HC Deb 09 July 2002 vol 388 cc789-93
Mr. Denham

I beg to move amendment No. 39, in page 55, line 6, after "patient" insert— 'no specimen of blood shall be taken from him under section 7A of this Act and'.

Mr. Deputy Speaker

With this it will be convenient to discuss Government amendments Nos. 40 to 46.

Mr. Denham

The amendments seek to protect a person unconscious after an accident by providing that a constable cannot ask for a blood specimen to be taken if the medical practitioner with clinical care of the person objects. The amendments meet an undertaking that I gave in Committee to consider an amendment covering the same ground moved by the hon. Member for South-East Cambridgeshire (Mr. Paice).

The amendments to the Road Traffic Act 1988 introduced by clause 50(1) make it lawful, but not compulsory, for a medical practitioner to take a specimen when requested, if he thinks fit. The Bill already prevents the request being made to the practitioner with clinical care of the person concerned. Clearly, it would not be fitting if the practitioner with clinical care objected or if it were against his own medical judgment.

The Road Traffic Act already protects hospital patients by providing that a patient cannot be required to give a specimen if the clinician objects. Clause 50(2) further amends the Act to provide additional protection in that, when he recovers capacity, the person from whom the specimen was taken cannot be required to consent to its analysis if the clinician objects.

It has never been our intention to allow a specimen to be taken without consent where the clinician objects. However, we need to ensure as far as possible the equality of treatment between conscious and unconscious patients, at whom the measures in the Bill are aimed.

At present, a clinician can object to, and so prevent, a conscious patient from being required to provide a specimen. Under the Bill as it stands, the clinician can object to, and so prevent, an unconscious patient being required to consent to analysis of a specimen, but he cannot object to, and so prevent, the specimen from being taken in the first place. In practice, that is highly unlikely to happen: a medical practitioner would not take a specimen if the clinician objected, for reasons of medical ethics and professional etiquette. It remains, however, a theoretical possibility. The amendments would remove that possibility. Parallel amendments are made to the Transport and Works Act 1992.

6 pm

Mr. Paice

The Minister knows that the Opposition strongly support this cluster of amendments, which puts right a legal anomaly that has allowed some people to escape prosecution for their crimes because they were unconscious at the relevant moment. We support that, but, as he said, we raised in Committee the issue of the responsibility of the clinician in charge of a patient and his right to refuse to allow a sample to be taken. The issue arose in the British Medical Association's representations to me and I am grateful to the right hon. Gentleman for his response, which I welcome. He did not say whether he had spoken to the BMA about the amendments. Will he confirm that he has done so and that it is happy and content that they achieve the objectives about which it expressed the concern from which the original amendments arose?

Mrs. Annette L. Brooke (Mid-Dorset and North Poole)

I speak for myself and my hon. Friend the Member for Lewes (Norman Baker) in welcoming the amendments. It was especially pleasing to see the Minister responding to the very good points that were made, and we all appreciate his taking them away and incorporating them into the Bill.

Mr. Hogg

Before I can give my consent to the amendments, I should like the Minister to answer one or two questions, both general and particular. First, new section 7A(1)(d) to the Road Traffic Act 1988 states: it appears to that constable that that person's incapacity is attributable to medical reasons. I need to know a little more about the meaning of the phrase "medical reasons". I cannot find any illumination in the definitions section of the Bill, but such reasons may be defined in other legislation. In that case, it would be helpful to know which legislation is involved.

My anxiety is that the incapacity in question could arise from a mental disability. On the face of it, such disability could well be attributable to medical reasons. The Minister spoke about somebody being unconscious, and such circumstances will clearly fall within the definition, but what happens if an individual is suffering from a severe disease or abnormality of mind? Does the phrase "medical reasons" prevent the clause from applying to such a person? I require clarification on that question. If the clause can apply to such a person, we are considering giving somebody who is suffering from a mental abnormality or disease a warning about the consequences of not supplying a specimen, which is a pretty pointless activity.

We need to be clear that the classification of individual for which the clause provides does not extend to the mentally ill or abnormal, otherwise, we have got a problem. Of course, one resolution would be to provide that the warning should not be given unless the medical practitioner certifies that the person is capable of understanding it. If the medical practitioner made such a statement, one might assume that the position of the patient was safeguarded.

My question is this: does the provision cover those who are mentally ill, and if so, what protection will be given to such people? They would not understand the warning and a prosecution might well flow in respect of an offence that they did not fully comprehend.

