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Mr. Miller: What is my hon. Friend's response to the argument of my hon. Friend the Member for Hendon (Mr. Dismore)--that the Attorney-General is potentially subject to political interference? Does he think that that produces a risk if there are not checks and balances in the clause?
Mr. Gerrard: I understand my hon. Friend's point, and I will come to that later. There is a question in terms of consent on prosecution, and whether that consent should be a matter for the Attorney-General or the Director of Public Prosecutions. That is the essential difference between the argument of my hon. Friend the Member for Hendon (Mr. Dismore) and my new clause. In many ways, the reasons that we are putting forward for the new clauses coincide. We want some control over who initiates prosecutions, but we have taken a different view on that. Our intent with the two new clauses is essentially the same, and the relatively minor difference is in terms of the mechanism that ought to be adopted.
Dr. Whitehead: My hon. Friend says that the intent of the two clauses is the same. Would he say that the purpose is also the same?
Mr. Gerrard: That is an interesting intervention, which takes us into the argument of the meaning of purpose and the meaning of intent. Our purposes may be the same, although I am not sure that that would always be the case.
This is a sensitive area concerning a radical change in the law. We must be sure that any prosecutions that take place are in the public interest, given the likely effect of publicity in what are likely to be high-profile cases. The effect on the career of the doctor, nurse or carer charged will be obvious but, as my hon. Friend the Member for Bassetlaw has explained, the effects of these cases on the patient and the family should never be forgotten.
This week, I received a distressing letter from a constituent whose son had committed suicide. The family were dreadfully distressed by the press coverage. The cases to which the Bill applies will obviously get publicity. I support new clause 17, which refers specifically to that. In the case in my constituency, the siblings discovered through the coverage the truth about their brother's death, which was extremely distressing.
Such publicity could occur regardless of the involvement of the Attorney-General, but the prevention of vexatious or frivolous prosecutions would moderate it. No one, regardless of their attitude to the Bill, would welcome vexatious prosecutions, which would quickly bring the law into disrepute. None of us wants that to happen.
My hon. Friend the Member for Bassetlaw said that one of the Bill's aims was to put doctors in fear of prosecution. It is rather harsh to say that that is an aim, but it would certainly be an inevitable consequence of the Bill as it stands. I tabled new clause 11 to allow doctors to feel that there is sufficient safeguard against vexatious prosecution.
In recent years, there has been a move towards more litigation in the health service. More people now consider taking action against doctors and we are moving, perhaps unfortunately, towards the position in the United States, where many doctors are constantly concerned about the possibility of legal action against them. I would be worried about doing anything to our law that increased that fear or that possibility. I do not argue for one moment that doctors should be free from the fear of prosecution if they act negligently or against the interests of their patients, but that is not what the Bill is about.
If doctors are in constant fear of prosecution, that will have a detrimental effect on their relations with their patients.
Charlotte Atkins (Staffordshire, Moorlands): Does my hon. Friend agree that, in the United States, legal action is usually intended to encourage doctors to intervene--often against the interests of the patient--whereas the Bill is about doctors not intervening to continue people's lives?
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Mr. Gerrard: That is an important point. I am not a doctor, but I do not believe that clinical judgments are necessarily objective. There will be disagreements between doctors about whether one should intervene in given circumstances. My hon. Friend is absolutely right that the pressure will be towards intervention, because the failure to intervene will carry with it the risk of prosecution. That is the fundamental effect of the Bill as it stands. It reverses the current legal situation, whereby the court's primary concern is what is in the best interests of the patient. The Bill invites us to make judgments on the basis of what the doctor, the carer or the nurse has done. That is why we need the safeguards in new clause 11.
Much more attention is being given these days to the rights of patients to be involved and to have as much information as possible about their treatment. How openly will doctors discuss with patients and their families what they might or might not do if at the back of their mind there is the fear of prosecution for deciding not to intervene or to withdraw artificial sustenance. These are complex issues, and the best decisions are taken when there is the maximum trust between doctors, patients and families. The possibility of prosecution will affect the atmosphere of trust and bad decisions could result.
Dr. Iddon: If a doctor is following best practice by consulting the whole medical team, the patient--if possible--and the relatives, there will be no prosecution under the Bill, but yesterday's evidence from Age Concern showed that people are writing "555" on case notes without such consultation, and that is bad practice. The Bill is aimed at a small minority of doctors who are not following best practice.
