HC Deb 14 June 2000 vol 351 cc257-64WH 12.57 pm
Mrs. Angela Browning (Tiverton and Honiton)

I am raising this subject because of the case of Charis Yeoman, who was a constituent of mine.

Charis was a 20-year-old student nurse. She was killed in 1997. While driving her car on a dual carriageway, she was hit by a driver who in the previous six hours had consumed six pints of beer and 10 measures of spirits, and then driven down the Tiverton link road to prove that he could do it in record time. For therapeutic medical purposes, a blood sample was taken from the driver after he had been taken unconscious to casualty, but it could not be used as evidence in court because the criminal concerned had not given permission, and would not give permission, for it to be so used.

In Charis's case, the police were fortunate in being able to track down the pub where the drinking had taken place. It was a busy bank holiday, and the publican did not volunteer to the police the fact that the individual concerned had drunk to such excess on his premises. Luckily, because it was a busy day, there were enough witnesses, including one who was able to specify to police the excessive amount that the man had drunk.

The point I am making is that, in bringing the prosecution, the police could not rely on the evidence provided by a blood test. That could also have happened when there were no key witnesses to bring a prosecution at all.

Charis Yeoman's case is not unique. We know that there are other such cases elsewhere in the country. In a letter written to me in 1998, Assistant Commissioner Paul Manning of the Association of Chief Police Officers referred me to the 1989 White Paper "The Road User and the Law". Although attitudes to drink driving have changed dramatically in recent years, the same problems still exist. The purpose of this debate is to seek Home Office Ministers' support for changing the law so that natural justice can prevail in such cases. Justice is not well served as the law now stands.

In 1998, I had a meeting with the Minister then responsible for these matters, the right hon. Member for Cardiff, South and Penarth (Mr. Michael). When the right hon. Gentleman changed Departments, his successor as Minister of State at the Home Office, the right hon. Member for Brent, South (Mr. Boateng), wrote to me, stating: The Government is sympathetic to the principle that an offender should not evade conviction for the very serious offence of drink driving, and we would be willing to consider possible improvements to present legislation. Much time has elapsed since I had those meetings with Ministers. That is because I had to do more research into the matter and, more pertinently, I discovered that the Kent constabulary was preparing a detailed paper on this and other issues to do with testing and breathalysing people. However, I wish to focus today on the law covering blood tests in drink-driving cases.

I have held meetings and corresponded with a range of people and bodies, including the Association of Chief Police Officers, the British Medical Association, the General Medical Council, police surgeons and biochemists. I have spoken also to other hon. Members who have had constituency cases resembling the one that I have described.

Most importantly, the Kent constabulary report by Sergeant Tony Ramskill has now been published. I know that the Home Office has been able to study it, as have other interested parties. My presentation today is about more than that report, but it is an important piece of research which could help to clarify how we can improve the legislation.

The report mentions the Charis Yeoman case, and it discusses the difficult and vexed issue of whether blood samples should be taken when the driver is unconscious and unable to give permission. That matter has implications for the medical profession and for police surgeons. Sergeant Ramskill's study goes into some detail, and makes specific recommendations about the role of police surgeons, who in future may be given permission by a hospital's accident and emergency doctors to take from patients blood samples that could then be used as evidence in court.

That is a vexed issue. It has been addressed in other countries, and trials have already been held here. The Lothian and Borders force and the Fife constabulary currently use hospital staff to take blood samples. That system has also been trialled recently at a hospital in Cheshire.

Under the Road Traffic Act 1988, such samples have to be taken in a hospital. Two key issues therefore arise that need to be dealt with. First, the BMA has told me that it has concerns on behalf of its members, especially on behalf of admitting casualty doctors, about doctors' responsibility to their patients. That is a difficult problem, but it could be resolved by changing the way that the law is framed, so that admitting casualty doctors are not placed in a judgmental position. I must make it clear to the Minister that the proposal is not that doctors should be required to pick and choose whom they think the police might pursue for criminal prosecution.

