosecution. The only such case that we have been asked to consider is the question of the prosecution of doctors for manslaughter.That goes to the heart of the Bill. At paragraph 5.38, the Law Commission states:The starting point must be to bear in mind the strength of feeling understandably and inevitably caused by fatal accidents, and we appreciate the intense pressure that can be brought to bear by relatives of the deceased in seeking a prosecution. An acute illustration of this is said to arise when a person dies in hospital or where the relatives of the deceased believe that the person died as the result of some professional act or omission of the doctors. As we pointed out in the consultation paper, it had been suggested to us that criminal prosecutions, even if subsequently dropped before proceedings have concluded, would be likely to cause irreparable damage to the reputation of a doctor with the result that his or her career would be placed in serious jeopardy. On the assumption that this was correct, this raised the issue of whether, in those circumstances, consent should be required before doctors could be prosecuted for manslaughter.
The Law Commission carried out a thorough consultation on that proposal. It reported certain comments, which are instrumental in informing our debate. The report states:a few respondents thought the introduction of such protection, explicitly nor implicitly, should be limited to a specified class of persons predominantly those in the medical profession. The Recorder of Bristol thought the category should be restricted to professionals who were forced to make life and death decisions in the operating theatre, while Long more J—that is, Mr. Justice Longmore—gave as examples doctors, nurses and possibly other paramedical staff but pointed out the class should be fairly narrowly defined.The issue of paramedical staff is important in connection with the subject of the third group of amendments. The report continues:The Medical Defense Union asked for consideration to be given to other health-care workers whose position was similar to doctors and who could only work effectively in a climate of trust and confidence.
However, the Law Commission was not convinced by that argument. It concurred with and adopted an argument that was put to it, that no class of persons—in this case, 605 Doctors—deserved more protection than another in connection with prosecution for generic offences such as murder or manslaughter. The commission's conclusion was:we conclude that it would not be appropriate to depart from the fundamental principle so as to require consent for prosecutions of doctors for manslaughter—citingthe absence of any evidence that the working lives of doctors … have been substantially damagedso far by observance of that principle. It compared such cases to that of a bank manager accused of theft, or a schoolteacher accused of a sex offence. Therefore, on the face of it, it might appear that the Law Commission has adopted a position that is contrary to the one that I am advocating in my new clause. However, there is a real distinction to be drawn between the Law Commission's comments on the prosecution of doctors for manslaughter and the provisions of the Bill.
First, we must consider the subject of the Bill. On Second Reading, the hon. Member for Congleton (Mrs. Winterton) said that the Bill was designed topursue one simple objective: to restore the integrity of the fundamental principle of the law of murder. That is exactly what it does.The hon. Lady said that the focus of the Bill wasto try to restore the integrity of the fundamental principle of the law of murder and to make doctors responsible in law for their purposes in deciding on treatment of their patients.—[Official Report, 28 January 2000; Vol. 343, c. 689–691.]
I believe that there is a distinction between murder, which carries the certainty of a life sentence if the person is convicted of that offence, and manslaughter, where the range of penalties is much less severe. We shall examine that in the second group of new clauses.
There is a second distinction to be drawn. The Law Commission referred to a class of individuals who would be singled out and treated separately, as opposed to the offence itself.
The Bill creates a new offence. The new clause will apply to the requirement for the consent of the Director of Public Prosecutions to the new offence. It is therefore in line with the Law Commission's proposal.
§ Mr. Joe Ashton (Bassetlaw)
My hon. Friend will be aware that the Tony Bland case is highly relevant. Even after nine Law Lords had given permission for Tony Bland's life support machine to be switched off, Father James Morrow, a Roman Catholic priest who was strongly pro-life, went to court and took out a charge of murder against the doctor, the hospital administration and parents who gave their consent for, in his words,the boy to be starved.He failed in his attempt to persuade the police to take action against those who he claimed were responsible for Tony's death, and the case was thrown out of court. However, my hon. Friend is highlighting a real danger that could arise if the Bill is passed. That case is an exact example.
§ Mr. Dismore
I am grateful to my hon. Friend for citing that interesting example. There are others, which we may need to consider when we deal with the second group of new clauses. 606 My proposal with regard to the DPP can be compared with the provisions of the Suicide Act 1961. Much of the debate on the Bill has focused on the issue of assisted suicide. Section 2 of that Act deals witha person who aids, abets, counsels or procures the suicide of another.One must assume that doctors who became involved in assisted suicide would fall foul of the existing criminal law. There has been debate on the matter, and I would say in summary that the existing criminal law probably covers it.
Section 2(4) of the 1961 Act states thatno proceedings shall be instituted for an offence under this section except by or with the consent of the Director of Public Prosecutions.There are several parallels between that and the issues that we are discussing. For that reason, I believe that my suggestion that the consent of the DPP should be required is fair and appropriate.
What would be the alternative to provision for consent? The Law Commission considered the justification for requiring consent to prosecutions, and at paragraph 3.29 quoted the BBC's legal correspondent for news and current affairs, Mr. Joshua Rosenberg, who saidthat the aim of consent provisions was "to stop busybodies blundering in and prosecuting people in circumstances which would not be seen as appropriate".That language is rather strong and perhaps underestimates the powerfully held beliefs of those who are promoting and sponsoring the Bill, and who may want to institute prosecutions, should the Bill become law.
The matter is probably better dealt with elsewhere in the report, where the then Attorney-General is quoted in respect of the passing of previous legislation from which a similar issue arose. He said in 1959 that the purpose of consent was "to prevent vexatious proceedings", which is a more neutral way of putting it, andto restrict prosecutions in circumstances where a law has, necessarily, been drafted in broad terms, thereby creating the risk that it would catch those who had not offended against the spirit of the legislation.Many concerns have been expressed about the Bill, which the hon. Member for Congleton tried to assuage on Second Reading and in Committee, when she said that certain circumstances would not be caught by the Bill. However, my reading of the Bill may differ from hers, and the position may well be different if the matter is dealt with in the Crown court. Clause 1 is rather broadly drawn and could fall within that definition given by the Attorney General.
In its evidence to the Franks committee in 1972, the Home Office gave three good reasons why consent was required for prosecutions. The first was to secure consistency of practice in bringing prosecutions, so that different practices were not adopted in different parts of the country. For example, in some parts of the country, there might be particularly strong feeling about the matter covered by the Bill. The Conservatives talk about the relationship between NHS treatment and patients' postcode. It should not be possible for the postcode to be a factor determining whether or not a doctor is prosecuted.
§ Mr. Andrew Miller (Ellesmere Port and Neston)
My hon. Friend knows that I have done a great deal of work on road traffic deaths. One of the relevant issues that has given rise to concern is the matter of treating the scene of death as the scene of the crime. If my hon. Friend pursues the logic of his argument as a lawyer—which I am not—would a consequence of clause 1 be that the place of death would be treated as a scene of crime and investigated as such?
§ Mr. Dismore
My hon. Friend raises an interesting point. That is inevitable, and could have consequences for the NHS if a ward or operating theatre had to be blocked off for forensic examination. That could entail the facility being taken out of use for several days while the police conducted their scene-of-crime inquiries. My hon. Friend makes a valid and important point.
The Home Office also told the Franks committee that the purpose of requiring consent was to prevent abuse or the bringing of the law into disrepute, for example with the kind of offence that might otherwise result in vexatious private prosecutions or the institution of proceedings in trivial cases. The Home Office argued, too, that requiring consent would provide some central control over the use of the criminal law when it has to intrude into areas that are particularly sensitive or controversial. Whatever the hon. Lady may think, the Bill is controversial, whether one is for or against it.
§ Mr. Michael Trend (Windsor)
The Bill was fully discussed in Committee, and many of the complicated points that the hon. Gentleman is bringing up could have been raised at that stage. His speech will give rise to the suspicion that he is engaged in an attempt to wreck the Bill by talking it out today.
§ Mr. Dismore
I refute that allegation entirely. There are five new clauses in the first group, and all are detailed. When the hon. Gentleman hears how my argument develops, he will understand that consent to prosecution is an extremely important point, for the reasons that I am starting to outline. The vague wording of the Bill, the need to ensure consistency and—[Interruption.] If the promoter of the Bill is prepared to accept my new clause, I will not have to continue to explain why I think it is an important proposal. If she is not prepared to accept it, I have a job to do to convince her and the House. If the new clause is not accepted, I shall press the motion to a Division.
§ Mr. Ashton
My hon. Friend and the hon. Member for Windsor (Mr. Trend) know that the hon. Member for Congleton (Mrs. Winterton) chose the members of the Committee, as is always the case for a private Member's Bill. There were two members who were against the Bill—the hon. Member for Isle of Wight (Dr. Brand) and me. We had three sittings. It would have been impossible for two against 11 to analyse every point and every amendment—I am not a lawyer; the hon. Member for Isle of Wight is a doctor, but I am not. We also had a Second 608 Reading debate. Although the Bill does not cover Scotland, the hon. Member for Glasgow, Kelvin (Mr. Galloway)—
§ Mr. Deputy Speaker (Mr. Michael Lord)
Order. The hon. Gentleman has made his point. We do not wish to revert to the Committee stage. We must consider the new clause.
§ Mr. Deputy Speaker
Order. The hon. Gentleman has made his point. We must now consider the new clause.
§ Mr. Dismore
The Law Commission concluded that it was right to have restrictions on private prosecutions because of the harm that could result from an unsuccessful prosecution of an innocent defendant and from a successful prosecution that was not in the public interest. Since the consultation took place, the Law Commission presented in its summary of recommendations a series of circumstances in which consent should be required.
First, consent should be required when a defendant is reasonably sure that a prosecution would violate his or her rights under the European convention on human rights. The convention has been incorporated into United Kingdom law through the Human Rights Act 1998, which will take effect in the autumn. The new clause that I tabled on the applicability of the Human Rights Act was not selected for debate. I shall not therefore embark on an exposition of whether a defendant or those seeking a prosecution should be able to rely on the right to life that article 1 establishes. I have some anxieties about article 6, which I shall perhaps tackle later when we consider trial arrangements. It would clearly be open to a professional person who wanted to rely on convention rights to claim that the convention was applicable.
I shall not deal with the second category because I do not believe that it is relevant. The third category covers offences that create a high risk that the right of private prosecution will be abused and that the institution of proceedings will cause the defendant irreparable harm. That is potentially relevant to the Bill because there is a risk that private prosecutions could be abused.
My hon. Friend the Member for Bassetlaw (Mr. Ashton) referred to the attempted private prosecution in the Tony Bland case. There have been others. I would not describe them as an abuse of process because the law was unclear, and I attribute charitable motives to those who brought the prosecutions. They endeavored to use the law as it was perceived and to abide by it. The hon. Member for Congleton is trying to clarify the law, but whether the Bill achieves clarification or obfuscation is a matter for debate on Third Reading. I understand that she would like specific harms to be addressed; perhaps I would also like them to be tackled. However, I do not know whether the Bill achieves that.
The Law Commission's third category is important. It covers abuse of the right to bring private prosecutions and the effect on the doctor, whose career could be completely blighted by a prosecution even if it proved unsuccessful.
If consent to prosecution is required, it begs the question whether it should be that of the Attorney-General or that of the Director of Public 609 Prosecutions. The House is presented with both possibilities in new clauses 10 and 11. New clause 10 would provide for the consent of the DPP and new clause 11 would provide for that of the Attorney-General.
I acknowledge that there is a difficulty with consent by the DPP in current law. If consent by the DPP is required, it can currently be granted by a junior prosecutor in the Crown Prosecution Service. That would clearly be unsatisfactory in the circumstances that we are considering. The Law Commission recommendation deals with that point. It states that consent should be delegated only to the head of central casework. The Government have said that they will act on the Law Commission's recommendations on consent to prosecution. One of the key objections to making a prosecution conditional on the consent of the DPP rather than the Attorney-General has therefore been tackled.
There is a strong argument against making a prosecution conditional on the consent of the Attorney-General. The Attorney-General performs a different role from the DPP. That is highlighted in the Law Commission report. Paragraph 4.13 cites the Franks committee. It states:The Franks Committee was "in doubt" that there was widespread unease amongst those "outside governmental and Parliamentary circles" about the Attorney-General carrying out both political and quasi-judicial functions.The issues in the Bill are political, although not party political—there are proponents and opponents of it in all parties. If consent lay with the Attorney-General, who is an elected politician as well a Law Officer, there would be a risk of the decisions being subject to political influence.
I have no reason to question the integrity of my noble and learned Friend the Attorney-General or my hon. and learned Friend the Solicitor-General. They are both men of high professional calibre and great integrity. However, one never knows who will fill those offices in future. If my hon. Friend the Member for Waltham stow (Mr. Gerrard) presses new clause 11, I will vote against it.
Consent to prosecution is important and could be incorporated in the Bill. I cannot understand the objection to it, unless those who support the Bill want access to private prosecutions. They are already subject to all sorts of controls—for example, by the DPP—that the Law Commission sets out. However, I shall not go through them, because I do not want to be accused of trying to string out the debate. Requiring consent would introduce some consistency in the Bill.
New clause 13, which my hon. Friend the Member for Southampton, Test (Dr. Whitehead) will move later, makes an interesting suggestion. I am afraid that I must oppose it because I do not believe that it is sensible. It states:This Act shall give rise to liability in tort only.If it read "liability in tort as well", I would be keen to support it. When I examined the way in which tort applied to the circumstances covered by the Bill, I found many interesting features.
I must declare an interest; before I became a Member of Parliament, I made my living by bringing claims in tort on behalf of people injured in medical, industrial and road accidents. However, I did uncover some of the lacunae in 610 the law when preparing for today's debate. If one wants to sue a doctor, one generally sues for clinical negligence. There have been many debates in the House and the wider community on medical negligence.
To prove medical negligence, one has to satisfy an extremely broad test—the Bolam test. The claimant has to satisfy the court that the care was not in accordance with the practice accepted as proper by a responsible body of medical opinion. The only alternative to the Bolam test deals with informed consent.
Informed consent features in the Chatter son v. Gerson case of 1981. That case showed that the courts take a tough line on informed consent. The lady in the case suffered unpleasant treatment, to which she claimed she had not consented because the problems had not been explained. I shall not go into the details of the case unless I am asked to do that. The lady sued for negligence and the criminal tort of battery. Battery in civil law is different from assault and battery in criminal law. I received a Library briefing on the matter. It states that the courts are uncomfortable with the idea that doctors acting in good faith could be guilty of battery in civil law. There is a lacuna in the law.
A doctor could become involved in the evils that the Bill is trying to prevent but, if he had acted in accordance with the Bolam principles and in line with a responsible body of medical opinion, he would not have committed medical negligence. Equally, consent may not arise simply because a patient is dead and there is no evidence. Therefore, the doctor could not be convicted of battery. Even if that were not the case, battery may not be sustained in tort for the reasons that I have given.
§ Mr. Miller
I am trying to follow my hon. Friend's arguments, but, like all lawyers, he confuses me. How is that point relevant? I see his point about the new clause tabled by my hon. Friend the Member for Southampton, Test (Dr. Whitehead), and look forward to listening to him, but surely medical negligence would automatically follow if the doctor had been charged with a criminal offence and successfully prosecuted under the Bill.
§ Mr. Dismore
I am grateful to my hon. Friend for his intervention because, when I began my research last night, I found that such a conclusion does not necessarily follow. Logically, it should follow that someone found guilty of a criminal offence in such circumstances has committed clinical negligence, but the doctor or those convicted of a criminal offence could still have acted in line with a responsible body of medical opinion—for example, if the British Medical Association guidance had not changed. Although he could be convicted of a criminal offence under clause 1, he would not necessarily be guilty of medical negligence at common law or of the common law tort of battery.
§ Mr. Deputy Speaker
Order. The hon. Gentleman is in danger of addressing his learned remarks to the jury. He should address the Chair.
§ Mr. Dismore
I apologise, Mr. Deputy Speaker. There is no jury in a tort case, so I would address the judge. Were you in that capacity, I would have offended doubly.
§ Mr. Michael Jabez Foster (Hastings and Rye)
Would my hon. Friend's point matter? Would not such a doctor 611 be guilty of a breach of statutory duty? Therefore, the civil remedy would follow and whether he was guilty of professional negligence would be irrelevant.
§ Mr. Dismore
My hon. Friend describes a possibility, but the key issue is that the matter could be dealt with by the Bill, in part through new clause 13, which has been tabled by my hon. Friend the Member for Test and would incorporate tort into the Bill. I dislike laws that are unclear and vague to the general public—my hon. Friend the Member for Hastings and Rye (Mr. Foster) is a lawyer, too—and a gap could be plugged by incorporating tort. I sympathise with the view of my hon. Friend the Member for Test, but on the proposal that we should have a new tort based on the statutory duty, I answer my hon. Friends by saying that the courts would have to construe whether the act itself also gave rise to civil liability.
My hon. Friend the Member for Hastings and Rye will be aware of the line of cases dealing with some crimes that do not give rise to statutory duty. The most obvious example is the Health and Safety at Work, etc. Act 1974. Criminal offences were created, but no civil liability followed. A court could construe clause 1 as imposing no statutory duty actionable at common law in tort, but criminal liability only.
§ Dr. Alan Whitehead (Southampton, Test)
I have tried to follow my hon. Friend's arguments closely, but, as I am not a lawyer, I have failed. Does he accept that the difference between the Bill's wording in respect of intention and in respect of purpose creates a space that needs to be defined in terms of penalties?
§ Mr. Dismore
I disagree not with what my hon. Friend wants to achieve, but about whether the new clause will achieve it. If the Bill progresses, I would be one of the first to say that it is entirely appropriate for the most severe criminal penalties to flow from the creation of the new criminal offences. As the hon. Member for Congleton has said, they would be akin to murder should her Bill find favours. However, there should be civil liability in addition to—not instead of—those criminal penalties. My argument with new clause 13 is that it would take away the Bill's criminal measures. I suspect that the prime object of the hon. Member for Congleton in promoting the Bill was to put in place criminal liability, but there is room in the Bill not merely for one but for both. If we were in an either/or situation, I would take issue with my hon. Friend.
To return to consent, the parties are much more in control in civil litigation, which is a good way of getting to the truth. It may be more appropriate because the standard of proof is not as high as in the criminal law, which requires a case to be proved beyond all reasonable doubt. Decisions in civil litigation are made on the balance of probabilities. Incorporating civil liability would provide an additional option to those aggrieved by the actions of the doctor concerned. If they felt that they could not satisfy the criminal standard, they could at least take action on the civil standard.
Despite all the reforms introduced by Lord Woolf, the civil law is slow, costly and risky. Following on from the point made by my hon. Friend the Member for Test, the remedies available are weak, and the courts can only award damages in these circumstances. The Law Commission's recent report on the damages that should 612 be awarded in fatal cases severely criticises our existing law, which, for example, provides a pittance to the relatives of children who are killed, in the form of the bereavement payment of only £7,500. I have lobbied the Lord Chancellor's Department to persuade it to increase that figure. The Law Commission has made proposals to increase the damages available at civil law, but they would still be woefully inadequate. Although I agree with my hon. Friend that tort should be an option, it should not be the only one. If the Bill finds favours with the House, criminal penalties should flow from it.
