---

10 am

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

14 Apr 2000 : Column 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 favour. 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 eithernor 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

14 Apr 2000 : Column 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 favour 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 place

only 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, that

the 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 defence 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.

14 Apr 2000 : Column 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 defence is open to question.

---