I had a meeting some time ago with the BMA's ethical committee, which has responded to the Ramskill report, and continues to express concern. The BMA's response to me in a letter encapsulates the legitimate concern that must be addressed: the role of a doctor is to treat people with a clinical need, whether they be a drink driver or the victim of a drink driver. The basis on which society permits doctors to help individuals who cannot consent themselves is that to do so is in their best therapeutic interests. Unless there is evidence to the contrary, consent can be assumed. Although there may be grounds for society to decide that it wishes to expand the scope of implied consent to include consent to taking and/or testing of samples for forensic purposes, the BMA considers that it would be inappropriate for doctors to press for such a change. A change in the law would have an inevitable impact upon the therapeutic relationship, and one which could undermine confidence in the doctors' role as patient advocate. Were such a change to be made, it would be important that the impetus came from society, not the medical profession. The BMA clearly recognises that a problem exists. The association—rightly—represent the concerns of its members, but it acknowledges that the House represents and articulates the views of society in general. Society does not believe it right that the law allows someone who wilfully drinks to excess and takes another person's life to evade prosecution and an appropriate sentence. The challenge for hon. Members is to find solutions to the problems that I have described that allow doctors to carry out their duties without undermining the patient-doctor relationship.

The Kent police study found that 94 per cent. of medical staff would be prepared to take blood samples if that would not make them subject to legal challenge by patients. The remaining 6 per cent., of course, would not be willing to do so. Now that the report is available, Home Office Ministers should seek solutions to the problems that have created the difficulty in the law.

The available choices need to examined and pursued. First, should the law be changed so that drivers in road traffic accidents are tested automatically, subject to medical consent and as long as such tests do not jeopardise medical treatment? That option should be considered carefully. Blood samples are always taken from unconscious drivers taken into casualty departments. The sample size could be increased, so that it could be divided and stored properly. In that way, drivers could give their consent, or otherwise, to their blood samples being tested later, when they were in full possession of their faculties. That extension of the current procedure would not require any new invasive technique, as needles are used anyway to secure the routine therapeutic sample.

The Ramskill report also suggests that police surgeons should be allowed to remove samples, with the consent of the casualty doctor or the doctor in charge of the unconscious driver. Once the driver was well enough, he or she would have the right to agree, or otherwise, to the analysis of the sample being made known to the prosecuting authority.

As I have mentioned, matters of law arise when samples are taken, and we must consider carefully the position of the doctor. It would be one way forward if we could ensure that the law was changed so that the legal position of the doctor was not undermined, and he or she would not be subject to legal challenge under the civil or criminal law on the grounds that the procedure they had carried out was invasive and constituted an assault. Once the legal problems that doctors fear were overcome, we could start to address the ethical issues that must also be considered.

The experience of other countries such as Belgium, Cyprus, Denmark, Australia and many others, where blood samples are taken, indicates that changes are needed now in this country. I make no specific recommendation to the Minister, other than to say that recent research must now open up that area of the law to change, so that justice can be done, and can be seen to be done.

On the issue of ethics, the GMC has outlined its agreement, subject to reservations, such as the need for trust between doctor and patient to be assured. I believe that that issue can be overcome without the doctor's position being undermined. In the matter of ethics, the wider issue of the safety and health of members of the public who may be maimed or killed if drink drivers are not successfully prosecuted should also be considered. I return to the point that the BMA made in its letter to me about society pressing for this change. If Members of Parliament are to represent the views of society—I speak generally, not only about my constituency case—we must recognise that society is concerned about the safety of the public in general, which can be served only by successful prosecutions and appropriate sentences.

I have considered carefully the rights of victim and killer. While I would not wish to undermine the important doctor-patient relationship, I question where the balance lies in ethical terms. Does it tip in favour of the person who has perpetrated a criminal offence, but has been lucky enough to escape with his or her life and is taken to hospital, conscious or unconscious, through the accident and emergency entrance? Or does the balance tip in favour of the rights of the victim, who—as society must recognise—still has rights even though he or she has died?

