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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.

12.30 pm

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.

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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 accept 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

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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.

Division No. 168
[12.35 pm


AYES


Amess, David
Beggs, Roy
Beith, Rt Hon A J
Bell, Stuart (Middlesbrough)
Benton, Joe
Borrow, David
Bottomley, Peter (Worthing W)
Brady, Graham
Brazier, Julian
Breed, Colin
Brinton, Mrs Helen
Brooke, Rt Hon Peter
Burnett, John
Casale, Roger
Cash, William
Chapman, Sir Sydney
(Chipping Barnet)
Clappison, James
Clarke, Rt Hon Kenneth
(Rushcliffe)
Clifton-Brown, Geoffrey
Cook, Frank (Stockton N)
Cox, Tom
Crausby, David
Cunningham, Jim (Cov'try S)
Curtis-Thomas, Mrs Claire
Dawson, Hilton
Dobbin, Jim
Duncan Smith, Iain
Evans, Nigel
Faber, David
Fallon, Michael
Fearn, Ronnie
Flight, Howard
Forth, Rt Hon Eric
Foster, Michael Jabez (Hastings)
Fox, Dr Liam
Galloway, George
Gardiner, Barry
Gill, Christopher
Green, Damian
Grieve, Dominic
Hammond, Philip
Harris, Dr Evan
Heald, Oliver
Heath, David (Somerton & Frome)
Horam, John
Howarth, Gerald (Aldershot)
Iddon, Dr Brian
Johnson Smith,
Rt Hon Sir Geoffrey
Jones, Mrs Fiona (Newark)
Jones, Helen (Warrington N)
Kaufman, Rt Hon Gerald
Kilfoyle, Peter
King, Andy (Rugby & Kenilworth)
Lait, Mrs Jacqui
Lansley, Andrew
Lawrence, Mrs Jackie
Lewis, Dr Julian (New Forest E)
Loughton, Tim
Luff, Peter
McDonagh, Siobhain
McFall, John
Mackinlay, Andrew
Maclean, Rt Hon David
McNamara, Kevin
Mawhinney, Rt Hon Sir Brian
Mudie, George
Nicholls, Patrick
O'Hara, Eddie
Olner, Bill
Paice, James
Palmer, Dr Nick
Pollard, Kerry
Pound, Stephen
Prior, David
Randall, John
Robathan, Andrew
Robertson, Laurence
Roe, Mrs Marion (Broxbourne)
Rowlands, Ted
Russell, Bob (Colchester)
Shaw, Jonathan
Smith, Miss Geraldine
(Morecambe & Lunesdale)
Stunell, Andrew
Swayne, Desmond
Taylor, Ms Dari (Stockton S)
Thomas, Gareth R (Harrow W)
Thompson, William
Todd, Mark
Trend, Michael
Wardle, Charles
Wareing, Robert N
Waterson, Nigel
Webb, Steve
Whitney, Sir Raymond
Wilkinson, John
Winterton, Mrs Ann (Congleton)

Tellers for the Ayes:


Mr. Edward Leigh and
Rev. Martin Smyth.


NOES


Atkins, Charlotte
Brand, Dr Peter
Dismore, Andrew
Fitzpatrick, Jim
Fyfe, Maria
Harris, Dr Evan
Healey, John
Rendel, David
Sedgemore, Brian
Vis, Dr Rudi

Tellers for the Noes:


Mr. Joe Ashton and
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).

14 Apr 2000 : Column 644

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 triable only on indictment. The new clause makes that clearer because cases that are brought on indictment cannot be heard in the magistrates 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.

14 Apr 2000 : Column 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.


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