---

14 Apr 2000 : Column 603

House of Commons

Friday 14 April 2000

The House met at half-past Nine o'clock

PRAYERS

[Madam Speaker in the Chair]

Orders of the Day

Medical Treatment (Prevention of Euthanasia) Bill

As amended in the Standing Committee, considered.

New Clause 10

Consent of the Director of Public Prosecutions

'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

Mr. Andrew Dismore (Hendon): I beg to move, That the clause be read a Second time.

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 defence 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

14 Apr 2000 : Column 604

because it is an issue in which I 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 Longmore 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 Defence 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,

14 Apr 2000 : Column 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--

citing

the absence of any evidence that the working lives of doctors . . . have been substantially damaged

so 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 to

pursue 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 was

to 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.

14 Apr 2000 : Column 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 with

a 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 that

no 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 Rozenberg, who said

that 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.

---