New clause 15 deals with indictment, which is important. Again, we have a lacuna in that the Bill does not deal with how a trial should be carried forward. I am sure that you, Mr. Deputy Speaker, have been following as closely as I have the controversy in the other place and in the press at large over the Criminal Justice (Mode of Trial) (No. 2) Bill, which deals with whether cases should be tried in Crown or magistrates courts, with particular reference to the either-way offences. We shall debate that more fully in the House in due course. I would hate to see this Bill somehow fall through the lacuna created by the mode of trial Bill because it does not address that issue.
I would support my hon. Friend the Member for Wentworth (Mr. Healey), should he put his new clause to the vote to ensure that trials take placeonly on indictment in the Crown Court.As the hon. Member for Congleton said on Second Reading, these extremely serious offences are akin to murder and, if murder is to be the benchmark for the new offence, it could be tried fairly only before a judge and jury. We must rely on the jury's good sense to decide whether the offence has been committed.
New clause 17 deals with publicity restrictions on prosecutions. If the hon. Member for Congleton does not see her way to accepting it, I shall push it to a Division. The Human Rights Act 1998 refers to article 6 of the European convention on human rights, which deals with the right to a fair trial. The new clause would provide protection for the patient in respect of whom the proceedings were brought, or perhaps the memory of that patient, as well as for the witnesses and the defendant—the doctor on trial.
Article 6 of the Convention deals with the circumstances that give rise to the right to a fair trial, and the need for trials to be conducted publicly. It goes on to say, however, thatthe press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
I suspect that article 6 will be considered a fair amount once it comes into effect in the autumn. A point frequently made by the defense during the trials by tabloid that take place nowadays is that the defendant's right to a fair trial has been prejudiced by the publicity which has poisoned the minds of the jury in advance of the case. When article 6 comes into force that will be the position with knobs on. Prosecutions of doctors in these circumstances inevitably attract a huge amount of publicity long before they get anywhere near the courts. I venture to suggest that, under article 6, the defendant's position could well be prejudiced.
613 My hon. Friend the Member for Bassetlaw mentioned the publicity surrounding the private prosecution in the Tony Bland case. In Committee, the hon. Member for Congleton referred to the prosecution of Dr. Moor, who was alleged in the Crown court to have committed murder in killing a patient suffering from cancer by administering a dose of diamorphine. Again, the media circus surrounding the case was considerable. I am pleased to say, from Dr. Moor's point of view, that he was acquitted, but, having looked at the press cuttings, I think that whether the trial was conducted fairly from the point of view of either the prosecution or the defense is open to question.
§ Mr. Ashton
My hon. Friend may not be aware that there have been 80 similar prosecutions in America, not one of which has been successful. In such cases, it is virtually impossible to prove anything beyond reasonable doubt.
§ Mr. Dismore
I think my hon. Friend is making a slightly different point. What I am concerned about is ensuring a fair trial; I am also concerned about protecting the defendant.
§ Mr. Trend
There is a further complexity. I know that this is not a direct parallel, but, according to the hon. Gentleman's proposals, a case such as the Shipman case might be held in camera. Surely what the hon. Gentleman calls the media circus was helpful, in terms of the public good, in the Shipman case.
§ Mr. Dismore
The hon. Gentleman should read the new clause a little more closely. I am not saying that there should be no publicity surrounding the case; I am saying that the publicity should follow, and not necessarily precede, the case. The new clause deals with circumstances in which it is open to the judge to say at the end of the case, "All bets are off. You can talk about the defendant." If the defendant is acquitted—Dr. Shipman was not acquitted, but Dr. Moor was—the position may be rather different. Irrespective of Dr. Moor's acquittal, what was the damage to his professional reputation as a result of his unsuccessful prosecution for murder? The new clause deals with that by allowing the judge to name the defendant at the end of the trial, and to allow everything that has gone on during the trial to be reported.
To an extent that already happens. Reporting is restricted in any event during a trial, but, once it is over, plenty of publicity can follow if a conviction is secured.
§ Mr. Miller
I found myself dealing with those very circumstances when one of my constituents was charged with murder in the United States. The difficulty lay in striking a balance between publicity that was beneficial to my constituent's defence—if it could be said to be beneficial for us to be followed everywhere by the wretched media circus, both in the courtroom and outside—and no publicity. I think that it would have been better for my constituent if there had been no publicity.
614 I do not think that the Shipman case can be separated from that case purely on the basis of the scale of Shipman's appalling offences. I feel that there must be a general rule covering all cases. Perhaps it is best to allow the judge to make the decision. Is that what the new clause does?
§ Mr. Dismore
Yes, it is a case of "On the one hand…on the other hand". My hon. Friend may have heard the old joke, "Please find me a one-handed lawyer."
If we do not address the matter in this way, by the time it reaches the judge it may be too late. If restrictions are not there in the first place and the judge tries to impose them after the event, he will be closing the stable door after the horse has bolted.
§ Dr. Whitehead
I have read the new clause carefully, and it seems to me to constitute a catch-all publicity ban in all cases brought to court under the Bill, which, as we have established, concerns purpose rather than intention. It appears that there can be a range of degrees of prosecution. In some cases, it might be argued that disclosure was in the public interest; in other, borderline cases, it might be clear that it would be difficult not to prejudice the jury. I am thinking of cases that are very finely balanced. Does my hon. Friend agree that his new clause does not distinguish between those two sets of circumstances, and thus over-eggs the pudding by failing to allow disclosure when it is clearly in the public interest?
§ Mr. Dismore
I see my hon. Friend's point, but I think he has misunderstood the Bill. It is an all-or-nothing Bill. My hon. Friend sees the distinction between the two sets of circumstances and the wider public may also see it, but the Bill does not provide for the question of degree. It provides for one thing only: an extension of the law of murder. Only one count—effectively, a charge of murder—is available under the Bill, and only one sentence—life imprisonment—is available for murder under English law. There is no room for argument.
Although the circumstances were very different, Dr. Moor faced exactly the same charge as Dr. Shipman. At present, the law does not draw a distinction between Dr. Shipman and a doctor who is trying to do his best for his patient—in the case of Dr. Moor, by administering diamorphine to ease pain, but having the parallel effect of hastening death. If the Bill is passed, someone like Dr. Moor will be in exactly the same position as a mass murderer like Dr. Shipman. The restrictions that I propose are important to protect Dr. Moor, not Dr. Shipman.
Another aspect is the fear of lynch law. I say this with some diffidence, but again there is a distinction to be drawn between Dr. Moor and Dr. Shipman. After his arrest, I believe that Dr. Shipman was held in custody pending trial. Someone who is held on remand pending trial is protected to a degree in prison. Dr. Moor, however, would presumably have been out on bail pending his trial.
In the United States, people campaigning on the issue of abortion—which has some parallels with this issue—have behaved in a lynch-law manner towards doctors 615 accused of being abortionists. There is a website file listing the names and addresses of doctors, with old wild west-style "Wanted" posters. Four doctors and two clinical workers were killed; they were simply crossed off the list. A sniper used a high-powered rifle to kill a doctor as he stood in his kitchen. The same sniper was linked to several similar attacks on other doctors.
I am concerned that if the names of doctors who are being prosecuted get out, as they would be out on bail they would be at risk from people who felt strongly about these issues taking the law into their own hands, because we do not have the death penalty. The hon. Member for Congleton supports the death penalty. If it were in force, she would presumably be prepared for the natural consequences of her argument, so, should the Bill become law, a doctor prosecuted for murder under clause 1 would face the death penalty if convicted.
The issue of reporting restrictions is dealt with in the Youth Justice and Criminal Evidence Act 1999. The Government published a consultation report "Speaking up for Justice" on the treatment of vulnerable and intimidated witnesses.
I shall leave the defendant and deal with the parts of the new clause that concern the protection of witnesses and the name of the victim—the patient. It is important to bear in mind the fact that, from the prosecution point of view, we must protect witnesses—other medical professionals—not just from the ire of those who promote the causes that the Bill would prevent, but from other medical professionals who may ostracise witnesses for the prosecution who have come forward with evidence against one of their colleagues. I suspect that we have all experienced this in our professions. People who have broken ranks could be severely victimised for giving evidence for the prosecution. They are equally entitled to the protection of the law through anonymity, pending the outcome of the trial.
§ Mr. Michael Jabez Foster
My hon. Friend said that the hon. Member for Congleton (Mrs. Winterton) was in favours of the death penalty. Is he sure about that, because my principled support for her Bill was on the basis that she believed in the sanctity of life? I would welcome his confirmation that that is what he said and what he believes to be the case.
§ Mr. Dismore
I understand that to be the position. The hon. Lady is in her place, and I would happily give way to her should she want to correct the record if I have misrepresented her position. I see that she is not asking me to give way, so I assume that I have correctly stated her position that she is in favours of the death penalty. It would inevitably follow from a prosecution under clause 1—because she equates withdrawal or withholding of treatment to murder—that the doctor would face execution if she had her way.
§ Mr. Kevin McNamara (Hull, North)
My hon. Friend will recall that when the Human Rights Bill was going through Parliament, I moved the only successful amendment against the Government, which took the death penalty completely out of British law. I also support the Bill. I hope that he and my hon. Friend the Member for Hastings and Rye (Mr. Foster) will bear that in mind.
§ Mr. Dismore
My hon. Friend is correct. The death penalty is not part of United Kingdom law, and I welcome 616 that. I have been a long-standing opponent of the death penalty. However, who knows what will happen in a future Parliament? We know from our constituency work that many people support the death penalty. Should the hon. Lady's party come to power and a future Conservative Government be filled with people like her, who knows what legislation they would introduce? If I were still here, I would vote against the reintroduction of the death penalty, but neither this Parliament nor any other can bind its successors. I am highlighting the logical consequence of the hon. Lady's beliefs.
Before the interesting intervention of my hon. Friend the Member for Hastings and Rye (Mr. Foster), I was expressing my concern about the protection of prosecution witnesses.
§ Mr. McNamara
I am sorry to pursue my hon. Friend on this issue, but he will recall that the Government's argument was precisely the one that he has just advanced: that one Parliament cannot bind another. The amendment that I moved does, in fact, bind a future Parliament. If we tried to alter the decision now that we have accepted the protocol on capital punishment, we would have to remove ourselves from the whole of the convention and from the Council of Europe.
§ Mr. Dismore
I should be happy to engage in a debate with my hon. Friend on these issues in the Tea Room afterwards. I have made my point, and he has made his. It is extremely important that we protect witnesses when they are giving evidence against a fellow professional. The nurse who thinks that a surgeon has done something a bit peculiar and goes to the police should be protected from the risk of victimisation by colleagues. People from whatever profession tend to close ranks against those who break them, and such medical professionals could be very exposed. Equally, witnesses giving evidence for the defense could be subject to the same pressure and intimidation as the defendant in the run-up to a trial.
That is why I think that the provisions on the protection of witnesses in the Youth Justice and Criminal Evidence Act 1999 should be extended to prosecutions under this legislation. However, I would go further than that and offer protection to the defendant. I hope that the hon. Member for Congleton would not dispute that such protection should also be offered to the deceased. It is not right or proper that someone who is no longer with us, and who is perhaps incidental to the prosecution, should be dragged through the courts when they have not consented to it because they are not in a position to do so. The individual's memory would be examined in the court.
I hope that the House will accept new clause 10 on the consent to prosecutions by the DPP, for the reasons that I have given. Should my hon. Friend the Member for Walthamstow press new clause 11, I hope that the House will reject it. I shall vote against it, because I think that the DPP is the more appropriate person to give consent than the Attorney-General. Although I agree with the sentiments expressed in new clause 13, tabled by my hon. Friend the Member for Test, which would bring tort into the legislation, I think that 617 we need tort as well as criminal penalties. I support the suggestion that prosecution should only be on indictment, and I think that we need public restrictions for the reasons that I have outlined. I shall therefore press new clause 17, should it not be acceptable to the proponents of the Bill.
§ Mr. Edward Leigh (Gainsborough)
I believe that these new clauses are unnecessary. I do not believe that the intervention of the Attorney-General or the Director of Public Prosecutions is necessary in what I believe will be clear matters. I shall explain why the law, once the Bill is enacted, will be quite clear and why it will not be necessary for the Attorney-General to vet any prosecutions.
In our common law, it is clear that it has always been wrong to bring about another person's death except for reasons of justice. That principle is based on the inviolability of human life. It is an absolutely clear and simple principle, and it has never been necessary to test these matters with the Attorney-General, the DPP or the House—it has been clear since time immemorial. Intentionally to cause the death of an innocent person has always been to commit the crime of murder.
§ Mr. Leigh
May I make a little progress, as I have only just started?
The Bland case recognised that, on the contrary—this is why it is so important—murder can be committed by an act of omission as well as by a positive act. It is my belief that the judgment in the Bland case contradicted the traditional principle that every human being has an inherent worth or dignity. It follows from that that just because I or anyone else thinks that a human life is no longer worth while, we do not have the right to end it. We do not have the right to make that judgment on the worth of any human life as individuals, parliamentarians, doctors, Attorney-Generals or DPPs. Human life is inherently worth while.
Anthony Bland died on 3 March 1993 of thirst consequent on feeding being withdrawn. He breathed and digested food unassisted, but the court found in that case that to continue feeding him was futile. It took the view—no one else did so: not the House, not the Attorney-General, not the public—that his life was no longer worth while.
§ Mr. Russell
The situation affected my first daughter on a life-support machine. When the life-machine was turned off, was that euthanasia, was that murder or was that compassion?
§ Mr. Leigh
I realise that this is a terribly sensitive subject. I think that we are all deeply sympathetic to the hon. Gentleman and to the intervention that he has made. It underlines the great care and sensitivity with which we should approach these matters, but I hope that he will not mind my saying that we are talking about a different situation. It has always been recognised that doctors have 618 the right to turn off a life-support machine. I will explain why, if the Bill is passed, that will continue to be the case, but I understand the point that the hon. Gentleman is making.
Lord Mustill said in the judgment on the Bland case:The acute unease which I feel about adopting this way through the legal and ethical maze is I believe due in important part to the sensation that, however much the terminologies may differ, the ethical status of the two courses of action is for relevant purposes indistinguishable—that is, between a positive act and an omission. That is an important admission. It goes to the heart of what we are talking about.
As a result of the Bland case, the floodgates have opened. As the British Medical Association, in its 1999 document entitled "Withholding and Withdrawing Life-prolonging Medical Treatment" recognised, the Bland case opened the right to withdraw tube feeding from those with severe dementia or strokes. That is what worries my hon. Friend the Member for Congleton (Mrs. Winterton) and others who speak on these matters.
We believe that doctors should not have discretion to pass judgment on the worthwhile ness of human life. That, we believe, is incompatible with the dignity and inherent worth of life. All the Bill excludes—it is very clear; the courts can make a simple judgment—is a doctor's withdrawing treatment for the purpose of ending life. It allows doctors full discretion to take a view on whether the treatment that he is performing on the patient in very difficult circumstances is likely to benefit the patient significantly, or whether it will cause too much pain or too much discomfort for no discernible benefit.
Opposition to the Bill is, broadly speaking, based on the belief that severe decision-making problems will be imposed on doctors if the Bill is passed. Its opponents say that that is why we must have the new clauses. In fact, clause 1 is very clear. It states:It shall be unlawful for any person responsible for the care of a patient to withdraw or withhold from the patient medical treatment or sustenance if his purpose or one of his purposes in doing so is to hasten or otherwise cause the death of the patient.That is clear and understandable. Let me explain why we do not need the highest Law Officers to take part in the decision. To understand clause 1, which is the guts of the Bill, we need a common-sense understanding of the word "purpose."
§ Dr. Peter Brand (Isle of Wight)
Does the hon. Gentleman recognise that there is a difference between ordinary means of intervention, and extraordinary means of intervention, or not starting treatment? There is a difference between ordinary treatment and extraordinary treatment, as has been recognised by the Catholic bishops in their recent paper on euthanasia and the withholding of treatment. Is he suggesting that clause 1 draws a distinction? Does it give guidance to doctors and to those who care for patients as to the level of treatment that would be expected?
§ Mr. Leigh
I shall try to explain why clause 1 is very clear. The hon. Gentleman draws attention to what the Catholic bishops said. I would not want to disagree with them in any way, and I am not sure that I am disagreeing with them because clause 1 is very clear: it deals with a deliberate act or omission the purpose of which is to end a life.
619 We easily distinguish someone's purpose in taking a particular action from the consequences, even the foreseeable consequences. The mere fact of the consequences being foreseeable does not necessarily mean that any doctor would fall foul of the Bill. Thus, for example, a foreseeable consequence of regular jogging is that I wear out my footwear, but wearing out my footwear is no part of my purpose in jogging; my purpose is to go for a run, maintain my health and so on.
If I drive 200 miles across country, I use petrol. That is a foreseeable consequence of what I am doing, but that is not why I drove 200 miles across country. I drove the 200 miles because I wanted to visit my friend. Therefore, the law is very clear about purpose and foreseeable consequence. An unnecessary smokescreen has been deliberately put up to envelope the Bill. The law is very clear.
§ Mr. Miller
I have much respect for the hon. Gentleman's views on some of the difficult moral and ethical issues that arise both in this country and throughout the world. The other day, we took part in a debate on the matter in Westminster Hall. Am I following him correctly? Is he saying—I accept his analogy with the shoes and jogging—that purpose means intent and that, therefore, if the intent is clear, only one logical charge can be pursued under the Bill?
§ Mr. Leigh
Yes. Broadly, the hon. Gentleman makes a good point. That is why the new clause is important and interesting. It claims that the matter is so difficult that we will never be able to work out intent and that it somehow becomes a political issue that needs the participation of the Attorney-General or the DPP.
It makes an enormous difference both to the protection of patients and to the character of medical practice whether we allow doctors to aim at hastening the death of their patients, for if we think that it is an acceptable purpose for doctors to have, we are in effect inviting them to decide if and when their patients no longer have worthwhile lives. However, it is incompatible with a fundamental moral assumption of our law that people should be thought eligible to have their lives ended because someone has judged their lives no longer worthwhile. Hence the Bill declares unlawful the withholding or withdrawing of medical treatment or sustenance if it is part of one's purpose in doing so to end the life of the patient.
Let me deal with problems that have been raised by Members who are doctors in the House and by other doctors in the BMA—[Interruption.] I apologise for the term "Doctors in the House".
§ Mr. Leigh
They are not. The hon. Gentleman is right.
The measure does not make unlawful the withholding or withdrawing of medical treatment if that treatment cannot or can no longer provide any therapeutic benefit, or if, in one way or another, it has become unduly 620 burdensome to the patient. Thus, it will be reasonable to discontinue artificial ventilation of a patient when all other therapeutic interventions have failed. Artificial ventilation is characteristically employed to keep a patient alive, providing doctors with an opportunity for therapeutic interventions designed to save the patient's life.