Unlike the perpetrator of the crime, the victim is taken through a different hospital entrance and immediately becomes the property of the coroner. If we are considering issues of ethics and morality, the rights of the victim in those circumstances have at least equal weight with the person who has perpetrated that crime. In such cases, the evidence that is critical to a prosecution and an appropriate sentence should not be denied to the victims and their families.

In recent years, we have seen a distinct change in public thinking about the whole issue of drink driving, and we sometimes have to make judgments that are not easy, but do at least put the victim first. Therefore, I ask the Minister to consider whether now is the time to make progress in this area. I know that he has received much extra information, and I have far more information than I have been able to share with him in the course of 15 minutes.

Much technical information was provided to me by the clinical biochemistry department of the Royal Berkshire hospital about the way in which blood samples should be kept and stored so that they can be used as evidence in court. That point will need to be addressed after consideration of the principle of changing the law. I do not doubt that we will need consultation on the issue, but the difficulties are not insurmountable.

I hope that when the Minister replies to the debate he will agree to a meeting with me before the recess, so that we can explore in more detail how the matter might be taken forward. In that way, for Charis Yeoman and others like her, people who drink and drive and wilfully claim the lives of others will know that they will be prosecuted under the law without being able to deny the judicial system the very evidence that proves their guilt.

1.16 pm
The Minister of State, Home Office (Mr. Charles Clarke)

I genuinely congratulate the hon. Member for Tiverton and Honiton (Mrs. Browning) on securing the debate. To be frank, I was not personally aware of the details of the cases and histories involved in this important and vexed issue, until the hon. Lady secured the debate and I briefed myself for it. I am grateful to her and can immediately agree to her final point, because I am happy to meet her before the recess to discuss how we may make progress. It is a very important issue and it is right that she campaigns on it.

The hon. Lady was generous enough to say in her introductory remarks that the issue has concerned several hon. Members. For example, my hon. Friends the Members for Ellesmere Port and Neston (Mr. Miller) and for Luton, South (Ms Moran) have campaigned on it.

It is appropriate, as I begin, to comment on the case of Charis Yeoman, which the hon. Lady mentioned. It is right that we acknowledge the terrible tragedy that befell the family when Charis was killed in the road crash, and I wish to express condolences to the family on behalf of everyone concerned. Perhaps I may offer them the consolation that if we are able to change the law in the future, something constructive may come out of that terrible tragedy.

As the hon. Lady knows, the issue has been the source of debate for many years, and it is the difficulty and sensitivity of all the points involved—many of which she mentioned—that have made it such an intractable subject. I am pleased to have this opportunity to debate the matter because it is an area of law and medical ethics that we need to consider regularly to see whether any changes have occurred to justify taking a different overall view from that taken in the past. The hon. Lady cited several reasons why we should do so.

Of all of the road safety issues involving death and serious injuries on our roads, none has received greater support from the public than those concerning drink driving. We want to ensure that we continue to make progress and reduce the casualties still further. In consequence, any deficiencies in the current arrangements must be considered most carefully. That is especially true if practice, procedures and the existing law may lead to offenders escaping trial and a due sentence, because—for the reasons the hon. Lady mentioned—the necessary evidence cannot be collected in time. She may be interested to learn that we shall publish a consultation document on the whole question of penalties for road traffic law to take the debate still further forward.

When a patient is admitted to hospital as a result of a crash, the first concern must be for that patient's welfare, whatever the circumstances that led to the admission. That is right and we cannot resile from it in any way. In consequence, the road traffic legislation recognises that the normal procedures associated with breath testing cannot be applied to that patient unless the doctor treating him or her is satisfied that the necessary procedures would not be prejudicial to the proper care and treatment of the patient. That also raises the key ethical issue of whether the doctor involved in treating the patient would be acting contrary to medical ethics if he became part of the process of gathering evidence to prosecute his patient.