Mr. Gerrard: I would certainly deprecate the practice of writing notes on files without consultation--that is
against best practice--but however much one talks to families, there is always the possibility of people changing their view after the patient has died. Families might say that the doctor told them that things would be all right if he took a certain course of action, but that proved not to be the case. We have all seen--
Mr. Deputy Speaker: Order. The hon. Gentleman is straying into a Second Reading debate. He must relate his remarks specifically to the new clauses under consideration.
Mr. Gerrard: I apologise, Mr. Deputy Speaker. I was trying to respond to an intervention and had not originally intended to stray down that line.
The rights of patients are critical and will be affected if doctors fear unreasonable prosecution. Probably most of the people I have known who have lived with a terminal illness have had AIDS. As a member of the all-party AIDS group, I have come to know many people living with HIV, and others with an AIDS diagnosis. I have listened to what such people say about how they should be treated when they reach certain points in the illness.
One person who spoke at the hearings held by the all-party group said that he had left instructions that if he entered a persistent vegetative state, he did not want to be maintained in that state. He was very clear on that point. If a doctor follows that instruction, would he or she be in fear of prosecution under the Bill?
Mrs. Ann Winterton (Congleton): That point was raised several times on Second Reading and in Committee and the law on that practice would not be affected in any way by my Bill.
Mr. Gerrard: I have heard that opinion expressed, but I have also heard exactly the contrary opinion expressed. The BMA think that the Bill will make a difference, and it represents the people who will have to operate under the law. I am always wary, as a non-lawyer, of being so certain of my opinion of what effect a Bill will have, especially if a lawyer tells me that it will have the opposite effect. We should listen to the BMA's views on that point.
I was asked why my new clause applies to the Attorney-General rather than the Director of Public Prosecutions. It is true that the situation is confused at the moment, with the Attorney-General granting some consents and the DPP granting others. The officeholder is specified in the statute creating the offence, and that is why we have ended up in confusion. No overview has been taken and the approach has been piecemeal. Some Acts have contained provision for decision by the Attorney-General and some for decision by the DPP, and that confusion continues with new clauses 10 and 11.
The Attorney-General has a duty to consider the general circumstances of the case and to see whether he thinks that any of the provisions of the Act can be used against the defendant. If the Attorney-General believes that they can, he can give his consent in wide terms for the prosecution to take place. It is assumed that the Attorney-General will have made the necessary inquiries before he gives consent.
I understand the argument advanced by my hon. Friend the Member for Hendon that the Attorney-General has a political as well as a legal function, but my concern about his suggestion that the DPP should decide is about seniority. As my hon. Friend accepted, at the moment if a decision is taken by the DPP it can be taken at a relatively low level in the DPP's office, whereas if the Attorney-General takes the decision it is taken at a senior level by someone who is an experienced Law Officer. I certainly cannot recall any cases in which the judgment of the Attorney General on a matter of law has been questioned.
My hon. Friend suggested that the situation should be changed. The Law Commission has considered that and concluded that the right to a private prosecution is a useful function and that we should be careful about circumscribing that right. Indeed, where it is circumscribed, the decision should be taken at a high level. The Law Commission suggested a review of the current position across the law as a whole, not just in individual Bills, to decide which cases should go to the DPP and which to the Attorney-General, at what level the decisions should be taken, and what safeguards should be introduced. At the moment, the safeguard that my hon. Friend suggested--that the decision must be taken at a high level within the DPP's office--does not exist. It is still possible for a decision to be taken at a relatively low level, and that is why my new clause takes a different approach.
The reasons behind the new clauses are very similar, and my hon. Friend and I approach the issue from a similar point of view. We agree about the need for safeguards, but we differ about the mechanism. My reason for preferring the decision to be be taken by the Attorney-General is, as I have said, seniority. However, I realise that my hon. Friend's clause is first in the group, and we will probably not have a Division on my new clause because his will have been passed. I hope so, because I certainly want a safeguard to be added to the Bill. Although I would prefer my new clause, I would rather have my hon. Friend's than no safeguard at all.
New clause 17 concerns publicity. Safeguards on the publicity that can be given to cases that might be covered by the Bill are needed for the doctor, nurse or carer whose career might be affected. We are all aware of the possible effects of a prosecution, whether eventually successful or not. The fact that someone has been prosecuted can have serious effects on them. However, safeguards are also important for patients and their families for whom identification from a newspaper report might cause problems at work or with friends and other family members. The safeguards in new clause 17 would be very important if the Bill became law.
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