On intent, the fact that death immediately follows the turning off a life-support machine is not part of one's purpose in discontinuing artificial ventilation, even if death is a foreseeable consequence of so doing. It is very important that we understand that point. If I turn off a life-support machine, a foreseeable consequence is that death will follow for the person on the machine. However, although that would be a foreseeable consequence, the action would not fall foul of the Bill because, quite clearly, my intention would not be to cause the death of the patient.
§ Dr. Jenny Tonge (Richmond Park)
First, if one knows the consequence of an action, one surely knows that the purpose of that action is to deliver the consequence. There is no distinction. Secondly, is not artificial feeding akin to artificial respiration? If either is withdrawn, the patients will die.
§ Mr. Leigh
We do not contend that they are akin. That is why the Bland case was so important, and the judges themselves admitted that they had such difficulty in finding their way through that moral maze. The judges themselves reached the conclusion that there was no difference between omission and a positive act. They simply took the view that Tony Bland's case was not worth while. Tony Bland could breathe and digest food. The consequence in his case was not only foreseeable, but the result of a deliberate act.
§ Mr. Deputy Speaker
Order. The hon. Gentleman is making quite a complicated point that is more appropriate to Second Reading to justify his argument on new clause 10. Although I appreciate that, I should be grateful if he and other hon. Members could deal more directly with the new clauses in this group.
§ Mr. Leigh
I apologise, Mr. Deputy Speaker; I realise that we are on Report. I wanted to try to conclude my speech, but there have been several interventions. I had better not give way again.
I think that I have made my point, which is quite clear. Quite simply, nothing in the Bill obstructs good medical practice. Nothing in the Bill need inspire fear in doctors. It is not necessary for us to raise the matter to the political sphere and to involve the Attorney-General and the DPP.
§ Mr. Leigh
No, I cannot give way. I could be called to order if I did.
All we have to do is simply to have a clear view on the worthwhile ness of human life, and a clear view that doctors must not act or omit to act with the deliberate intent of ending someone's life or denying the inherent dignity of that life. The Bill is clear on those points. The new clauses are not necessary.
§ Mr. Ashton
I shall concentrate on new clauses 10 and 17, but especially on new clause 17. My hon. Friend the Member for Hendon (Mr. Dismore) has made many technical and erudite points—as they should be, because we are considering a matter of law—but we should also take into account the reasons why we are debating the Bill and some of its potential consequences.
As many people know, tomorrow is the anniversary of the Hillsborough disaster. On 15 April 1989, 96 young people were squeesed to death, with four more young people dying subsequently from the injuries that they sustained on that day. The disaster has led to 11 years of trauma, grief, analysis and debate—resulting ultimately in the Medical Treatment (Prevention of Euthanasia) Bill.
I was present at the Hillsborough disaster. I was no further from those who were crushed than you are, Mr. Deputy Speaker, from the Strangers Gallery. I saw everything that happened on that very sad day. Other hon. Members were there as eyewitnesses. Eddie Loyden, who is now retired, was at the ground and so were my hon. Friends the Members for Houghton and Washington, East (Mr. Kemp)—who was elected to the House in 1997—and for Nottingham, East (Mr. Heppell).
No one who went through that trauma could ever forget it. We gave evidence to the Taylor report inquiry, although not to the inquest. Just after the disaster, I became a director of the club. For many years, I have been very heavily involved in the matter and its consequences.
Arising from the disaster was the case, which has been mentioned many times, of Tony Bland, who was 18. He was starved of oxygen when he was crushed against the barriers for a considerable time. He was later diagnosed as being in a—it is a medical term—persistent vegetative state. His parents lived in Keighley, and he was cared for at Airedale general hospital.
About eight months after the disaster, Tony Bland's neurologist was informed by the Medical Defense Union and the district coroner that, if the doctor disconnected the feeding tube, under the law as it then stood, he could be open to a charge of murder or manslaughter.
The case dragged on for the next three or four years. In December 1991, Gary Waller, who was then the Conservative Member for Keighley, raised the issue in the House, but it did not result in a change in the law. Eventually, however, the law was changed. Let us be absolutely clear about it: the hon. Member for Congleton (Mrs. Winterton) wants to change the law, to restore the position that applied in 1989, despite all the consequences of that law.
The case dragged on to September 1992, when Tony Bland's parents and doctor decided to apply to the High Court for a ruling on withdrawing treatment. The regional health authority and the hospital backed their case, which was based on British Medical Association advice that artificial feeding was a medical treatment and could be withdrawn. Lawyers acting for the health authority backed the case.
There was a hearing in the High Court, in November 1992, and counsel for the Official Solicitor argued that, despite the health authority's request, it would be murder to cease treatment. In November 1992, Sir Stephen Brown, president of the family division, ruled that doctors may 622lawfully discontinue all life-sustaining treatment and medical support measures.The Official Solicitor announced that there would be an appeal, and stated that the case might go all the way to the Law Lords. I shall not bore the House with the details, but, again in November 1992, the case went to the Court of Appeal, which was asked to give a definitive ruling. After a three-day hearing, the Master of the Rolls said that the court was minded to dismiss the appeal. However, the court gave the Official Solicitor leave to appeal to the House of Lords, and he did that.
In their judgment, which was given on 4 February 1993, the Law Lords unanimously ruled that artificial feeding should be withdrawn. They called on Parliament to legislate on when doctors can stop "futile" medical treatment. They expressed great unease at having to rule in such a difficult sphere without legislative backing. However, they stressed that there was a crucial difference between withdrawing treatment and actively ending life. The ruling was backed by the BMA.
The Bill is intended to put the clock back to the position pertaining before the Law Lords' ruling. Although the issue has received the most intensive consideration at the highest level, the hon. Member for Congleton wants essentially to reverse that judgment.
New clause 17 deals with publicity. I am holding newspapers showing the type of publicity that Tony Bland's family had to endure. There were pages and pages of stories. For four years, every tabloid and newspaper—ranging from the most serious medical journals in the land down to the tabloids—talked about the anguish of that poor boy, who could not eat, speak, laugh or cry, and about whether he should be allowed to die. His parents sat there—day after day, year in, year out—suffering, and perhaps gaining hope whenever there was a sign that the boy might recover, but it was obvious that that would never happen. To get some mercy for their boy, they backed a legal saga that lasted years and in which lawyers analysed the issues. Imagine the anguish of the parents, when they are continually the subject of television documentaries and newspaper analysis. My hon. Friend the Member for Hendon referred to the abortion demonstrations in America outside hospitals or courts. Is that a humane way to treat a person in a deep coma, who probably has no life?
Doctors have a dilemma. Some of the foremost experts in the country have said that there are 600 to 700 new cases in Britain every year and, at any one time, there are between 1,500 and 2,000 people who might be kept alive for as long as 25 or 30 years. What a macabre situation!
Professor Bryan Jennett from Glasgow, an expert on comas, says that no one has ever come out of a year-long coma. Although some have perhaps come out of one very slowly over the course of a year, they may well be severely brain damaged.
§ Dr. Brian Iddon (Bolton, South-East)
Is my hon. Friend aware of the case of Patricia White Bull in America, who came out of a coma after a substantial number of years? It is not true that people do not come out of comas after a long period.
§ Mr. Ashton
I hear what my hon. Friend says. There will always be arguments on the issue, but there comes a 623 time when politicians should listen to medical experts. We accept their rulings on industrial tribunals or disability benefits. We have no option.
§ Mr. Ashton
We do not overrule doctors, whatever they say. That is a principle of law. My hon. Friend the Member for Bolton, South-East (Dr. Iddon) cited one case. I am quoting not my own opinion but that of professors who specialise in comas.
§ Mr. Michael Jabez Foster
It is an incredible proposition that we have no right to question a doctor who is playing God. If what my hon. Friend says is right, do we have to accept the decision of a junior doctor last week that a woman with only a year to live from cancer should not be resuscitated, even if that were appropriate?
§ Mr. Deputy Speaker
Order. Before the hon. Gentleman responds, I remind him, as I have just reminded the hon. Member for Gainsborough (Mr. Leigh), that he must relate his remarks to the new clause.
§ Mr. Ashton
My point is about publicity. I was referring to new clause 17, which says thatNo person shall publish any material which is intended or likely to identify—(a) any patientand the publicity that the Bland family had to suffer. There are 1,500 to 2,000 such people alive at any time. If that rolls on for 10 or 20 years and people are left alive in a coma, breathing, there will be some who have been on a life-support machine for as long as the Kray brothers or Myra Hindley have been in prison. People argue that it is time to let them out of prison, so surely it is time to end the agony of the families of such patients. Imagine the publicity that would surround such cases and the trauma for those involved. A massive number of people could be kept alive. The professor whom I was quoting earlier says that, although no one has ever come out of a coma after a year, some can live in a coma for as long as 30 years.
§ Dr. Evan Harris (Oxford, West and Abingdon)
In the light of the intervention from the hon. Member for Bolton, South-East (Dr. Iddon), I should like to give the same advice that I gave on Second Reading. A persistent vegetative state is different from a coma. The Bill would cover the withdrawal of treatment from people in a coma, but the Bland case was one of persistent vegetative state. We should be wary about accepting anecdotal evidence about either medical state, rather than concentrating on the general case.
§ Mr. Ashton
The hon. Gentleman is right.
The aim of the Bill is to put fear into doctors and deter them from even thinking about switching off life-support machines. They would have to think of the consequences and all the hassle. My hon. Friend the Member for Hendon referred to the case of Dr. David Moor, a good friend of mine who is sitting in the Strangers Gallery today.
§ Mr. Ashton
I know from personal experience the publicity that surrounded Dr. David Moor. He had 624 tremendous support in his constituency. He had to retire from his practice. I went to a public meeting in Newcastle where 400 people turned up in support of him. He could not be there, because it looked as though he faced a prosecution. He openly admitted what he had done and there was enormous publicity that put him under a great deal of stress, which he survived well. He was obviously found not guilty. The court had to be moved from Newcastle to Leeds.
Those who support the Bill intend that the fear of publicity will deter doctors from deciding to switch off a life-support machine quietly, with the agreement of all interested parties, including the family. They would not able to do that because somebody—perhaps their local Member of Parliament—would say that they were breaking the law. They would become martyrs and would have to go to court and be charged with murder.
§ Mr. Trend
The hon. Gentleman says that the Bill would make doctors fearful of the consequences or the publicity. I take a different view. The Bill would remove from elderly or sick people and their parents, friends and relations the fear that their doctor might end their life by refusing to give them food and drink. That is the specific aim of the Bill. We all agree that the Bland case was very difficult and I have enormous admiration for the Bland family. However difficult that case was, the judgment in that case has given rise to other difficulties, including a greater suspicion, particularly among elderly patients, that their doctors cannot be trusted and might kill them if they judge that their life is not worth living. That new fear must be dealt with.
§ Mr. Ashton
I could equally argue that the Doctor Assisted Dying Bill, which I introduced a few years ago, would have been welcomed by many elderly patients, because it would have allowed those diagnosed with a terminal illness to tell the specialist or consultant that they wanted the right to an assisted suicide. There are two sides to the argument. I am not trying to stop people practising their religion, but they cannot put their religion onto me. I am entitled to my beliefs, just as they are entitled to theirs. We are arguing not about beliefs, but about the human rights of individuals. I do not want to start talking about living wills or doctor assisted dying, because they are separate issues.
Without the new clause to protect relatives from publicity, the Bill could mean a repeat of the Tony Bland case, when the parents asked for the machine to be switched off after three or four years and the doctor said that he could not switch it off because that would be murder. Imagine the mass marches and demonstrations that there might be through the streets, similar to those in America about abortion, with all the paraphernalia, headlines and arguments about whether it is mercy or murder. Those who support the Bill want such publicity to deter any doctor, particularly a younger doctor or anyone who is thinking of climbing higher in their career, from using their common sense, judgment and decent humanity to say that, although a patient might be alive, they will never come off the machine. Is that humane? I do not think so. If the doctor, the family and everybody in the hospital agree that the patient will not come out of the coma, it is common sense and decency to accede to the family's wishes and switch the machine off.
625 11 am
Are we to return to the problems of the Tony Bland case, which spread over three or four years and caused agony for the family? Three of the other boys involved recovered and came off the life-support machine, although they were severely damaged. However, Tony Bland would never have recovered and, after 15 days or so, he died. We can argue for ever about individual cases and anecdotal evidence, such as that provided by my hon. Friend the Member for Bolton, South-East (Dr. Iddon). There will always be cases such as that in the newspapers yesterday, when a patient found her hospital notes which suggested that the doctors were trying to bump her off.
There is nothing more fascinating to a large section of the public than health cases, particularly the end of a person's life. The House does not debate that subject enough. At any one time, 300,000 people—equivalent to the population of a city such as Nottingham or Newcastle—are terminally ill. The House cannot keep sweeping this matter under the carpet by setting up a Select Committee in the House of Lords, or by staggering from one individual case to another. Sooner or later, the House must face up to one fact—doctors know best. I do not think that doctors are bad people. We can end up with a Shipman, but that can happen in any profession—
§ Mr. Deputy Speaker
Order. I am reluctant to keep interrupting the hon. Gentleman, but he is not speaking to the new clause. I would be grateful if he did so.
§ Mr. Ashton
I had virtually finished. I implore the House to accept the proposals, particularly the two new clauses that I have mentioned. The question of who brings prosecutions is important, and it must not be someone who feels like a private prosecution for religious or propaganda purposes. It is important that the Director of Public Prosecutions should have to bring any prosecution if the Bill is passed. Also, the practice should not be turned into a circus or provide entertainment for the general public.
§ Mr. Neil Gerrard (Walthamstow)
The hon. Member for Gainsborough (Mr. Leigh) tried to argue that the Bill, and clause 1 in particular, is simple and clear. I think that the opposite is the case, and that is why it is necessary to have new clause 11 and some of the other new clauses.
If the Bill in its present form becomes law, there will be a lack of clarity. The intervention by the hon. Member for Oxford, West and Abingdon (Dr. Harris) illustrated the problem of definition, which is not simple. The meaning of "purpose" may be simple in common-sense terms, but the legal interpretation is not so simple. The word has been interpreted in different ways in the courts. One interpretation is the intent to commit a particular act and does not involve the state of mind. These problems mean that we need the safeguards in terms of prosecution proposed by new clause 11.
A radical change in the law is proposed, yet we hear that there is nothing in the Bill that need worry doctors. As my hon. Friend the Member for Bassetlaw (Mr. Ashton) has pointed out, doctors are worried. The British Medical Association has made it clear that it is worried about the consequences of prosecutions under the Bill in its present form. The Royal College of Nursing has done the same. Much of the debate has concentrated on doctors, 626 but the Bill opens up the possibility also of the prosecution of anyone involved in the care of a patient, and concerns any person responsible for the care of a patient. That brings in nurses, paramedics and care workers. Organisations such as Age Concern and the Alzheimer's Society are worried about what prosecutions under the Bill might lead to. That is why we need the protection proposed by new clause 11. The decision on prosecution would have to be made at a senior level by the Attorney-General and not as a result of private prosecution.
§ Mr. Miller
What is my hon. Friend's response to the argument of my hon. Friend the Member for Hendon (Mr. Dismore)—that the Attorney-General is potentially subject to political interference? Does he think that that produces a risk if there are not checks and balances in the clause?
§ Mr. Gerrard
I understand my hon. Friend's point, and I will come to that later. There is a question in terms of consent on prosecution, and whether that consent should be a matter for the Attorney-General or the Director of Public Prosecutions. That is the essential difference between the arguments of my hon. Friend the Member for Hendon (Mr. Dismore) and my new clause. In many ways, the reasons that we are putting forward for the new clauses coincide. We want some control over who initiates prosecutions, but we have taken a different view on that. Our intent with the two new clauses is essentially the same, and the relatively minor difference is in terms of the mechanism that ought to be adopted.
§ Dr. Whitehead
My hon. Friend says that the intent of the two clauses is the same. Would he say that the purpose is also the same?
§ Mr. Gerrard
That is an interesting intervention, which takes us into the argument of the meaning of purpose and the meaning of intent. Our purposes may be the same, although I am not sure that that would always be the case.
This is a sensitive area concerning a radical change in the law. We must be sure that any prosecutions that take place are in the public interest, given the likely effect of publicity in what are likely to be high-profile cases. The effect on the career of the doctor, nurse or carer charged will be obvious but, as my hon. Friend the Member for Bassetlaw has explained, the effects of these cases on the patient and the family should never be forgotten.
This week, I received a distressing letter from a constituent whose son had committed suicide. The families were dreadfully distressed by the press coverage. The cases to which the Bill applies will obviously get publicity. I support new clause 17, which refers specifically to that. In the case in my constituency, the siblings discovered through the coverage the truth about their brother's death, which was extremely distressing.
Such publicity could occur regardless of the involvement of the Attorney-General, but the prevention of vexatious or frivolous prosecutions would moderate it. No one, regardless of their attitude to the Bill, would welcome vexatious prosecutions, which would quickly bring the law into disrepute. None of us wants that to happen.
627 My hon. Friend the Member for Bassetlaw said that one of the Bill's aims was to put doctors in fear of prosecution. It is rather harsh to say that that is an aim, but it would certainly be an inevitable consequence of the Bill as it stands. I tabled new clause 11 to allow doctors to feel that there is sufficient safeguard against vexatious prosecution.
In recent years, there has been a move towards more litigation in the health service. More people now consider taking action against doctors and we are moving, perhaps unfortunately, towards the position in the United States, where many doctors are constantly concerned about the possibility of legal action against them. I would be worried about doing anything to our law that increased that fear or that possibility. I do not argue for one moment that doctors should be free from the fear of prosecution if they act negligently or against the interests of their patients, but that is not what the Bill is about.
If doctors are in constant fear of prosecution, that will have a detrimental effect on their relations with their patients.
§ Charlotte Atkins (Staffordshire, Moorlands)
Does my hon. Friend agree that, in the United States, legal action is usually intended to encourage doctors to intervene—often against the interests of the patient—whereas the Bill is about doctors not intervening to continue people's lives?
§ Mr. Gerrard
That is an important point. I am not a doctor, but I do not believe that clinical judgments are necessarily objective. There will be disagreements between doctors about whether one should intervene in given circumstances. My hon. Friend is absolutely right that the pressure will be towards intervention, because the failure to intervene will carry with it the risk of prosecution. That is the fundamental effect of the Bill as it stands. It reverses the current legal situation, whereby the court's primary concern is what is in the best interests of the patient. The Bill invites us to make judgments on the basis of what the doctor, the carer or the nurse has done. That is why we need the safeguards in new clause 11.
Much more attention is being given these days to the rights of patients to be involved and to have as much information as possible about their treatment. How openly will doctors discuss with patients and their families what they might or might not do if at the back of their mind there is the fear of prosecution for deciding not to intervene or to withdraw artificial sustenance? These are complex issues, and the best decisions are taken when there is the maximum trust between doctors, patients and families. The possibility of prosecution will affect the atmosphere of trust and bad decisions could result.