The duty of care to the patient, and indeed to patients in general, could conceivably be undermined if it was thought that doctors were somehow operating on behalf of the authorities rather than primarily caring for the patient. That is the issue that has informed much of the response from both the British Medical Association ethics committee and the General Medical Council.

As the hon. Lady said, there is also the issue of obtaining the patient's consent. Doctors can take blood samples without the patient's consent, because their primary duty is a therapeutic one that is designed to help the patient. The whole breath-testing procedure rests crucially on obtaining consent. I understand that, in law, any taking of blood without consent would constitute an assault and would have to be treated accordingly. The hon. Lady referred to that fact in her comments on intrusive forms of medical treatment.

The law already provides that those who refuse to provide a sample commit an offence for which the penalty is not dissimilar from that for an ordinary drink-driving offence. However, often patients are not in a fit state to give their consent, even when the doctor is prepared to allow a sample to be taken.

Mrs. Browning

My understanding is that when a person is conscious after an accident but declines to give a sample, the penalties are pretty derisory. This point may be tangential to the specific subject of the debate, but I do not think that the current one-year maximum penalty is sufficient for those who refuse to give a blood sample. I was therefore pleased to hear the Minister say that the Government will consult on the way in which courts treat drink driving in sentencing.

Mr. Clarke

That is a perfectly fair point, and I am sure that the hon. Lady will make it in response to the consultation paper that we shall issue. That paper is based on a view that has been expressed in various ways on both sides of the House—that our penalties have not been updated sufficiently to take account of what she correctly described as the change in public attitude towards driving offences, particularly drink-driving offences, and then tragic consequences. Her point is well made, and I am sure that she will make it directly in response to the consultation.

The classic case in the sphere that we are discussing is that of the unconscious patient from whom blood has been taken for medical diagnostic purposes, but from whom a sample for drink-driving purposes cannot be taken. Indeed, that is exactly the example that the hon. Lady gave. It has been suggested that the use of any remaining part of a diagnostic sample might be used for forensic analysis, and that consent could be obtained from the patient at a later date. There is indeed a precedent for that in a previous case. Under current arrangements, however, that would be a very speculative process that would be open to substantial challenge in court proceedings. Nevertheless, that is exactly the argument that the hon. Lady is using.

Alcohol-impregnated swabs are usually used in the taking of diagnostic samples. It is already well established that that might be used to invalidate the blood sample. Usually, no preservative or anticoagulant is mixed with diagnostic samples. Therefore the sample starts to deteriorate in various ways, which could make further analysis difficult or easily open to challenge.

Mrs. Browning

Will the Minister give way?

Mr. Clarke

I shall in a moment.

There would be difficulty in establishing the chain of evidence—that is, incontrovertible evidence that the blood was taken from the patient to the point at which it was sampled and finally analysed, and that no errors in its handling or labelling had occurred in between. By the time that the diagnostic sample could be released, it could well have been degraded by bacteria.

I wanted to list those points. They all involve technical issues, but they show that the standard medical procedure used for diagnostic purposes raises problems in the context of drink-driving legislation. However, I acknowledge what the hon. Lady said about the technical evidence that she has acquired. I give way to her.

Mrs. Browning

Obviously, I would be happy to make available to the Minister the information that I have been given by the clinical biochemistry department. I believe that sample degradation could be overcome by the use of fluoride, which stops that process. I also agree that, for the purpose that we are discussing, changes would have to be made to the way in which samples are taken and stored. However, I think that the problems that the Minister described are technical ones which could be overcome.

Mr. Clarke

I acknowledge that the hon. Lady is right. It certainly seems right that overcoming such problems would require a change in medical procedures in cases involving suspected drink driving. The issue, however, is whether such changes in procedure, which perhaps could be achieved along the lines that she is suggesting, would be ethically acceptable to doctors in the framework that we are talking about. That is precisely the issue that we are debating.