Ms Candy Atherton (Falmouth and Camborne)

My right hon. Friend the Minister will know that I have been much exercised by the issue with which the amendment deals because of the case of the late Sarah Kettle in my constituency and the campaign that her mother, Mary Kettle, has run to obtain justice for families who find themselves in similar circumstances in future. Will he assure me that blood can be taken by a medical practitioner when somebody has been involved in a serious accident such as that which occurred in the Kettle case and ensure that, in similar circumstances, justice can be seen to be done in future?

Mr. Denham

Certainly, it is very much the intention of the clause to ensure that justice is done in future. There has been extensive discussion with the British Medical Association about trying to get the legislation right and to ensure that it has the right checks and balances. The underlying problem is that of somebody who has been involved in a road accident and was drunk at the time, but can escape prosecution purely by virtue of being unconscious. That is the loophole that we are trying to close. It is only fair to the House and to everyone else to say that we are seeking generally and in the amendment to ensure that the proper clinical duties of doctors and their ethical position are also respected. My hon. Friend the Member for Falmouth and Camborne (Ms Atherton) would not expect anything different.

The hon. Member for South-East Cambridgeshire (Mr. Paice) asked about the BMA. In answer to his question, I have to confess that I have not spoken to the BMA. I have every reason to believe that the amendment deals with the issue that it raised, but he asked me a direct question and I must give him a direct answer: I have not spoken to the BMA, but I would be mortified if I found out that the amendment did not address the issues about which it was concerned.

The right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) asked about people who are mentally ill. Perhaps I have missed his point, but I am not sure whether he has entirely understood the gist of the provision. Clearly, the person's incapacity must be attributable to medical reasons. Given the essence of that safeguard, I do not think that there is any question of a sample being taken if either the medical practitioner making the request or the clinician who is responsible for the person's care objects. That is the purpose of the amendment: it builds into the system the clinical protection of the judgment of the clinicians who are responsible for dealing with the matter. I do not think that the difficulty to which he alluded will arise in practice. If there is a problem of definition, the provisions will place clinical responsibility on the clinician who is responsible for the individual patient's care to object if he does not think that the procedure is in the patient's clinical interests.

Mr. Hogg

I should like to press the Minister a little further. Two circumstances trouble me. First, a prosecution can follow from a failure to supply a specimen. For that to happen, a warning must be given, but in order to accord with the rules of natural justice, the warning must be tendered in such a way and to such a person as to ensure that it can be understood. A mental patient may not be able to understand the warning, which is given by the constable and not the doctor.

Secondly, and rather differently, if a person who has had an accident was rendered unconscious and is in a pretty woozy state on coming round, the constable may well set about giving a warning prematurely, when the patient may not fully understand what is going on. Surely, there should be some requirement to ensure that if there is any doubt about the patient's ability to comprehend the warning, the medical practitioner will be asked to express an opinion.

Mr. Denham

The legislative approach is that, under existing road traffic legislation, it is conceivable that somebody who is asked to provide a sample will be unable to comprehend the warning, although one might query why such a person was driving a car. None the less, that is possible under existing legislation, so there is nothing new here.

We are introducing a protection that attempts to put the unconscious person from whom the sample is taken in the same position as that of somebody from whom a sample is taken under existing legislation. If a sample is taken and the person decides on regaining consciousness that they do not wish it to be analysed, they can refuse to allow that to happen. They will therefore have put themselves in the same position as that of somebody who is competent to refuse to allow the taking of a sample and decides to take the consequences of being taken to court in relation to that refusal. We have carefully structured the provisions so that a person from whom a sample is taken while they are unconscious can, if they like, put themselves in exactly the same position as somebody who refused a sample in the first place.

With regard to the circumstances to which the right hon. and learned Member for Sleaford and North Hykeham referred, in which somebody with a mental incapacity was unable to understand the question, unless such a person was unconscious at the time, which would mean that they were dealt with under the provision, the situation would be unchanged from that which applies under existing road traffic legislation.

Amendment agreed to.

Amendments made: No. 40, in page 55, line 8, leave out— 'section 7A of this Act' and insert 'that section'

No. 41, in page 55, line 10, after "proposal" insert— 'to take the specimen or'.

No. 42, in page 55, line 17, after "that" insert— 'the taking of the specimen;.—[Mr. Denham.]

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