§ Dr. Iddon
If a doctor is following best practice by consulting the whole medical team, the patient—if possible—and the relatives, there will be no prosecution under the Bill, but yesterday's evidence from Age Concern showed that people are writing "555" on case notes without such consultation, and that is bad practice. The Bill is aimed at a small minority of doctors who are not following best practice.
§ Mr. Gerrard
I would certainly deprecate the practice of writing notes on files without consultation—that is 628 against best practice—but however much one talks to families, there is always the possibility of people changing their view after the patient has died. Families might say that the doctor told them that things would be all right if he took a certain course of action, but that proved not to be the case. We have all seen—
§ Mr. Deputy Speaker
Order. The hon. Gentleman is straying into a Second Reading debate. He must relate his remarks specifically to the new clauses under consideration.
§ Mr. Gerrard
I apologise, Mr. Deputy Speaker. I was trying to respond to an intervention and had not originally intended to stray down that line.
The rights of patients are critical and will be affected if doctors fear unreasonable prosecution. Probably most of the people I have known who have lived with a terminal illness have had. AIDS. As a member of the all-party AIDS group, I have come to know many people living with HIV, and others with an AIDS diagnosis. I have listened to what such people say about how they should be treated when they reach certain points in the illness.
One person who spoke at the hearings held by the all-party group said that he had left instructions that if he entered a persistent vegetative state, he did not want to be maintained in that state. He was very clear on that point. If a doctor follows that instruction, would he or she be in fear of prosecution under the Bill?
§ Mrs. Ann Winterton (Congleton)
That point was raised several times on Second Reading and in Committee and the law on that practice would not be affected in any way by my Bill.
§ Mr. Gerrard
I have heard that opinion expressed, but I have also heard exactly the contrary opinion expressed. The BMA think that the Bill will make a difference, and it represents the people who will have to operate under the law. I am always wary, as a non-lawyer, of being so certain of my opinion of what effect a Bill will have, especially if a lawyer tells me that it will have the opposite effect. We should listen to the BMA's views on that point.
I was asked why my new clause applies to the Attorney-General rather than the Director of Public Prosecutions. It is true that the situation is confused at the moment, with the Attorney-General granting some consents and the DPP granting others. The officeholder is specified in the statute creating the offence, and that is why we have ended up in confusion. No overview has been taken and the approach has been piecemeal. Some Acts have contained provision for decision by the Attorney-General and some for decision by the DPP, and that confusion continues with new clauses 10 and 11.
The Attorney-General has a duty to consider the general circumstances of the case and to see whether he thinks that any of the provisions of the Act can be used against the defendant. If the Attorney-General believes that they can, he can give his consent in wide terms for the prosecution to take place. It is assumed that the Attorney-General will have made the necessary inquiries before he gives consent.
629 I understand the argument advanced by my hon. Friend the Member for Hendon that the Attorney-General has a political as well as a legal function, but my concern about his suggestion that the DPP should decide is about seniority. As my hon. Friend accepted, at the moment if a decision is taken by the DPP it can be taken at a relatively low level in the DPP's office, whereas if the Attorney-General takes the decision it is taken at a senior level by someone who is an experienced Law Officer. I certainly cannot recall any cases in which the judgment of the Attorney General on a matter of law has been questioned.
My hon. Friend suggested that the situation should be changed. The Law Commission has considered that and concluded that the right to a private prosecution is a useful function and that we should be careful about circumscribing that right. Indeed, where it is circumscribed, the decision should be taken at a high level. The Law Commission suggested a review of the current position across the law as a whole, not just in individual Bills, to decide which cases should go to the DPP and which to the Attorney-General, at what level the decisions should be taken, and what safeguards should be introduced. At the moment, the safeguard that my hon. Friend suggested—that the decision must be taken at a high level within the DPP's office—does not exist. It is still possible for a decision to be taken at a relatively low level, and that is why my new clause takes a different approach.
The reasons behind the new clauses are very similar, and my hon. Friend and I approach the issue from a similar point of view. We agree about the need for safeguards, but we differ about the mechanism. My reason for preferring the decision to be taken by the Attorney-General is, as I have said, seniority. However, I realise that my hon. Friend's clause is first in the group, and we will probably not have a Division on my new clause because his will have been passed. I hope so, because I certainly want a safeguard to be added to the Bill. Although I would prefer my new clause, I would rather have my hon. Friend's than no safeguard at all.
New clause 17 concerns publicity. Safeguards on the publicity that can be given to cases that might be covered by the Bill are needed for the doctor, nurse or carer whose career might be affected. We are all aware of the possible effects of a prosecution, whether eventually successful or not. The fact that someone has been prosecuted can have serious effects on them. However, safeguards are also important for patients and their families for whom identification from a newspaper report might cause problems at work or with friends and other family members. The safeguards in new clause 17 would be very important if the Bill became law.
§ Dr. Brand
New clause 10 or new clause 11—I would favour new clause 10 for the reasons that have been set out—would be essential should the Bill become law. It is essential that someone should review each case because the Bill, although very short, is extremely ambiguous. To me, it is extremely clear, but my clarity is different from the clarity expounded by the Bill's supporters. The Bill's proponents say that the Bill would not affect cases where doctors and nursing teams are reported to have acted responsibly in caring for patients.
630 11.30 am
The real discussion hinges around the Tony Bland case. The hon. Member for Bassetlaw (Mr. Ashton) said that the Bill would take us back to the position obtaining before the Bland judgment, but I think it would go further. The Bill does not differentiate between ordinary and extraordinary treatment—
§ Mr. Deputy Speaker
Order. I get the impression that the hon. Gentleman is not going to speak to the new clauses before the House. I remind him that this is not a Second Reading debate and that he must direct his remarks specifically to the new clauses.
§ Dr. Brand
I am dealing with new clause 10, Mr. Deputy Speaker. The Bill's purpose is so ambiguous that we need a neutral body to determine whether a prosecution is covered in the way that the hon. Member for Congleton (Mrs. Winterton) intends, or whether it is a product of the drafting of the Bill. That is a profound difficulty, and new clause 10 would at least provide a safeguard to protect doctors who have acted appropriately.
I am sorry that new clause 48 was not selected for debate, as it would have clarified the extent of the Bill's intent or purpose. I am not debating new clause 48, Mr. Deputy Speaker, but it might have reduced the need for new clause 10. We need a person to take a view on the appropriateness of a prosecution. For the reasons already discussed, it is probably better that that person should be a senior officer in the Crown Prosecution Service.
I understand the thinking behind new clause 17, but I am uneasy about offering special privileges to any profession. The provision to protect patients, their carers and relatives is important, but once the evidence has been produced to warrant a prosecution—deemed to be in the public interest under new clause 10, if that is accepted—that prosecution should be conducted in public.
I shall use myself as an example of my concern that the police should get advice about the creation of a screening procedure against vexatious complaints. On Second Reading, I made some remarks to which one lady objected. She badgered the media and the Hampshire police until the police eventually issued a press statement that they were investigating her complaint. I do not believe that the police had screened the worthiness of the complaint that was made. No doubt, the lady felt very strongly about the issue—people do get very emotional about it—but her message on my answering machine, to the effect that she was out to destroy me and that I should be imprisoned, convinced me that she was not acting in the public interest, but wanted to get at me.
I have no objection to that, but I heard about the police investigation only when I was telephoned by a journalist who had received the statement from the Hampshire police. In fact, my son read about it first in Metro, the free news sheet. That is pretty shocking.
That example illustrates that there is a need for a screening procedure. The Crown Prosecution Service should be able to advise the police. Interestingly, the code of practice being revised by the CPS does not mention advising on how extensive an investigation should be before a prosecution is mounted.
§ Mr. Miller
I have done a lot of work on road deaths, and I very much agree with what the hon. Gentleman said about 631 the rights of families. However, the lady in the case involving the hon. Gentleman could have tipped off the press that she was going to make a complaint. A story could have been running before the police got involved. With or without the new clause, the hon. Gentleman would have suffered the same intrusion on his civil liberties.
§ Dr. Brand
On the Monday, I was contacted by a journalist who told me that she had heard a rumor that the Hampshire police were about to investigate me. I said that I had heard nothing about it, so thought that the story was only a rumor and did not pursue it. The fact that the Hampshire police confirmed that they had received a complaint and that they were investigating it created the story. Publicity cannot be stopped, but vexatious complaints can be screened earlier. In that way, the police and the CPS could decide whether a further investigation was helpful, and an appropriate use of resources.
New clause 10 is essential because we have not been reassured about the extent of the Bill or how it would affect established practice. My hon. Friend the Member for Colchester (Mr. Russell) spoke movingly about his daughter, and two little nephews of mine died under very similar circumstances. The life-support machines were an extraordinary means of keeping those children alive: switching them off resulted in their deaths.
That was the purpose of the action, because the continued existence of those babies was not deemed to be in their interest. The Bill would put doctors at risk of prosecution, so I would want a sensible, fairly senior person who could construe the legislation to make some sense of the situation.
§ Mrs. Ann Winterton
Although I may not be sufficiently senior or sensible for the hon. Gentleman, I believe that common sense dictates, and it is the intention of my Bill, that in such cases, the life-support machine would be turned off because the treatment was futile. He knows perfectly well that life-support machines are turned off only at the very end when the body is dying.
§ Mrs. Winterton
It does not need to be in the Bill. As treatment would be futile, the hon. Gentleman would still be able to turn off the machine. Only if his purpose was to kill the patient would it be unlawful.
§ Dr. Brand
The Bill makes no mention of present practice. When I tried to test the provision in Committee by referring to different scenarios, I was told, "That will not be affected. It is present practice." The hon. Lady is trying to pick and choose from present practice without specifying in the Bill what is acceptable. That is no way of protecting patients or those who look after them.
§ Dr. Whitehead
I wish to speak to new clause 13, which is in my name. It is a short and simple clause that provides that the Billshall give rise to liability in tort only.Although it is brief, it covers a number of complex issues that go to the heart of the Bill.
The new clause involves the potential liability of doctors, or anyone else involved in the treatment of a patient, in circumstances where there may be doubt about what is in the patient's interests, and where not zealously pursuing a particular course of treatment could be regarded as having the purpose of terminating the patient's life. Therefore, if a doctor or anyone else involved with that medical treatment does not pursue it zealously, they could be liable to prosecution.
The problem with liability to prosecution under the Bill, as I understand it and as my hon. Friend the Member for Hendon (Mr. Dismore) made clear earlier, is that the Bill provides for only one sort of prosecution. A doctor or paramedic accused of an offence under the Bill would be prosecuted for murder. If they were found guilty, they would be liable to the penalties for murder, which are severe.
The hon. Member for Congleton (Mrs. Winterton) spoke about present practice. Juries are extremely concerned about the idea that a doctor or anyone else involved in looking after patients—often in difficult, trying and unfortunate circumstances—should be tried for murder. Having heard about the case of Dr. Moor, we could argue that juries are faced with a very different set of circumstances from what we understand, by common definition, to be murder, when the accused person defends himself by saying that he was acting in good faith and according to the best interests of the patient. They then have to decide whether that is truly the case or whether something happened that was not really in the best interests of the patient or whether the doctors overstepped the mark in respect of what should or should not have been done in terms of medical treatment. Is that strictly comparable to another case in which someone has shot their victim with a gun, clearly with the intention of killing them, and has obviously committed murder?
Juries ask themselves whether they can really proceed with a conviction when common sense tells them that the two sets of circumstances are very different indeed. It appears to be the case that, in certain circumstances, juries have refused to convict because they did not agree with the charge, even if it could be proved in legal terms that the doctor concerned had done something which had hastened the death of the patient, as they did not consider that the penalty should be the same as that for shooting someone in the head with a gun.
At first sight, there is a common-sense case for saying that we are dealing with issues that have a wide range of definition, but the Bill does not allow for that. In addition, the wording of the Bill does not follow that of other legislation—the Bill talks about "purpose" rather than "intention".
633 The hon. Member for Congleton said at a press conference on 18 January that she was not a vitalist—that is, someone who believes that medicine should be used to prolong life, whatever the circumstances. She has made it clear again this morning that she believes that doctors are entitled to take into account issues relating to the quality of life when deciding whether to withdraw or withhold treatment.
Logically, the hon. Lady must conceive of circumstances in which treatment that does not absolutely prolong life, or in which withholding a treatment and thereby shortening life, is acceptable and not a crime, and that someone who has taken such a decision should not face a charge of murder and prosecution through the courts.
The British Medical Association attempts to underline that point in its guidance. It defines the primary role of medical treatment as beingto benefit the patient by restoring or maintaining the patient's health as far as possible, maximizing benefit and minimizing harm. If treatment fails, or ceases to give a net benefit to the patient (or if the patient has competently refused the treatment) that goal cannot be realised and the justification for providing the treatment is removed. Unless some other justification can be demonstrated, treatment that does not provide net benefit to the patient may, ethically and legally, be withheld or withdrawn and the goal of medicine should shift to the palliation of symptoms.So the hon. Lady and the British Medical Association agree that there are circumstances in which the zealous pursuit of medical treatment under all circumstances is not absolutely necessary.
However, the problem can be seen when we read the Bill itself. It states:It shall be unlawful for any person responsible for the care of a patient to withdraw or withhold from the patient medical treatment or sustenance if his purpose or one of his purposes in doing so is to hasten or otherwise cause the death of the patient.Therefore, at first sight, clause I does not allow the leeway that both the hon. Lady and the wise guidance from the BMA says should be allowed. The issue is clouded by the deliberate use of the word "purpose" rather than "intention".
§ Mr. John Healey (Wentworth)
Does my hon. Friend agree that, as both the hon. Member for Congleton (Mrs. Winterton) and the BMA oppose the practice of euthanasia, it should not be impossible to come up with amendments that meet the concerns of both and that command consensus in the House?
§ Mr. Deputy Speaker
Order. May I remind hon. Members that we must confine our debate to the new clauses and not stray from them?
§ Dr. Whitehead
Thank you, Mr. Deputy Speaker. My intention in tabling my new clause was to address the point made by my hon. Friend the Member for Wentworth (Mr. Healey). There must be ways in which the fierceness of clause 1 can be tempered by elements that do not contravene the intentions of the hon. Member for Congleton, but enable the legislation to be operated in a way that recognises people's perception of the real issues.
The Bill makes the issue less, not more, clear by the use in clause 1 of the word "purpose" rather than "intention". It is interesting to review the illuminating 634 debate that took place in Committee on the difference between those words. The hon. Member for Congleton spoke at some length on the subject, but she said two different things. First, on the question why she had deliberately chosen to use the word "purpose", not "intention", she said:If I had used the word "intention" in clause 1, it could arguably have been claimed that we wanted to outlaw anything that would have had the side effect or double effect of hastening or causing death. That would, of course, be an intolerable restriction on medical care.However, having argued that she had used one word and not the other because of the difference in their meaning, she said later:The definition of purpose may be legally obtuse, but it is understood in common law and in the understanding of people. We sometimes judge things legalistically. Everybody understands what purpose means and is. I have said at length that it is equivalent to intent.—[Official Report, Standing Committee C, 16 February 2000; c. 41–42.]She added, "If the hon. Gentleman"—referring to the hon. Member for Isle of Wight (Dr. Brand)—"believes that intent"—
§ Mr. Deputy Speaker
Order. The hon. Gentleman is reading out excerpts from Committee proceedings, but we cannot go over what happened there at too great a length. I should be grateful if he addressed his remarks specifically to the new clauses.
§ Dr. Whitehead
I am grateful for your guidance, Mr. Deputy Speaker. I remind the House of those exchanges in Committee because I believe that it is necessary to bear them in mind when considering the question of penalties, with which my new clause deals specifically. It is important to understand what we mean when we speak of "intention" and "purpose". My view is that the two words cannot simply be substituted for each other; their meanings differ.
I confess that I am not a lawyer, although my wife is; nor am I a doctor, although my brother is. I have the best of all worlds, in that I can listen to the issues without being deeply involved in any specific case. In attempting to make sense of the legal minefield into which the Bill takes us, I did not immediately reach for the law books. Instead, I reached for the "Oxford Shorter Dictionary", which defines "intention" as being, among other things:A concept formed by directing the mind towards an object.The word "intent" is defined asthe act or fact of intending; intention, purpose…A design, a project. Assiduous effort; a design or project…intent observation.That suggests that the mind is focused on an action; the purpose is clear and the individual is about to do or is doing something.
Although the word "purpose" crops up in the long definition of "intention", the word "purpose" has—
§ Mr. Deputy Speaker
Order. The hon. Gentleman has not yet demonstrated the relevance of his remarks to the new clause before the House. Standing Orders insist that that is done, and I should be grateful if he now did so.
§ Dr. Whitehead
I thank you for your guidance, Mr. Deputy Speaker. I shall now go straight to the demonstration itself.
635 As I understand it, under the law as it currently stands, if one has the intention of doing something, the law is clear. Indeed, one of the primary purposes of the prosecution in, for example, a case of murder, is to establish that the individual who allegedly committed the crime had the intent to commit murder—to deprive someone of his or her life. Much time is spent in court attempting to demonstrate that the accused has a guilty mind, men's rea, and that he or she had the intention of doing something and is, therefore, guilty of murder.
The existing law therefore protects patients from a doctor who is intent on killing them. If a doctor intends to kill a patient, no special new law is needed to decide what should happen to the doctor. A doctor who is charged with intending to kill someone will be subject to the usual tests through the court. If the intention to kill is proved, he will be found guilty of murder. In the desperately tragic recent case concerning Dr. Shipman, it was clear that the doctor had the intention of killing his patients. He failed in his duty of care. There was not a shadow of a doubt about that: he clearly intended to commit murder, and he was prosecuted under the existing law of the land.
However, a different word is used in the Bill. That is why, Mr. Deputy Speaker, I was attempting to tease out the distinction between the two words. The Bill introduces the word "purpose". As I mentioned, I am not a lawyer. I shall rehearse briefly what I understand to be the common-sense distinction between "purpose" and "intention".
For example, if I were the person responsible for the entire conduct of Government business, which is not very likely—[Interruption.] My hon. Friends are supportive of that idea. I might have a purpose to bring about a minimum wage for everybody, and I might declare that purpose in an election manifesto, but I might not have brought about the minimum wage or done much about it. All I have said is that it is my purpose—
§ Mr. Deputy Speaker
Order. The hon. Gentleman seems to be having grave difficulty in understanding my earlier entreaties. Unless he can bring his remarks back to the new clause before the House, perhaps he will consider completing his remarks.
§ Dr. Whitehead
Thank you, Mr. Deputy Speaker. Of course I accept your guidance. I am sorry that I have failed in my attempts to draw a distinction between "purpose" and "distinction" and show the relationship to liability in tort as opposed to criminal liability.