As the hon. Lady said, the Home Office runs a scheme to fund individual police officers to undertake research projects that it is thought might throw light on operational policing issues. As part of that, the Home Office agreed to fund the recent report by the police officer in Kent constabulary to which she referred. He has produced recommendations on the matter following a study of the position in Australia. Of course the views that he has expressed are not those of the Home Office; as the report itself makes clear, they are the views of the author alone. Nevertheless, he has tried to address a very difficult subject and, within his remit, has significantly added to the sum of knowledge on the issue and moved it forward precisely as the hon. Lady has described.

I am also aware that the British Medical Association and the General Medical Council have seen the report and commented on it. I have copies of letters from them explaining their position. I shall place copies of those in the Library for hon. Members to refer to, and send a copy of them to the hon. Lady. I also have a very interesting annexe produced by my officials on the procedures and problems associated with testing hospitalised drivers for alcohol, which consists of a flow-chart showing the difficulties of the process. I shall also send a copy of that to the hon. Lady, for her information in taking the debate forward.

Although the General Medical Council has said that in principle it would be acceptable to take blood from a person who is not competent to give consent, its letter goes on to explain all the practical difficulties involved. Those difficulties match the concerns expressed by the chairman of the BMA's medical ethics committee.

My officials have talked to both the BMA and the GMC, and we believe that there is not a fundamental difference of view between the two organisations on the issue. We also believe that the different ways in which they have expressed their views are the result of their different functions, not of a basic difference of opinion. However, none of that undermines what the hon. Lady has rightly said—that we have to face the issue head on. In the context of the competing rights involved in the case that we are discussing—those of victim, doctor and driver—we have to find a resolution that is acceptable to the community as a whole, to ensure that people do not get away with illegal activity simply because of an evidential problem that could not be resolved differently.

I have thought it appropriate to make it clear that the ethical problems with which we have been struggling have not changed substantially since publication of the report by the officer in Kent county constabulary. None the less, I also want to tell the hon. Lady that we are happy to look again at all the issues involved in the light of the latest position, and of the points that she has made.

Following this debate, I shall talk to my colleagues in the Department of Health to determine whether there would be value in having a joint Home Office and Department of Health consultation on the subject, to discuss some of the issues. As a result of the way in which the hon. Lady has raised the issues, I think that it might be helpful to take forward the debate in a slightly more structured way. As I said, I shall talk to my colleagues in the Department of Health to see whether some process of that type might be appropriate.

As I also said, I shall be happy to meet the hon. Lady before the recess, as she requested, to discuss how we might take the whole debate forward. It is very much a cross-party issue, on which many hon. Members on both sides of the House are concerned to ensure that we make progress.

The Government have always made it clear that we should like to resolve any difficulties in drink driving enforcement. I know from the way in which she has dealt with this debate that the hon. Lady recognises that there are difficult and complicated problems involving medical ethics and procedure, and technical issues that need to be resolved. I am inclined to think that the type of consultative process that I described might be the best way forward. Therefore, as I said, before she and I meet before the recess, I shall talk to my colleagues at the Department of Health to determine whether a joint process to take the debate a bit further forward is possible.

I should perhaps take this opportunity to reassure doctors, and the GMC and the BMA, that we take their ethical questions extremely seriously. It is important for us to understand the exact basis of the position and to propose procedural or technical solutions that would accommodate those concerns and find a way through. However, as the hon. Lady said, at the same time we have to be clear that society and the community want us to ensure that there is genuine justice—so that the perpetrators of what are, after all, crimes can be properly brought to justice, in a manner that I hope will also inhibit future breaches of the law, and thus future tragedies.

I am very grateful to the hon. Lady for initiating this debate. I have responded to it as constructively as I can, to try to move us forward.

Mrs. Browning

I am grateful for the way in which the Minister has responded to the debate.

Mr. Clarke

I appreciate that comment. This is a cross-party issue, and I know that both sides of the House would like to see progress made on it.