In order to establish criminal liability, it is clear to me that the person must be shown to have an intention to do something. At the beginning of my remarks, I mentioned that juries had found it difficult to equate in their minds the difficult and sad cases that have occurred with what they thought they were supposed to do—that is, to consider whether a person had the intention of murdering someone and therefore should be found guilty of murder. As a result, juries have simply acquitted people.
If the Bill is passed, a new offence will be created—namely, having as one's purpose the hastening of someone's death by not providing medical treatment. When we consider the distinction between the criminal prosecution of an individual for murder and prosecution under the Bill, there is a gap, because the reference to "purpose" rather than "intention" is not followed up in the Bill by the consequences of that distinction.
636 My new clause suggesting that liability should exist in tort attempts to fill that gap. Not being a lawyer, I had to satisfy myself about the meaning of "tort". It refers to a civil wrong, such as negligence or nuisance. It is related to but is distinct from contract, and it is therefore not enforced in the criminal courts.
The purpose of the new clause is to deal with the circumstance in which someone apparently has the purpose of hastening the death of a patient through the withdrawal of medical treatment but, because the two words are distinct, does not in law have the intention of murdering that person. That gives rise to the suggestion that a tort has been committed, rather than a criminal act that is obviously prosecutable under the criminal law.
For the Bill's supporters, one of the advantages of considering liability for tort is that an offence of tort that is enforced in the civil courts requires a lesser standard of proof—the balance of probabilities rather than beyond reasonable doubt. When a doctor is before the courts on a murder charge, proof beyond reasonable doubt is difficult to establish.
When all the difficult highways and byways of a doctor's precise actions, of who gave or did not give informed consent, and in the circumstances which a person who is unconscious might be deemed to give consent are considered, proof beyond reasonable doubt that the doctor intended to deprive the patient of life is difficult to establish. A liability in tort, which is enforceable in the civil courts, would sweep away many difficulties and ambiguities in the Bill.
My final argument relates to a current problem—as far as I understand it as a non-lawyer—with the law of battery. A person who medically treats another without that person's informed consent may be guilty of battery in law. If the Bill was passed, a doctor who attempted to understand his or her duties under clause 1 would have to set that alongside the potential for being liable in tort for battery if he or she provided treatment under clause 1 without the consent, or perhaps against the express wishes, of the patient or the patient's relatives. Relating the penalty to liability in tort would clarify clause 1. If that happened, the doctor would not be liable under criminal law and a different course of legal action would be taken.
New clause 13 acknowledges that the clause requires clarification but would also help to provide it so that we do not have a law which, as the hon. Member for Isle of Wight said, would cause doctors simply to question whether a clinical judgment would render them liable for criminal prosecution. No hon. Member would wish that on people who carry out difficult medical procedures, often in distressing circumstances that those of us who are not doctors have not experienced or considered.
I ask the hon. Member for Congleton to consider seriously whether new clause 13 would bring clause 1 in touch with common sense. It would show understanding of what it is to be a doctor and to undertake the practices that we have discussed. We must consider carefully what penalties should be visited on people who find that they have not acted entirely as they wanted under difficult circumstances. We have the criminal law to protect us from those who intentionally go out of their way to murder, and I suggest that a separate offence dealt with by tort should be established to meet the concerns raised by the Bill.
§ Mrs. Ann Winterton
I must say, wryly, that I am immensely flattered that so much time, trouble, effort and energy has gone into drafting new clauses whose sole purpose is to wreck the Bill. Its opponents are filibustering and merely playing games. People outside the House will observe that and reach their own conclusions about the actions of those who oppose progress by such means. They will also observe that this is the second Friday on which progress on private Members' business has been thwarted.
My hon. Friend the Member for Windsor (Mr. Trend) pointed out that no substantive amendments were tabled in Committee, although, I hasten to add, I ensured that there was more than adequate time so to do. That backs up my point that everything that has been done today is intended to kill the Bill. I hope that people will note that.
§ Mrs. Winterton
No, I do not intend to give way. I was very generous on Second Reading and in Committee, but, because of time pressure, I shall make only a few pertinent remarks.
On new clauses 10 and 11, it has been said many times that the Bill's aim is to restore the integrity of the law against purposeful killing. When a doctor is charged with killing a patient by committing an act, the consent of the Director of Public Prosecutions is not required. Why, then, should it be required if a doctor is charged with killing a patient by omission? The same is true of the Attorney-General. If the Bill becomes law, prosecutions will take place not under it, but under the common-law offence of murder.
In response to the personal point made against me on my views about capital punishment under specific circumstances and my support of pro-life causes and for life at its beginning and its end, I remind the House that common law has always upheld the inviolability of life, except in the administration of justice. Tony Bland had committed no crime and the intention was that he should be killed by the withdrawal of treatment.
On new clause 13, the Bill seeks to restore the criminal law's prohibition against purposeful killing, which existed before the Bland case judgment in 1993. In so doing, it would promote a patient's right not to be purposely killed, as described in article 2 of the European convention on human rights. Liability in tort is completely inadequate for such an offence. Killing by an act is not simply liable in tort, so why should killing by omission be so?
New clause 15 is unnecessary. The offence is murder, which is indictable, and the law should be consistent with that for murder by an act. On new clause 17, the law should be the same as if a person had been charged with murder by an act. Dr. Shipman and his victims were identified. Why should not those charged with purposeful killing by omission be similarly treated?
I want to move from the legal cat's cradle that has been created this morning to put a few salient points on record. Under the Bill, a patient's right to refuse treatment would remain exactly as at present. It would in no way become conditional on the doctor's total mindset, as has been suggested. In a recent letter to me, the Minister stated:I do not believe that doctors should under any circumstances be allowed intentionally to kill their patients, whether by action or omission, and they are not allowed to do so under the present law.638 The Minister's statement is very welcome, although it does not have legal effect, and constitutes no guarantee that the law is as the Government think it is. In the Bland case, a majority of the Law Lords, if not all, judged that the doctor's intention—or purpose—in withdrawing tube feeding would he to kill the patient, and held that the doctor would nevertheless be acting lawfully. I should be grateful if the Minister would respond to that point.
It has been claimed this morning that the concept of purpose includes foresight. That calls into question the principle of double effect. Neither in law nor in common sense is there the slightest reason for saying that purpose includes foresight. If the Bill had used the term "intent", there would have been some basis in law—though none in common sense—for including foresight.
The hon. Member for Richmond Park (Dr. Tonge) claimed that, under the Bill, a doctor's knowledge that a patient's life would be shortened by his action in withholding treatment would make such an action unlawful. The basis of the Bill is that a doctor who decides to withhold treatment from a patient on the ground that it would he excessively burdensome or futile has no purpose of shortening life, even if he foresees that the withholding will have that effect. The good effect is release from burdensome treatment; the detrimental effect is death. The doctor must not have any purpose of causing death: I hope that that is clear.
I do not wish to delay the House further. As most of the other points that have been raised were answered fully on Second Reading and in Committee, I merely ask the House to vote against the new clauses in due course. The simple purpose of the Bill is to restore the integrity of the law to pre-1993, so that it is unlawful for a doctor to have the purpose of killing a patient by an action of omission. That would bring the law into line with the present law, under which it is unlawful for a doctor to kill a patient purposefully by an act of commission.
§ The Parliamentary Under-Secretary of State for Health (Yvette Cooper)
I had planned to listen to the speeches of all who have tabled new clauses and amendments before responding, but I will address my comments to the new clauses under discussion.
The five new clauses raise some of the concerns about the drafting of the Bill that the Government has identified throughout our debates. I have made our concerns known, and have pointed out that, as drafted, the Bill will not achieve the aims of the hon. Member for Congleton (Mrs. Winterton). I do not believe that the new clauses resolve those concerns; while some are helpful, others raise more questions than they answer. I want to spell out the Government's response to those new clauses, but first I must put on record the Government's complete and continued opposition to euthanasia—to the intentional taking of life, even with merciful motives or at the patient's request. That is, and will remain, illegal.
New clauses 10 and 11 highlight what the Government consider to be an important drafting flaw in the Bill. They raise the question of who should decide whether a 639 Prosecution should take place—the Director of Public Prosecutions, in the case of new clause 10, or the Attorney General, in the case of new clause 11.
§ Mr. Trend
The Minister said that the Government's definition of euthanasia was the intentional removal of life. In the Bland case, the Law Lords all agreed on that point. Lord Lowry, for example, said thatthe intention to bring about the patient's death is there.The Law Lords were desperately realistic about what happened to Tony Bland. There was the intention to kill him, and that is what happened. He died through starvation. How does that square with the Government's definition of euthanasia, which they say they are against?
§ Yvette Cooper
I shall attempt to answer the hon. Gentleman's question, and in doing so also to answer the question raised by the hon. Member for Congleton.
To withdraw available treatment that is in the best interests of the patient when the doctor has a duty of care and when the patient has not refused such treatment is unlawful. In the Bland case, the question at issue was what was in the best interests of the patient. That is why current case law depends on what is in the best interests of the patient, whereas the Bill would instead shift the focus on to the purpose or one of the purposes of the doctor.
New clauses 10 and 11 deal with who should decide whether to prosecute. As the Bill stands, it does not say that anyone—either the Director of Public Prosecutions or the Attorney-General—should make the decision to prosecute, and it does not make it clear whether to prosecute at all, because it does not provide for an offence. It says that to withdraw or withhold medical treatment or sustenance if the purpose or one of the purposes is to hasten or cause death "shall be unlawful", but it does not say that it is an offence. Had it specified that it was an offence, it would have brought the Bill clearly within the remit of the criminal law. Without those words, it remains unclear what type of prosecution could be brought under this legislation, if any, and what sanctions could be applied, giving rise to many of the questions raised around these new clauses.
The issue of sanctions and penalties is the subject of the next group of amendments, so I shall not deal with it now. The issue of whether an offence has been committed, and therefore what type of prosecution could be brought and who should make the decision about whether to bring it, is extremely important.
The decision facing the DPP or the Attorney-General would be what kind of offence had been committed, and, in the absence of a clear statement that an offence had been committed, whether to prosecute under the criminal law.
New clauses 10 and 11 ask the House to choose between the DPP and the Attorney-General, or to leave the matter to the Crown Prosecution Service, as in the Bill as drafted. At the moment, the question of who should make a decision under particular laws is extremely complex. We cannot look to any Act of Parliament to determine which prosecutions should require the prior consent of the Attorney-General. Where such consent is required, the requirement is set out in the statute dealing with the offence. Although a wide range of crimes require the Attorney-General's prior consent to prosecution, most offences do not need his consent or that of the DPP.
640 Most decisions to prosecute are made by the Crown Prosecution Service, which must apply a dual test. First, it must decide whether there is sufficient evidence to mount a prosecution, and if it is satisfied about that, it must decide whether it is in the public interest for a prosecution to be launched. Those decisions are made by Crown prosecutors throughout the land, day in, day out. That would be the status of the Bill without either new clause 10 or new clause 11.
The Law Commission has considered this issue in great detail, and has pointed out that there are diverse areas where the Attorney-General's consent is currently required by statute, but there seems to be little rhyme or reason why his consent is required in some cases and not in others. The Attorney-General's consent is required for prosecutions under legislation ranging from the Biological Weapons Act 1974, to the Aviation Security Act 1982, to the Theatres Act 1968. It is hard to see a specific thread running through those Acts that could provide guidance for the House on whether the Attorney-General should pronounce on cases such as these.
Equally, the cases for which the DPP needs to give consent are extremely varied, ranging from the Agricultural Land (Removal of Surplus Soil) Act 1953, the Animals (Scientific Procedures) Act 1986, to the Charities Act 1985 to the Gas Act 1986. That means that there is no coherent system for the House to apply in choosing between the new clauses. As a result, there is good reason to be extremely cautious about introducing and accepting either new clause 10 or 11.
When the Law Commission considered the matter in 1997, it issued a consultation paper called "Criminal Law: Consents to Prosecution." It runs to more than 100 pages. I confess that I have not read it, but it makes some important points. The commission notes that, where consent is required, it is often impossible to find any rationale for why that consent should be applied. It points out that one of the consequences of requiring consent, either of the Attorney-General or of the DPP, is that it will provide a hurdle to private prosecutions. Hon. Members will know that private prosecutions are brought by private individuals, not by the prosecuting authorities. The new clauses would provide hurdles for private prosecutions under the Bill. I understand supporters of the new clause have exactly that issue in mind.
The commission's view was that the right to bring a private prosecution fulfils an extremely useful function and should be circumscribed by consent provisions only where there is a very good reason for doing so. It concluded that consent provision is justified in narrow circumstances: where, for example, an offence may involve national security or have some other international element.
The commission set out guiding principles for determining whether consent provision should attach to any particular offence, which may be useful for the House in determining whether to support new clauses 10 or 11. It concluded that it is justifiable to include consent requirements only in three categories of case. It is not clear that the Bill falls into any of those categories. That raises doubt about the acceptability of either new clause.
The commission recommends that the consent provisions should be used to control prosecution in each of only three categories: first, where it is very likely that a defendant will reasonably contend that prosecution for 641 a particular offence would violate his or her convention rights; secondly, where the issues involve national security, or have some international element—offences would be regarded as involving an international element if they were about the international obligations of the state, measures to combat terrorism, measures to introduce response to international conflict, or had some bearing on international relations; and thirdly, where offences create a high risk that the right of private prosecution will be abused and the institution of proceedings will cause the defendant irreparable harm.
The commission rejected the idea that consent requirements should be used to prevent prosecutions where there were problems about evidential weakness, imprecise offences, offences attracting vexatious and trivial prosecutions, and cases that failed to take account of mitigating factors.
The commission specifically considered the position of doctors and manslaughter and whether consent requirements should be used to control prosecutions of individuals whose working lives are likely to be substantially damaged if prosecuted, even if they are subsequently acquitted. It concluded that those are not cases where the prosecution should be controlled by a consent requirement.
§ Mr. Dismore
I presume that my hon. Friend was listening to the reasons that I gave earlier as to why the new clause could be distinguished from the position in the Law Commission report. The most important one was that the commission considered the position from the point of view of an existing offence—manslaughter—not in the context of the new offence created by the Bill, which is equivalent to murder. The two are qualitatively different in terms of both scale and the fact that a specific offence is being created. The new clause would deal with the offence, not the individual, so it would apply whether the individual were a doctor or an individual carer.
§ Yvette Cooper
I accept that the Law Commission did not consider the specific question of doctors and manslaughter, and that there are important arguments about needing to prevent the right of private prosecution from being abused in this case. However, I still think that it is unclear whether the cases that we are considering fall into the categories listed by the Law Commission.
§ Mr. Miller
Perhaps the Department of Health could look back a little further in history and consider the Law Commission reports on involuntary manslaughter, on which I gave evidence in the context of road deaths. Perhaps serious consideration of that by the Department could provide a sensible route in the matter.
§ Yvette Cooper
I shall certainly further consider the points made by my hon. Friend.
In its recommendations, the Law Commission specified that the category of offences that should require the consent of the Attorney-General, rather than that of the Director of Public Prosecutions, should be confined to those involving national security or an international element. Clearly, those matters are not at stake in the Bill. 642 Therefore, new clause 11—which refers to the Attorney-General, rather than to the Director of Public Prosecutions—makes only a tenuous link.
The Government accepts that the current consent requirements need reform. My hon. and learned Friend the Solicitor-General answered a written parliamentary question from the hon. Member for Hendon (Mr. Dismore) on precisely that issue. He said that we need to reform the current consent requirements; further consider the issues and determine in precisely which cases it is appropriate; to apply those requirements.
Given that the Solicitor-General is considering the matter, the Government are extremely unwilling to increase the number of cases that would require the consent of either the Director of Public Prosecutions or the Attorney-General. I appreciate that those who support this group of new clauses are trying to introduce safeguards against improper prosecutions. However, pending further work and decisions on rationalisation of consent issues, and without compelling reason to do so, the Government would not welcome further increases in the number of cases requiring consent.
New clauses 13 and 15 raise a different issue. New clause 13 deals with the matter of tort. Were new clause 13 to be accepted, it would clearly provide that to withdraw or withhold treatment in the circumstances specified in the Bill was a civil wrong and not a criminal wrong. That would have obvious consequences both in the penalties to be applied and on the standard of proof required. The provision also would not satisfy the hon. Member for Congleton, who said quite explicitly on Second Reading that her aim was to restore what she described as the fundamental integrity of the law of murder.
So far, our proceedings in the House and in Committee have been based on the premise that to breach the Bill would create criminal liability, rather than civil liability. A tort which is a civil wrong, such as negligence or nuisance, would not be enforced in the criminal courts. If the Bill were to give rise to liability in tort alone, it would differ in a very important respect from the law on criminal liability, as an offence under the Bill would be proved on a lesser standard of proof—the balance of probabilities, rather than beyond reasonable doubt.
Such a change—rather than requiring the offence to be proved on a criminal standard of proof—would make it highly probable that more medical practitioners would fall within the Bill's provisions. The House should take that issue very seriously. It makes even more pertinent the Government's concerns about emphasis on "purpose" or "one of his purposes" rather than on the best interests of the patient.
If the new clause were accepted, the prosecution would have to prove that, on the balance of probability, one of the doctor's purposes was to hasten the patient's death. For the doctor who is faced with a patient who refuses treatment, the decision whether to respect that refusal, in the clear knowledge that it will hasten the patient's death, is a daunting one. The doctor knows that her patient will die more quickly without treatment, and that the courts have to prove merely that, on the balance of probability, that was one of her purposes. The Government fear that that will put doctors in a very difficult position in deliberating on whether it is possible for them to respect a patient's decision. It is highly probable that more medical 643 practitioners would fall within the provisions of the Bill were the new clause to be accepted. More patients could then find themselves at risk of having treatment that they had refused forced on them.
The hon. Member for Congleton has tried to make it clear that, as she understands it, the Bill would not jeopardise a patient's ability to refuse treatment and the doctor's obligation to respect that refusal. I understand that she makes that point in good faith, but I disagree with her interpretation of how the law would be applied.
§ Mrs. Ann Winterton
rose in her place and claimed to move, That the Question be now put.
Question put, That the Question be now put:—
§ The House divided: Ayes 96, Noes 10.644
|Division No. 168]||[12.35 pm|
|Amess, David||Jones, Helen (Warrington N)|
|Beggs, Roy||Kaufman, Rt Hon Gerald|
|Beith, Rt Hon A J||Kilfoyle, Peter|
|Bell, Stuart (Middlesbrough)||King, Andy (Rugby & Kenilworth)|
|Benton, Joe||Lait, Mrs Jacqui|
|Borrow, David||Lansley, Andrew|
|Bottomley, Peter (Worthing W)||Lawrence, Mrs Jackie|
|Brady, Graham||Lewis, Dr Julian (New Forest E)|
|Brazier, Julian||Loughton, Tim|
|Breed, Colin||Luff, Peter|
|Brinton, Mrs Helen||McDonagh, Siobhain|
|Brooke, Rt Hon Peter||McFall, John|
|Burnett, John||Mackinlay, Andrew|
|Casale, Roger||Maclean, Rt Hon David|
|Cash, William||McNamara, Kevin|
|Chapman, Sir Sydney (Chipping Barnet)||Mawhinney, Rt Hon Sir Brian|
|Clappison, James||Nicholls, Patrick|
|Clarke, Rt Hon Kenneth (Rushcliffe)||O'Hara, Eddie|
|Clifton-Brown, Geoffrey||Paice, James|
|Cook, Frank (Stockton N)||Palmer, Dr Nick|
|Cox, Tom||Pollard, Kerry|
|Crausby, David||Pound, Stephen|
|Cunningham, Jim (Cov'try S)||Prior, David|
|Curtis-Thomas, Mrs Claire||Randall, John|
|Dawson, Hilton||Robathan, Andrew|
|Dobbin, Jim||Robertson, Laurence|
|Duncan Smith, Iain||Roe, Mrs Marion (Broxbourne)|
|Evans, Nigel||Rowlands, Ted|
|Faber, David||Russell, Bob (Colchester)|
|Fallon, Michael||Shaw, Jonathan|
|Fearn, Ronnie||Smith, Miss Geraldine (Morecambe & Lunesdale)|
|Forth, Rt Hon Eric||Stunell, Andrew|
|Foster, Michael Jabez (Hastings)||Swayne, Desmond|
|Fox, Dr Liam||Taylor, Ms Dari (Stockton S)|
|Galloway, George||Thomas, Gareth R (Harrow W)|
|Gardiner, Barry||Thompson, William|
|Gill, Christopher||Todd, Mark|
|Green, Damian||Trend, Michael|
|Grieve, Dominic||Wardle, Charles|
|Hammond, Philip||Wareing, Robert N|
|Harris, Dr Evan||Waterson, Nigel|
|Heald, Oliver||Webb, Steve|
|Heath, David (Somerton & Frome)||Whitney, Sir Raymond|
|Horam, John||Wilkinson, John|
|Howarth, Gerald (Aldershot)||Winterton, Mrs Ann (Congleton)|
|Iddon, Dr Brian|
|Johnson Smith, Rt Hon Sir Geoffrey||Tellers for the Ayes:|
|Edward Leigh and|
|Jones, Mrs Fiona (Newark)||Rev. Martin Smyth.|
|Atkins, Charlotte||Rendel, David|
|Brand, Dr Peter||Sedgemore, Brian|
|Dismore, Andrew||Vis, Dr Rudi|
|Fitzpatrick, Jim||Tellers for the Noes:|
|Fyfe, Maria||Mr. Joe Ashton and|
|Harris, Dr Evan||Dr. Jenny Tonge.|
§ Whereupon MR. DEPUTY SPEAKER declared that the Question was not decided in the affirmative, because it was not supported by the majority prescribed by Standing Order No. 37 (Majority for closure or for proposal of Question).12.45 pm
§ Yvette Cooper
I was attempting to respond to questions about whether a doctor could still respect a patient's refusal to consent to treatment. The right to refuse treatment is embedded in the common law, whereas the Bill would be on the statute book. When there is common and statute law covering the same domain, the statute book takes precedence. The Bill refers to withdrawing or withholding treatment in all circumstances. It does not make exceptions in circumstances where a patient has refused treatment.
It is highly probable that more medical practitioners would fall within the Bill's provisions if new clause 13 were added, so we have serious concerns about it. It is unclear what the penalty would be under the new clause, as civil courts have only limited powers of imprisonment, and their usual way of punishing is by financial penalties such as awards of damages or fines. To have such a means of enforcement for the Bill would clearly be at odds with the intentions of the Bill's sponsor and promoters.
If the penalty were financial, the liability would fall on the NHS. New clause 15 is designed to move in the opposite direction. It asserts what was implicit in our previous discussions of the Bill, focusing on the criminal law of murder and manslaughter and how to apply that to doctors whose treatment results in a patient's death. Murder and manslaughter are tribal only on indictment. The new clause makes that clearer because cases that are brought on indictment cannot be heard in the magistrate's court. There can be no objection in principle to the fact that cases involving a large amount of factual and scientific information should be handled by a Crown court judge, presumably with a jury, rather than by a lay or stipendiary magistrate.
New clause 15 also reflects the current legal position that doctors charged with murder or manslaughter should be treated in exactly the same way as other persons charged with those crimes and tried on indictment in a Crown court before a judge and jury. Our view is that new clause 15 is a helpful clarification of the Bill, along the lines intended by the Bill's drafters, but that new clause 13 raises more problems than it solves.
New clause 17 raises an important issue for patients and their families who may be involved in proceedings under the Bill. Without the new clause, the principles of patient confidentiality would be in jeopardy. There are always sensitivities surrounding the disclosure of the identities of patients and parties in such proceedings, and we must ensure that the right balance is struck between the rights of the individuals involved and the public interest in an open system of justice. We have had an important debate in the House on those serious issues.
645 The duty of confidence owed to patients is rightly regarded as fundamental by all health care practitioners. Only if patients have confidence that a health care practitioner will respect sensitive information about their life and health will they feel able to confide in that practitioner and feel secure in that relationship. There can be no doubt that proceedings brought under the Bill would concern the most sensitive types of health information. The confidential medical records about a patient's terminal illness—their condition in the last few hours or days of their lives—would be material to any case. Without new clause 17, those confidential medical records would be available to the media as well as to the courts. Under the Bill as it stands, the most confidential, private and intimate medical details could potentially be reported on the 6 o'clock news or in the newspapers.
Hon. Members have argued that similar circumstances can apply in cases of murder or manslaughter, and that is true. However, cases that arise under the Bill will always concern patients' medical circumstances and involve intimate details of their lives. That is an important consideration for the House when it decides whether to support new clause 17.
§ Mr. Miller
My hon. Friend speaks in terms of the patient, but in the context of prosecutions under the Bill, the patient would usually be dead. New clause 17 provides that no person should publish any material, but does my hon. Friend agree that the dead person's relatives might, in some circumstances, have the right to overrule that?
§ Yvette Cooper
The new clause raises complex questions that run both ways. It is not just a case of saying that it is a good thing and should be supported. My greatest concern is patient confidentiality, and although, as my hon. Friend points out, in most such cases the patient will have died, the General Medical Council takes the view that the ethical duty of confidence survives the patient.
We can all imagine a situation in which someone has chosen not to tell relatives or friends about their illness. For example, someone with HIV may choose not to tell relatives about his or her condition. Many patients feel that such information is highly sensitive, and that is their choice. If proceedings were brought under the Bill as it stands, the details of a patient's illness could be broadcast for the world to know, and we should be sensitive to the consequences that that could have for the patient's relatives.
§ Mr. Miller
My hon. Friend may have missed my point. In the awful case that was publicised last week, the relatives discovered what was written on the records. If the patient had died, surely it would have been legitimate for the family to have published that evidence.
§ Yvette Cooper
That is a material consideration for the House. I take my hon. Friend's point seriously, but it needs to be weighed against the other issues surrounding patient confidentiality. There is no simple answer, and new clause 17 does not resolve the issues satisfactorily.
§ Dr. Liam Fox (Woodspring)
Will the Minister outline the Government's attitude to new clause 17(1)(b)? That deals withany defendant or witness in proceedings under this Act.The Government's attitude to that provision would have great implications for cases involving medical professionals accused of other offences.
§ Yvette Cooper
The application of new clause 17 to other cases would raise considerable questions, and the Government cannot recommend supporting it. Although it raises important questions that should be considered, and highlights troubling consequences of the Bill, we are worried about some of its broader effects.
New clause 17 is intended to deal with matters of privacy, and appears to be based on a clause in the Law Commission's draft Bill on mental incapacity, which grew out of anxiety about the need to protect the privacy of any person involved in proceedings in which it was alleged that decision-making capacity was lacking. That proposal would have achieved protection by making it an offence to publish identifying information about a person involved in incapacity proceedings. The new clause mentions a range of public media, such as television and radio, but it does not cover publication on the internet.
That is not surprising, given that the Law Commission prepared its draft Bill in 1995, when the internet was in its infancy and relatively few people had access to it in their homes. That has since changed, and the omission of the internet from the new clause is a clear loophole. However, the House will be aware of the extreme difficulty of regulating publications on the internet.
The Government considers that the new clauses raise important issues of clarification. Some are helpful, but others raise more problems than they resolve.
§ Mr. Trend
Will the Government continue to think about the new clauses? The 96 hon. Members who appeared in the Lobby with the Bill's proponents just now show how great is the groundswell in the country in support of the Bill. The considerable correspondence that Members of Parliament receive from constituents shows how anxious people are about their relationship with doctors and about what doctors, as professionals, do to them.
Will the Government continue to think about whether it is acceptable for doctors to kill patients by starvation? That is at the heart of the Bill.
§ Yvette Cooper
Certainly the Bill has raised important and weighty matters, and the Government will continue to consider them. The hon. Gentleman raises matters to do with the Bland case. They were subject to widespread public consultation relatively recently in connection with the paper entitled "Who Decides?". As a result of the strongly held views expressed in that consultation, the Government decided not to put the Bland judgment, which is in case law, on the statute book. These matters must be the subject of continued consideration, but I can tell the hon. Gentleman that the Government remain completely opposed to euthanasia.
§ 1 pm
§ Rev. Martin Smyth (Belfast, South)
I appreciate the Minister giving way on that point. She touched on the ambiguity that has developed. One of the Law Lords, 647 Lord Mustill, said that the decision had left the law morally and intellectually misshapen because it prohibits medical killing by an act but allows it by omission. I appreciate the Minister saying that the Government are still considering this. I hope that they will close the loophole without allowing the medical profession to move towards assisted suicide.
§ Yvette Cooper
I have tried to make it clear that judgments in such cases must and do depend on the best interests of the patient and that it is unlawful for doctors who have a duty of care to withdraw or withhold available treatment from a patient when it is in their best interests, if that patient has not already refused that treatment.
§ Dr. Harris
I have been listening to the Minister's comments with great interest and I agree with much of what she says. Does she accept that the Government's reluctance or delay in introducing legislation on these issues runs the risk—perhaps unintentionally—of laying the medical profession open to some pretty dire accusations in the tabloid press and by those campaigning about life issues, when without statute law the medical profession has to work according to its own guidelines, having regard to case law? However, the medical profession is left somewhat exposed and it is really for legislators to take responsibility for the legal position of doctors in respect of difficult end-of-life issues.
§ Yvette Cooper
The Government have made it clear that they accept existing case law on these issues and that, in respect of questions surrounding the Bland judgment, strong views are held on both sides. As a result, the Government has decided that it is not appropriate to legislate at this time.
§ Yvette Cooper
It is important to recognise that, ultimately, we are dealing with clinical decisions. The BMA and the RCN have consulted widely on the guidelines. There is an important principle about clinical decisions, but I accept that we need to keep these issues under consideration as they are extremely important.
§ Mr. Gerrard
The hon. Member for Isle of Wight (Dr. Brand) has raised an important point. Those of us who are unhappy with the Bill do not necessarily believe that the law is in a satisfactory state, or that it is adequate to have guidelines from a medical association rather than clarity in the law. I hope that the Department of Health will continue to examine these issues as it is in everyone's interests that we achieve clarity in the law. Some of us have difficulty with the Bill because it fails to attain such clarity.
§ Yvette Cooper
Hon. Members are making important points. I can reassure them that I shall continue to consider the issues that have been raised.
§ Dr. Iddon
My hon. Friend said that the BMA had consulted widely on the guidelines. If she was referring 648 to withholding or withdrawing life-prolonging medical treatment, I wonder whether she is aware that a substantial number of doctors do not feel that they have been adequately consulted. Is she also aware that the legality of those guidelines have been questioned during a debate in the Scottish Parliament?
§ Yvette Cooper
I said that the Government accept current case law. In addition to the guidelines, existing case law refers to omissions as well as acts. So it is not simply a matter of having only guidelines and an absence of legal position in this area.
§ Mr. Jim Cunningham (Coventry, South)
Can my hon. Friend give an indication of the time scale for the Government's consideration of amendments and additions to the law? When exactly might that happen? Can she give us a date?
§ Yvette Cooper
No, I cannot provide a time scale or any guidance on that question. All I can say is that important issues have been raised, the Government take them seriously, and we shall continue to consider them across Government, as we have done for many years.
§ Mr. Leigh
Does the Minister realise that the same point is now being made by those on both sides of the argument and both sides of the House? If the Government's view is what I believe it to be—that it is all right for a doctor to end a life by omission rather than commission—it is only fair that the Government stop hiding behind the Law Lords; that legislation is introduced and time allowed for it; and that the House is allowed a free vote. Only by proceeding on that democratic basis can we come to a proper conclusion.
§ Yvette Cooper
That is not a correct interpretation of the Government's position: we have made clear our opposition to euthanasia. We have also made it clear that current case law states that, if doctors, who have a duty of care, withdraw available treatment that is in the best interests of the patient, and that patient has not refused treatment, their action is unlawful. It is important that decisions in such circumstances are made in the best interests of the patient. From the beginning, one of the Government's concerns about the Bill is that it does not mention the best interests of the patient, or ensure that they are taken into account.
§ Charlotte Atkins
I should like some clarification in respect of new clause 10. Decisions of the sort that we are discussing are invariably taken in extremely distressing circumstances. The new clause would ensure that no prosecutions could be brought under the legislation without the consent of the Director of Public Prosecutions first being given. My concern as a mother, and as a daughter whose mother has died, is that that could introduce tremendous delay in proceedings. The families of the patients involved could find their agony extended by the requirement for the DPP's consent. Legal cases could go on for months and extend the agony, not only of the immediate family, but of friends of the patient. That is my real concern about the new clause. It is fine—
§ Yvette Cooper
My hon. Friend raises a serious question about new clause 10. The Government's view is 649 that new clauses 10 and 11 are not appropriate at this time, while our review of the issues of consent raised by the Law Commission is continuing. Hon. Members should reflect on that when deciding whether to support the new clause.
The five new clauses raise important questions of clarification. Although they were intended to address some of the Bill's drafting flaws, which cause the Government great concern, they create as many problems as they were designed to resolve. The Government do not believe that any of the proposals satisfactorily answer our concern that the Bill would not achieve the aims set out for it by the hon. Member for Congleton.
§ Dr. Fox
To my deep regret, it now appears that the opponents of the Bill are likely to succeed in killing it. I therefore start by congratulating my hon. Friend the Member for Congleton (Mrs. Winterton) on the brave and tenacious way in which she has raised the issue and given it the prominence it deserves. Euthanasia is immoral, unethical and unacceptable, even if patients have given their consent. I fully agree with the Minister for Public Health in that respect.
The new clauses were not necessary for the Bill to make progress, and many red herrings were introduced, specifically to take up the time of the House. Although I accept that that is a legitimate way of conducting business in this place, people outside will increasingly fail to understand when such tactics are employed on major issues of public importance.
§ Mr. Miller
On a point of order, Mr. Deputy Speaker. If red herrings had been introduced, they would have been out of order. Surely that is not a correct interpretation of this morning's proceedings?
§ Mr. Deputy Speaker (Sir Alan Haselhurst)
Anything that the Chair had heard that was out of order would have been so ruled. Anything that has not been ruled out of order will automatically, therefore, have been in order.
§ Dr. Fox
I rest my case, Mr. Deputy Speaker.
On new clause 10, the hon. Member for Hendon (Mr. Dismore) spoke about the involvement of the Director of Public Prosecutions, and gave what I thought was rather a strange defense of the new clause. He said that the DPP should be responsible for prosecutions whose legislative territory was political, which he defined as involving matters on which there was great contention between political parties. That would bring the DPP into almost every area of legislative territory, and politicise the role.
§ Mr. Dismore
The hon. Gentleman may have misunderstood my point. I was taking exception to new clause 11, because I believe that if an issue might be politically controversial, it should not be taken by the Attorney-General. That is not to say that the opposite is the case—that when a matter is not political, it must always be taken by the DPP. There are certain circumstances, which 1 outlined more fully in my speech, which support the argument for the DPP.
§ Dr. Fox
The difficulty in the hon. Gentleman's argument is the definition of the term "political". Such a difficult distinction was not helpful to the debate, and I am not sure that it was intended to be.
650 I was interested in what the Minister said, and I ask her to consider further some of the points raised on new clause 17. Much was made of the role of the press and the ability to prejudice a trial, whether on the basis of the Bill or otherwise, or to affect the reputation of a defendant or a witness. Much was said about what may happen to professional reputations as a result of such publicity.
I suggest to the Minister that professional reputations are not the only reputations that matter. Most of us would find it difficult to accept an artificial distinction between the protection of professional reputations in such a situation, and the protection of the reputations of members of the general public. If the Government are serious about considering the protection of defendants or witnesses, I hope that that point will be taken and the protection will apply to all members of the public equally, not disproportionately to some because they happen to be members of a particular profession.
§ Mr. Ashton
Will the hon. Gentleman clarify to the House whether he is replying on behalf of the official Opposition or expressing his own opinion?
§ Dr. Fox
In replying to the debate, I am largely expressing my own opinions, but I believe that they are shared by the vast majority of those who sit behind me. In fact, I can say with some certainty that they are shared by all those sitting around me now—[Laughter.]—allthree of them.
The hon. Member for Bassetlaw (Mr. Ashton) spoke about the fear of publicity on the part of professionals and witnesses if cases were reported in the tabloid newspapers. He said that the issues had been considered at the highest judicial level and by the medical profession at the highest level, so it was not for us—the House, presumably—to question them.
However, the role of Parliament is to question all such matters. It is our role to decide what we as a Parliament want; it is then for the judiciary to interpret and for others to follow the rules that we set. Doctors do not always know best, as the hon. Gentleman claimed.
Much has been said about fear. However, as my hon. Friend the Member for Windsor (Mr. Trend) said, there are other fears to be considered—the fear felt by weak, elderly and vulnerable patients that decisions could be taken by members of the medical profession to withdraw treatment, which would result in death. Doctors do not always know best. Doctors do not all think in the same way, either. We need clear guidelines for the medical profession.
Parliament has a duty to consider and clarify such matters. We have failed to do that today, and it is now incumbent on the Government to act as a matter of urgency.
§ Mr. Miller
I emphasise to the hon. Member for Wood spring (Dr. Fox) and to the hon. Member for Congleton (Mrs. Winterton)—who is often my hon. Friend when we deal with matters that relate to the best county in the country—that I resent the notion that those who have participated in the debate mean to wreck the Bill. It is not my intention; I am firmly opposed to euthanasia. I tabled several amendments aimed at improving the Bill. I want to place that on record to remove ambiguity.
651 I tabled new clause 9 solely to probe the issues that we are considering in this important debate on new clauses 10 and 11 and related matters. The debate has emphasised my serious anxieties about the logic of following the course outlined in those new clauses. I am not a lawyer, and I did not understand the relevance of the Director of Public Prosecutions or the Attorney-General in the context of the Bill. The debate on new clause 13 shows the difficulty that non-lawyers experience when considering such matters as tort—with the greatest respect to my long-standing hon. Friend the Member for Southampton, Test (Dr. Whitehead). Tort is an immensely difficult concept.
After listening to the debate, I have concluded that—to show some unanimity—I agree with the view in the briefing that the hon. Member for Congleton gave to the Bill's supporters. It was also expressed by my hon. Friend the Minister: new clauses 10 and 11 are wrong in principle. There is therefore some agreement on that. I am worried about the DPP's involvement, especially in the context of new clause 10. I am anxious that a junior in the ranks would deal with the matters that we are considering, and that the new clause would not have the effect that my hon. Friend the Member for Hendon (Mr. Dismore) sought.
I also agree with my hon. Friend the Member for Hendon that, if new clause 11 were accepted, political decisions might be made because the Attorney-General is a political appointment. I intervened on my hon. Friend the Member for Walthamstow (Mr. Gerrard) to stress the need for checks and balances. I tried to provide those checks and balances in new clause 9 when I included a provision to consult with other authorities. Considering whether the authorities listed in that new clause were the right ones is irrelevant, because it was not selected.
I listened carefully to the debate about tort, but I do not know whether I am any more enlightened. I therefore take a neutral position on that.
We are considering the Bill against a background of rapidly changing medical realities. Several hon. Members know that I lost my sister and my father in a relatively short time. Both survived illnesses for a long time that they could not have survived only a few years ago. Although—thank goodness—I, my family and the medical practitioners were never confronted with horrendously difficult decisions, an increasing number of people will be put in that position as it becomes technically possible to keep people alive. We have had a number of debates about the evolving science of genetics, which will also require us to return to these extremely difficult problems.
I am not totally at odds with the moral principle behind the Bill, but I have difficulty with the way in which, in absolute terms, it would put doctors and carers in hospices and in homes for those with Alzheimer's in an immensely difficult position, particularly because it does not seem to take the rights of families into account.
§ Mr. Deputy Speaker
Order. Before the hon. Gentleman began to consider whether to take an intervention, he made a passing reference to the new 652 clause. However, he has drifted into a general discussion of the principles behind the Bill. He must speak specifically to the new clause.
§ Mr. Miller
I was about to do that in my next sentence, Mr. Deputy Speaker.
There is bound to be a permanent collision between rapidly changing medical science and the enormous complexities of the law of the land as it operates in the context of death. The debate on new clauses 10, 11 and 13 is immensely valuable and, as of today, my view is that it would be inappropriate to incorporate any of them into the Bill. However, I am not certain whether I shall hold that view in five or 10 years time. We must revisit some of those principles.
§ Mr. Gerrard
My hon. Friend mentioned the difficult decisions faced not only by doctors but by hospice care workers. We must recognise that doctors are not the only ones covered by the Bill, particularly when we consider the position in which such people may find themselves. Does that not emphasise the need for the safeguards in new clauses 10 and 11, which would provide them with some protection against prosecution?
§ Mr. Miller
Having listened to the exchanges between hon. Members on both sides, I must say that I do not agree with my hon. Friend. However, I also do not agree with clause 1.
On new clause 15, the hon. Member for Congleton is right to say that it is axiomatic that the Crown court would be involved. She specifically says that the charge would be murder. As I understand the law, a murder charge must be dealt with in the Crown court. However, I have a difficulty: why on earth is the hon. Lady not prepared to accept the new clause, which clarifies the point in tight terms? That has polarised a difficult debate. The hon. Member for Gainsborough (Mr. Leigh), who is not in his place, recognised that we need to bring the various components of the debate—and those of us who, like the Government, oppose euthanasia in principle—closer together. Perhaps it would have been helpful had the hon. Lady done so.
§ Mrs. Ann Winterton
I assure the hon. Gentleman that both my hon. Friend the Member for Gainsborough (Mr. Leigh) and I believe that it is as unlawful for a doctor purposefully to kill a patient by an act of commission as it is for him to do so by an act of omission. We therefore believe that the law should be the same in both cases.
§ Mrs. Winterton
There would be no need for any additional provision. The arrangements would be exactly the same as those applying to unlawful killing or murder now—that is, those applying to acts of commission. Where was Dr. Shipman tried?
§ Mr. Miller
It is an outrage to compare Dr. Shipman with doctors working in the hospice movement and with people suffering from Alzheimer's disease.
§ Mrs. Winterton
The hon. Gentleman has smeared what I said earlier. He knows perfectly well that the cases 653 to which he refers would not fall into the category covered by the Bill, because they are not purposeful. We have talked about double effect, and about the difference between purpose and intention. The hon. Gentleman knows that that is not the intention of the Bill.
§ Mr. Miller
With the greatest respect to the hon. Lady, let me say that, according to her briefing, prosecutions would take place not under the Bill but under the common-law offence of murder. She is, in fact, drawing an exact parallel between the terrible disgrace of Shipman, and doctors and carers working in a very difficult area. I know that she holds her views sincerely, but I ask her to think carefully about the way in which language is used in this debate.
§ Dr. Whitehead
Do not the stark terms in which the hon. Member for Congleton (Mrs. Winterton) has set the choice make it necessary to consider the tabling of new clauses allowing the distinction between a straightforward murder prosecution and other forms of prosecution to be considered? Does my hon. Friend agree that it is wrong to suggest that everyone who proposes such an alternative is simply trying to do away with the Bill?
§ Mr. Miller
As I said earlier, it is almost a case of, "A plague on both your houses." I think that both extreme arguments are wrong. Following an act of murder, of course we must ensure that those responsible are tried in the proper place, but I am having difficulty with the new clauses in the context of clause 1. I shall not repeat the argument, because it has been dealt with at length by others with more expertise—
§ Mr. Miller
I meant that I would relieve the House by not repeating other Members' remarks, Mr. Deputy Speaker—not my own.
I fear that the difficult distinction between purpose and intention, and the new clauses that we are discussing alongside clause 1, will merely add to the confusion. I think we should improve clause 1, rather than adding these others.
§ Mr. Dismore
The hon. Member for Congleton (Mrs Winterton) hit the nail on the head in her last intervention. One of my worries is the introduction of the "purpose rather than intent" amendment. In the context of trial on indictment, the position relating to trial for murder is very clear.
I ploughed a lonely furrow last night going through "Arch bold" trying to find a definition of "purpose". There is none. The law of murder is founded on the concept of intent, and that is precisely and clearly defined in Archbold's "Criminal Pleading, Evidence and Practice", the bible of those working in criminal law. I fear that, by introducing a whole new concept, the hon. Lady is opening up the possibility of a whole new debate on the definition of murder. I do not necessarily disagree with her stated purpose—
§ Mr. Deputy Speaker
Order. The hon. Gentleman had 54 minutes earlier; he cannot have another 54 now.
§ Mr. Miller
I was following the logic of my hon. Friend's erudite argument. I intervened on my hon. Friend the Minister to make the point that the common ground between the two arguments is not to be found in new clauses 10, 11 and 13, but possibly in examining jointly the Law Commission's report on involuntary manslaughter. There may be some common ground there.
I honestly wish that we spent as much time as this on the 3,500 people who die on our roads every year. It is extraordinary that those lives that are lost by needless actions of others are not given the serious consideration that they deserve.
I shall now deal with new clause 17. There are three interested parties, if one excludes the various agencies of the state: the accused, the whistleblower and the family, all of whom have rights. I am not sure that the British Medical Association's medical ethics committee has always got it right—I notice that some eyebrows have been raised—when it has tried to protect the role of a doctor in cases that require difficult ethical decisions to he made.
Some time ago, I introduced a ten-minute Bill on that aspect as it relates to certain circumstances of death on the road. I fundamentally disagree with the BMA ethics committee on its approach to that issue, but that is not for today's debate.
However, it is right that, as the doctors' trade union, the BMA should put up a defense of the doctor, and there should be some mechanism whereby the accused person is protected from the publicity that may have occurred had the hon. Member for Isle of Wight (Dr. Brand) been pursued any further. As it was, the publicity surrounding his case was outrageous. There is a touch of irony in the fact that the extraordinarily long list of 153 items in the Law Commission paper on consents to prosecution includes the Isle of Wight Act 1980. Perhaps that is how the hon. Gentleman was pursued. The wide list ranges from local government issues through to genocide.
The accused must have rights in any prosecution. My hon. Friend the Member for Bassetlaw (Mr. Ashton) referred to the significant number of cases in the United States that have never been successfully prosecuted. One of the missing parts of the equation is adequate protection for whistleblowers. Such protection may enable a prosecution to succeed. That includes the need for a publicity protection clause.
§ Dr. Harris
I am not sure that I follow the hon. Gentleman's argument about the medical ethics committee, of which I am a member, as he knows. The role of defending doctors charged with misconduct or any other offence falls to protection agencies such as the Medical Defense Union and the Medical Protection Society. They are entirely different from the British Medical Association, which is the professional body. My understanding of the way in which the BMA's ethics committee works is that it has a separate function from that of giving professional advice to individual doctors who seek guidance about complaints. It is important to recognise the general role of the ethics committee in advising not only doctors but society in general.
§ Mr. Miller
I am grateful to the hon. Gentleman. I recognise his expertise. Perhaps we can talk about my specific complaint outside the Chamber. It would be inappropriate to raise it here. 655 The category of person who needs to have the maximum protection in some publicity-based clause is the family. As I said in an intervention on the Under-Secretary, my hon. Friend the Member for Pontefract and Castleford (Yvette Cooper), it is outrageous that, when deaths occur, the courts—it may be coroners courts or criminal courts—do not adequately take into account the rights of bereaved families either to speak in the various hearings, or to exercise some control over the publicity surrounding the death of their loved one.
I am extremely nervous about the fact that new clause 10 seems to concentrate almost entirely on the accused person and the rights surrounding that person. We need to look again at that principle. I am yet to be convinced by the argument of my hon. Friend the Member for Hendon that the new clause can stand up to examination.
As I have said, I do not believe that new clauses 10 and 11 can be incorporated into the Bill. New clause 15 should be. It is simply axiomatic and so not possible to ignore, as the hon. Member for Congleton suggests. I remain neutral on the tort issue, which is raised in new clause 13.
The new clause dealing with publicity is all right as far as it goes, but it is far from complete. Much more work needs to be done to separate the legitimate rights of the three categories of people: the accused, the whistleblower and the family.
I am grateful to have been called in what is a difficult debate.
§ Mr. Miller
No. I will finish now.
I urge colleagues on both sides of the debate to try to use some of the arguments that have been advanced to bring the two sides together, rather than to allow them to polarise, as that would be immensely damaging.
§ Dr. Harris
I declare an interest, which I mentioned earlier: I am a member of the BMA medical ethics committee, although I do not speak directly on its behalf. However, much of what I say comes from its deliberations. I am also a former hospital doctor, so I have been involved in the care of critically ill patients in hospital not competent to give their consent or approval to decisions taken in their best interests by the clinical team, and of patients who fall potentially under the remit of the Bland judgment.
I do not intend to detain the House, as I should like the debate to make progress. I intend to abstain on procedural matters where I do not support the proposal. By registering an abstention, I count as one of the 100 required to have a closure. The hon. Member for Congleton (Mrs. Winterton) knows that I was one of the 96 in the Division on the closure motion earlier, although I have serious concerns about the Bill.
I have some sympathy with the motives behind new clauses 10 and 11, despite the reduction in the access to justice—the suggestion that private prosecutions should not be allowed to proceed without the approval of a Government Law Officer. My sympathy is based on an appreciation of the difficulties in understanding the relatives' role in end-of-life issues. If the new clauses were not accepted and the Bill were enacted, there could 656 well be prosecutions by people concerned about how their relative had been treated, perhaps because they did not agree with the decision made, or felt left out of discussions on it. New clause 17 deals with publicity in such cases and, as the Minister said, the patient's right to confidentiality.
Relatives have less status than one might think in end-of-life issues. They may well not be consulted in such decisions, and they certainly do not have a veto over them. The seeming lack of consultation with relatives, and their inability to veto decisions and to dictate how treatment should proceed, often leads to complaints, and could, if a Bill such as this were passed, even lead to prosecutions. I think that that is the reasoning behind new clauses 10 and 11.
Another point, which I shall develop later, is how that issue relates to decisions to withhold treatments such as resuscitation, which would clearly be covered by the Bill. In such cases, if new clauses 10 and 11 were not accepted, relatives could well be concerned and make complaints. Additionally in those cases, without the provisions of new clause 17, patient confidentiality could also be threatened. However, I agree with the Minister that the provisions of new clause 17 raise wider issues and cannot be dealt with in a short debate.
Competent patients are those who are able to say which treatments they wish to accept or refuse, and relatives—even with the best of motives—cannot gainsay those wishes or even add their hap'orth on them. As far as possible, clinical care and medical treatment recognise the patient's autonomy in saying which treatments they wish to accept or refuse. In cases involving competent patients, in law and in ethics, there is no role for relatives to intervene in the doctor-patient relationship.
§ Charlotte Atkins
I should like some clarification on precisely that point. The hon. Gentleman has mentioned cases involving competent adults, but where does competence lie in cases involving children? I think that all hon. Members would agree that, very often, children suffering from terminal illness are old for their years. In such cases, although they may be minors, they clearly have a distinct view on how their treatment should proceed and on whether it should proceed.
§ Dr. Harris
The hon. Lady raises an interesting issue, and I should be interested in discussing it with her outside the Chamber. I have promised that my remarks would be short and to the point of the new clauses. It would be difficult to address the issue now, but I refer her to the BMA's guidelines, which deal not only with the end-of-life issue but with contraception and consent to treatment generally.
As I said, relatives have no role in cases involving competent patients. I think that it would be unethical to allow the wishes of a competent and adult patient to be overruled by those of another party. I think that the hon. Member for Congleton realises the concern that would be caused by allowing such a practice. Even in planning treatment for patients who are not competent to give consent—
§ Mr. Deputy Speaker
Order. Although the hon. Gentleman has made a glancing reference to two of the new clauses in this group, I cannot make the same 657 connection between the new clauses and his subsequent remarks. I do not understand how his comments relate to whether theprior consent of the Director of Public Prosecutionor the Attorney-General should be required.
§ Dr. Harris
I apologise for not making that clear, Mr. Deputy Speaker. One of the reasons behind new clauses 10 and 11 is to ensure that private prosecutions cannot be brought without the consent of a Government Law Officer with regard to all the facts of the case, partly because there is a feeling—reflected in some of the newspaper coverage of recent issues—that many relatives feel left out and hurt by decisions that have been made on end-of-life issues. Without the protection of a senior Government Law Officer judging the case and deciding whether a prosecution is worth while, there could be several attempts to prosecute on decisions to withhold treatment, based on a false premise that, even for incompetent patients, relatives should have a say in, or even a veto over, clinical decisions. I was coming on to say, if 1 am allowed, why that is not the case. It is important that there should be a bar on a possible series of prosecutions of doctors by relatives who have been left out of the process.
New clause 17 relates to publicity about such cases and how a patient's right to confidentiality can be preserved while actions around end-of-life issues are taking place. We have heard examples from the Minister and others about patients with HIV who do not necessarily want their relatives to know the reasons for their condition. If there was not a bar on prosecutions or the reporting of actions by relatives in ignorance of the clinical conditions—such a bar being the advice and consent of a senior Government Law Officer—we would be in peril of threatening patient confidentiality.
It is important to set out the justification for new clauses 10 and 11 regarding relatives' rights in providing consent—or not—for patients without consent. Section 18.3 of the BMA guidelines say that for an incompetent patientThe views of people close to an adult patient carry no legal weight.…Regardless of their lack of legal authority, the views of those close to an adult patient can be of considerable value in helping clarify what the patient would have considered to be beneficial.We are talking about what the patient's views would be, not those of the relatives, who may be seeking to bring a prosecution later, if new clauses 10 and 11 do not prevent them.
The guidelines go on to say:It is important to be clear, however, that the information sought—that is, from the relatives—relates to any views the patient expressed when competent, which might help to ascertain what he or she would have wanted in these circumstances, as opposed to what those consulted would like for the patient or what they would want for themselves if they were in the same situation.
Government Law Officers have a role in representing the views of incompetent patients, as in the Bland case. It is not the relatives to whom one turns to ascertain the best interests of the patient, but Government Law Officers. 658 Should the Bill become law, there will be a role for provisions along the lines of new clauses 10 and 11 to ensure that the right people put forward the best interests of the patient.
§ Mr. Gerrard
Further on in section 18.3, the BMA guidelines say thatrelatives' perceptions of the patient's likely views often differ substantially from the patient's own wishesand thatrelatives tend to have a more negative impression of the condition.Does not that emphasise the need for protection for the doctor? If relatives take a different view, particularly if it is a more negative view—
§ Mr. Deputy Speaker
Order. That intervention has nothing specifically to do with the new clauses. The hon. Gentleman is following an argument being made by the hon. Member for Oxford, West and Abingdon (Dr. Hams), but I do not have the greatest confidence that that argument is wholly relevant to the new clauses. The hon. Gentleman is hanging a Second Reading issue on to the text of the new clauses. I shall not allow that to go on for much longer.
§ Dr. Harris
I apologise if I have not have made clear the relevance, or if I have been unable to do so. I will not continue along that line.
If the Bill becomes law, we will not wish to see a rash of prosecutions in cases where that is not what the patient wanted. Even if a currently incompetent patient has—in a valid advance directive, for example—expressed a wish to see their suffering ended, or not to receive treatment in specific cases, it would be of major concern to society if all the details of that patient's treatment were brought before the court because prosecutions were allowed without the veto or the consent of a senior Government Law Officer. That is the wording of new clauses 10 and 11, and that is the relevance to the debate of the issue of relatives' competence.
§ Mr. Eric Pickles (Brentwood and Ongar)
With regard to the new clauses, is not the hon. Gentleman really saying that doctors know best and that no one should question their judgment? Is it not a fact about British justice that a number of successful prosecutions have been brought by private individuals which have corrected great injustices? Why should this matter be different?
§ Dr. Harris
That is why I have problems with new clauses 10 and 11. I would rather not see the Bill become law than restrict the rights to private prosecution. However, time and again, we see cases in which treatment has been withdrawn from a patient—perhaps with the patient's consent—where the relatives have strongly objected. A case was mentioned in the House of Lords recently where a patient was consulted on whether or not they wished to have resuscitation withheld should they suffer a cardiac arrest, and the relatives had their disagreement raised in Parliament.
If the Bill becomes law, without the opinion of a senior Government Law Officer being sought, such a person will he able to prosecute when clearly it is the right of a competent patient to decide whether they want to end their 659 days on a ventilator—having been resuscitated, in a relatively futile way, for the last few days or weeks of life—or whether they wish to die with dignity.
§ Mr. Pickles
Surely that is a matter of evidence or defense, and not a reason why a prosecution should fall before it starts.
§ Dr. Harris
If a competent patient wishes not to have treatment—such as cardio-pulmonary resuscitation in the event of a cardiac arrest—and if the doctors pursue that line of approach in their clinical care, they should not be exposed to the dangers of prosecution from relatives or other parties.
The more interesting case is that of an incompetent patient—someone who may have had a serious stroke, for example—for whom there is little or no chance of any meaningful recovery, and little chance of any unmeaning clinical recovery. In those cases, decisions are made by doctors, acting in the best interests of the patient that it would be inappropriate when the patient suffers a cardiac arrest in hospital to be jumped on by a team of three doctors and have their chest opened for manual cardio-pulmonary resuscitation. Because of the speed at which these things happen, relatives may be concerned that they were not consulted and that not every action was taken to preserve the physical continuation of the heart function in the patient.
Without some sort of protection, we will see a rash of cases where relatives have not understood the situation; have been left out; or have not been kept up to date because of the fast-moving nature of events seek through legal or other means to question the views of the doctors.
I believe that I have drawn the attention of the House to issues relating to relatives and decisions taken in respect of the care of patients. The Bill will create difficulties for the clinical team, not just the doctors, in understanding whether they are likely to be prosecuted for acting in the best interests of an incompetent patient or for following the instructions of a competent patient.
§ Mr. Healey
New clause 15 was not covered in Committee and has barely been touched on today. My aim in tabling it was to be constructive. It is not designed, in the words of the hon. Member for Congleton (Mrs. Winterton), to wreck the Bill. It is an attempt to make a badly drafted Bill a little better. I am in the unusual position of speaking after, not before, the Bill's promoter, the Minister and the Opposition Front-Bench spokesman.
The new clause is necessary. Throughout our proceedings on Second Reading and in Committee, and in her briefings, the hon. Lady has asserted that the offence that she wants to create is murder, but it is not specified as such. My hon. Friend the Minister confirmed the point by saying that the new clause may not address the Government's deeper concerns about the Bill but is a helpful clarification along the lines intended by the Bill's drafters.
The hon. Member for Windsor (Mr. Trend), as he did in Committee, probed positively and constructively to try to improve his and the House's understanding of what lies behind the Bill. My hon. Friend the Member for Walthamstow (Mr. Gerrard) said that those of us who are unhappy with the Bill are not happy with the law as it 660 stands. I hope that both will welcome my hon. Friend the Minister's confirmation that the Government will continue to consider the issues, which are extremely difficult and distressing for the patients, families and staff involved.
New clause 15 is designed to ensure that any trial under the Bill must be heard in the Crown court, not the magistrate's court. There is a gap in the Bill, or, as my hon. Friend the Member for Hendon (Mr. Dismore) described it, a lacuna. He is a lawyer; I am not. I am grateful for his support.
The Bill creates a new offence, but its degree is not defined, no penalty is specified and there is no confirmation of how the judicial system should deal with it. The importance of specifying trial in a Crown court is based on the nature of the matters that the courts will have to consider and on the nature of the offence that the Bill creates. The matters that the House considers will form part of the court's consideration at whatever level a case reaches in the judicial system and that is directly relevant to the judgment we make on whether the Bill should specify how such a case should be handled. Those matters are also directly relevant to our judgment on whether such cases should be heard only in a Crown court, as provided in new clause 15.
The other factor in the House's assessment of the need for new clause 15 is the clarity of the Bill as it stands, and what it will be left to the courts to interpret in trying to deal with any case that may be brought under the legislation.
§ Mr. Dismore
The point that needs to be emphasised is that a trial for murder would almost certainly be heard by a High Court judge, who would be experienced in interpreting law, especially of a vague nature as is the case with this Bill. However, if the trial were to take place anywhere else, the only legal advice would be from the clerk to the court in the magistrates court or from the stipendiary magistrate—people who, while very competent, do not possess that specific high degree of skill.
§ Mr. Healey
My hon. Friend makes a clear and valuable point. The purpose behind new clause 15 is to clarify such matters, which are at present unspecified in the Bill. The clarity of the Bill's provisions is relevant to the judgment about whether it should specify how cases should be dealt with and at what level.
I wish to convince the hon. Member for Congleton and my hon. Friends that the Bill is too open to interpretation and too complex to be dealt with at any other level in the judicial system than trial by jury in the Crown court. It is also too important to be left unspecified—
§ 2 pm
§ Mr. Deputy Speaker
Order. The hon. Gentleman has now repeated himself four times. If he cannot get to the substance of his argument, I shall invoke the Standing Orders to cause him to desist from speaking altogether. He must speak to the substance of his new clause, not indulge in endless repetition.
§ Mr. Healey
Thank you, Mr. Deputy Speaker. The Bill is short and deceptively simple. At the core of what the courts will have to consider—and, therefore, the reason 661 for ensuring that cases must be decided by jury at a Crown court level—is the provision about the "purpose or purposes" of withdrawing or withholding medical treatment. That will be the principal focus of decisions about whether an action is lawful and of any proceedings. It therefore bears heavily on judgments about whether we should specify how cases should be handled.
§ Mr. Ashton
In my earlier intervention, I mentioned the 85 cases that have been taken to court in America, where they have a more vigorous approach to suing for compensation than we do. Every single case has been thrown out by a jury. My hon. Friend the Minister mentioned the difficulty of preparing a case for prosecution and the need to prove it beyond any reasonable doubt, not on the balance of probabilities. My hon. Friend is making a valid point—and I am sure he is in order, Mr. Deputy Speaker—that juries in such cases do not convict, just as the jury refused to convict Dr. Moore when he was accused of murder in similar circumstances.
§ Mr. Healey
I do not wish to try to pre-empt any judgments that a court might make. My concern is to ensure that any case is properly dealt with under the Bill. The Crown court is the lowest level at which such matters should be dealt with. The new clause would give weight to one of the purposes expressed on the face of the Bill, and deal with the interpretive challenge presented by the way that the Bill is drafted. I shall elaborate on those two contentions.
Any court considering a case brought under the Bill as it stands would have to consider what was in the minds of the medics. That is the principal question, and its answer would be set against the patient's best interests or declared wishes. Those wishes might be contemporaneous with the treatment and expressed in patient consent, or they might be expressed in a statement made in advance of treatment. The Bill contains no provisions to the effect that the measure would apply unless the patient did not want treatment or sustenance, or unless such treatment or sustenance were not in the patient's best interest, or—as the hon. Member for Congleton said—unless the treatment were futile.
The Bill's lack of such qualifications means that, inevitably, the purposes of those involved would command more attention and be given greater weight than considerations that currently appear in case law or in codes of guidance such as that issued by the British Medical Association. The hon. Member for Congleton has argued that matters such as advance directives are beyond the scope of the Bill, and that qualifications such as I have suggested are not required on the face of the Bill.
However, I fear that the hon. Lady is wrong. A court would have to take a view on whether the attribution or assertion of purposes overrode all other such established factors for determining what actions were, or were not, lawful. That is the measure of the challenge that would face a court, and it is the relevant factor to be taken into account in specifying or confirming how actions taken under the Bill must be handled in the judicial system.
The hon. Member for Colchester (Mr. Russell) gave distressing personal testimony about what happened to his first daughter. The answer to the question posed to the 662 hon. Member for Gainsborough (Mr. Leigh), on whom the hon. Gentleman intervened, is that the action taken with regard to that little girl would be unlawful under the Bill as it is drafted.
The second matter to which I want to turn is the complexity of the interpretive challenge. Although such challenges arise in connection with other parts of the Bill, I shall concentrate again on the question of hastening the end of a person's life.
§ Mr. Deputy Speaker
Order. The hon. Gentleman cannot go into a debate about the issues in the Bill itself. His argument should be confined to the point at the heart of his new clause, and to that alone. That is the point about which is the appropriate court to deal with the matters covered by the Bill.
§ Mr. Healey
The point at the heart of the new clause is that the interpretive challenges posed by the Bill as it stands can be dealt with only at a specified and appropriate level—
§ Mr. Deputy Speaker
Order. The hon. Gentleman has made that clear six times. I understand that assertion, and it is entirely relevant in support of the new clause. However, I can see no connection in his other remarks with the main purpose, which he has just repeated,
§ Mr. Healey
In attempting to assess the interpretive challenge facing the courts, we are entitled to look to the explanations given by the hon. Member for Congleton to assist with the problem. She has maintained consistently that an offence under the Bill would be akin to murder. However, I believe that the men's rea would be different.
In Standing Committee on 16 February, the hon. Lady stated:If I had used the word "intention" in clause I, it could arguably have been claimed that we wanted to outlaw anything that would have the side effect or double effect of hastening or causing death. That would, of course, be an intolerable restriction on medical care.She continued:Everyone understands what "purpose" means and is. I have said at length that it is equivalent to "intent" …So even in her presentation of the Bill, the hon. Lady created a lack of clarity and a confusion that will have to be resolved by the courts. The hon. Lady explained that she used the word "purpose" becauseit has not been spoiled with lawyer's fictions about foreseen effects.—[Official Report, Standing Committee C, 16 February 2000; c. 41–42.]The Bill inserts the word "purpose" into the legal system for the first time. However, I suspect that it will not be long before it is subject to the same scrutiny and questions about interpretation as "intention". My hon. Friend the Member for Hendon, in his deep research through "Archbold" has been unable to find a legal definition of the word "purpose". If the Bill reaches the statute book un amended, it will have a legal definition before long.
I have tried to explain why the interpretive challenge for the courts seems unavoidable. Purpose is a new term and it will inevitably be tested. The declarations and directions from the hon. Member for Congleton are contradictory, so it will be for the courts to settle the 663 matter. It should not be open to consideration by magistrates, as that would not be the appropriate level in our judicial system.
§ Mr. Dismore
The hon. Member for Congleton (Mrs. Winterton) said that she does not want to use the word "intent" because it has been jumbled up by lawyers. One issue that the Crown court would have to determine on indictment is the definition in the new clause. In respect of intent, "Archbold" says thata judge … should avoid any elaboration or paraphrase of what is meant by intent, and leave it to the jury's good sense to decide whether the accused acted with the necessary intent.So as far as "Archbold" is concerned, it is clearly a matter for the jury.
§ Mr. Healey
I am grateful to my hon. Friend for his helpful intervention.
I shall not repeat the problems that the courts will have to resolve as a result of the conflicting definitions suggested by the hon. Member for Congleton. There is also a contradiction in her description of the application of the Bill. That too will be for the courts to clear up.
In Committee, the hon. Member for Isle of Wight (Dr. Brand) referred to the case of Tony Bland and asked the hon. Member for Congleton:Is she suggesting that the doctors' purpose was to cause death, or does she agree that the doctors' purpose was to cease treatment, allowing death to occur …?The hon. Lady replied:My answer is the obvious one, which has been repeated many times. If food and fluids are withdrawn, death is inevitable…Therefore, the doctors' purpose in that case—purpose, not intention—was to bring to an end the life of that patient in PVS by the withdrawal of food and fluids … I know that he—the hon. Member for Isle of Wight—does not agree with me, but that is the simple principle laid down in the Bill.To be fair to the hon. Lady, she also saidIf medical treatment is withdrawn, death is not inevitable.—[Official Report, Standing Committee C, 16 February 2000; c. 14.]The hon. Lady tried to draw a distinction between medical treatment and sustenance, but the Bill as drafted treats them in exactly the same way. That is a contradiction in applications that the courts will have to resolve. That is part of the reason for new clause 15, which would confirm how cases brought under the legislation will be dealt with.
Another problem is that for certain patients the withdrawal of medical treatment will just as inevitably lead to death. In Committee, the hon. Member for Isle of Wight asked the hon. Lady what would happen in the case of a severely malformed child when withholding or withdrawing medical treatment would lead to death, just as in Tony Bland's case the withdrawal of food or sustenance meant that death was inevitable. However, in response to that similar—indeed, identical—point, the hon. Lady answered:When doctors face such cases, they ask whether treatment would be futile or whether it would be beneficial or burdensome to the patient. If treatment is futile and would not improve the patient's life, doctors would be able to withdraw treatment because the purpose involved would not be to end life.—[Official Report, Standing Committee C, 16 February 2000; c. 29.]664 Whatever the honesty and integrity of the hon. Lady's intent, that is not how the Bill as currently drafted would work. That confusion and contradiction in its application would have to be a matter for the courts to consider.
Although "purpose" as a legal term might not yet have been, to paraphrase the hon. Lady, mucked about with by lawyers, it will be soon after the Bill reaches the statute book. There is confusion and contradiction within the definitions, and confusion and concern about the application—both matters for the courts to clear up and both clearly beyond the competence of magistrates courts. That is why we must ensure that those issues can only be dealt with and referred to the Crown court by trial.
My second point relates to the nature and seriousness of the offence that justifies my having tabled new clause 15. Despite the descriptions of the nature of the offence in the briefings and statements supplied by the hon. Member for Congleton, it is not specified in the Bill, despite the fact that it is highly relevant to the courts in determining how to deal with it. Supporters of the Bill have said that the offence the Bill creates is akin to murder and, on 15 March, the hon. Lady sent me and other hon. Members a briefing on the Bill that makes that clear. Under the heading, "The Need for the Bill" it states:A doctor who intentionally hastens a patient's death by an act commits murder. Until 1993, it was equally unlawful for a doctor intentionally to hasten a patient's death by omitting medical treatment.Later, the briefing states:The one and only aim of the Bill is to restore the law's moral and intellectual shape by restoring its prohibition on purposeful killing by the withholding or withdrawing of medical treatment or tube-feeding.
New clause 15 is intended to provide clarification and confirmation. It would make explicit that which, to date, has been implicit and stated in places other than on the face of the Bill, and which has focused on the criminal law and the offences of murder and manslaughter. Murder and manslaughter are crimes that can be tried only on indictment—in other words, they cannot be tried in a magistrates court. My hon. Friend the Minister for Public Health made it clear that cases in which there is a large amount of scientific and factual information are appropriately handled by a judge and jury, and that is what new clause 15 would provide.
I am not a supporter of the Bill, but I hope that the hon. Member for Congleton regards new clause 15 as helpful and recognises that it is necessary. I was disappointed by her statement that she is unable to accept the new clause and I hope that she will reflect on my remarks. If she is not prepared to change her attitude to the new clause, I shall press it to a vote and ask hon. Members on both sides of the House to support it.
§ Mr. David Rendel (Newbury)
I wish to make only a few remarks, which are occasioned by the intervention of the hon. Member for Brentwood and Ongar (Mr. Pickles) and by some of the remarks made by other hon. Members.
I start by declaring a second-hand interest in the matter, in that my wife is a general practitioner and, like all other doctors, come across the sort of cases that are being discussed in relation to the Bill. It is important to make that point, as it gives me, I hope, some insight into the 665 sort of problems faced by the medical profession, in particular the increasing litigiousness of our society, and the fact that more and more people are inclined to blame the medical profession for things that are out of its control, and the difficulties that that brings.
At least two of the new clauses in the group give a measure of extra protection to the medical profession from people who may be behaving somewhat irrationally, at a time that is inevitably one of enormous stress and emotion for the relatives of the deceased person or the person who may be about to die, and indeed for the patient.
Anyone who has seen a loved one go through the process of dying will accept that, at such times, people can become somewhat irrational in their reaction to what is happening. I was struck by the intervention of the hon. Member for Brentwood and Ongar, who I am glad to see is returning to his place. I fully accept his point that private prosecutions have sometimes led to justice being done, when otherwise it might not have been done, but I suggest to him and to the House that there are also occasions on which a private prosecution may lead to some injustice being done, if it is initiated in an irrational manner, as a result of someone being particularly emotionally involved in a case.
That is the danger of not providing some degree of separate, objective, unemotional reference by which to determine whether a prosecution should go ahead. I hope that the new clauses would provide a more objective view of the circumstances.
It is, of course, right that no doctor is above the law and that no doctor can be immune from prosecution. Sadly, as we have seen in the past few months, some doctors behave in a way that is clearly not in the best interests of their patients and may sometimes illegally bring about their deaths for reasons that are entirely unacceptable. It is also right that many members of the medical profession are acting in the best way they can, sometimes in challenging circumstances, to succor and help their patients at a time that is difficult for them.
My concern is whether it is in the best public interest as a whole that doctors who are making difficult decisions are liable to be subject to prosecution, possibly as a result of a relative taking a rather emotional view of the situation.
As we all know, in end-of-life situations, relatives may begin to have guilt feelings, possibly as a result of their feelings about the person who is dying, or as a result of long-standing issues that have not been properly brought out. They may be feeling guilty about the process of death itself. It is a perfectly natural and human reaction to have some feelings of guilt when we remain alive and someone whom we love very much comes to the end of his or her life. That feeling of guilt sometimes leads people to react in a way that is not rational, and to try to transfer their guilt to someone else. In those circumstances, which are different from those that the hon. Member for Brentwood and Ongar mentioned, relatives are perhaps most likely to bring an irrational private prosecution. As the hon. Gentleman said, such an action, far from leading to greater justice or removing injustice, it is likely to lead to injustice, 666 I hope that hon. Members will accept that the medical profession should not be put under extra strain. Being a doctor is becoming increasingly traumatic because of the public's growing litigiousness. It is not in our best interests that that should continue. Sadly, it is leading gradually to more defensive medicine, to doctors being increasingly careful about taking extreme measures, which are perhaps not truly in the patient's best interests because of their fear that they might otherwise be hauled before the courts.
Doctors might not believe that they are likely to be found guilty—they may be sure in their own minds that the way in which they plan to act is proper and in the best interests of the patient. However, even if they are sure of their innocence, it is traumatic to fear being hauled before the courts—apart from which a case that is brought on an irrational basis is time wasting and expensive.
It cannot be in the public's best interests for such time wasting to occur or for our doctors to resort increasingly often to defensive medicine simply because of the emotional circumstances in which they have to act. We are considering critical, difficult moral decisions. It is not in our best interests to put extra pressure on the medical profession so that its members are hauled before the courts, not for reasons that are rational but because of extreme emotions.
We should accept either new clause 10 or new clause 11 today. I suspect that new clause 10 is preferable, mainly for the reasons that the Minister outlined. I am delighted that we are having this debate today, because we are considering an important issue. However, I hope that the Government will take on board that it is time for clear legislation. We should not leave the matter to the medical profession because that puts intolerable pressure on its members.
§ Ms Julia Drown (South Swindon)
Clearly, we shall not finish our debate on the new clauses today. I want simply to make a few points which I believe are important.
I wish I could say that the debate has clarified matters, but it has not. We have progressed on new clauses 10 and 11 because there is some preference for new clause 10 for the reasons that my hon. Friend the Minister outlined.
I have received many letters from my constituents, but they tend not to tackle the detailed matters that we are considering. They state that we should use the guiding principle of respect and compassion when considering the Bill.
My constituents want to be sure that justice is done. They will express anxiety that new clause 17 might lead to justice being hidden, rather than being seen to be done. Yet if we bring the guiding principles of respect and compassion to bear, we can understand why new clause 17 has been tabled.
We read in the press recently that people are anxious about doctors making decisions without considering what patients want. We should consider what patients want.
§ It being half-past Two o'clock, the debate stood adjourned.
§ Debate to be resumed on Friday 5 May.