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Dr. Brand: New clause 10 or new clause 11--I would favour new clause 10 for the reasons that have been set out--would be essential should the Bill become law. It is essential that someone should review each case because the Bill, although very short, is extremely ambiguous. To me, it is extremely clear, but my clarity is different from the clarity expounded by the Bill's supporters. The Bill's proponents say that the Bill would not affect cases where doctors and nursing teams are reported to have acted responsibly in caring for patients.
11.30 am
The real discussion hinges around the Tony Bland case. The hon. Member for Bassetlaw (Mr. Ashton) said that the Bill would take us back to the position obtaining before the Bland judgment, but I think it would go further. The Bill does not differentiate between ordinary and extraordinary treatment--
Mr. Deputy Speaker: Order. I get the impression that the hon. Gentleman is not going to speak to the new clauses before the House. I remind him that this is not a Second Reading debate, and that he must direct his remarks specifically to the new clauses.
Dr. Brand: I am dealing with new clause 10, Mr. Deputy Speaker. The Bill's purpose is so ambiguous that we need a neutral body to determine whether a prosecution is covered in the way that the hon. Member for Congleton (Mrs. Winterton) intends, or whether it is a product of the drafting of the Bill. That is a profound difficulty, and new clause 10 would at least provide a safeguard to protect doctors who have acted appropriately.
I am sorry that new clause 48 was not selected for debate, as it would have clarified the extent of the Bill's intent or purpose. I am not debating new clause 48, Mr. Deputy Speaker, but it might have reduced the need for new clause 10. We need a person to take a view on the appropriateness of a prosecution. For the reasons already discussed, it is probably better that that person should be a senior officer in the Crown Prosecution Service.
I understand the thinking behind new clause 17, but I am uneasy about offering special privileges to any profession. The provision to protect patients, their carers and relatives is important, but once the evidence has been produced to warrant a prosecution--deemed to be in the public interest under new clause 10, if that is accepted--that prosecution should be conducted in public.
I shall use myself as an example of my concern that the police should get advice about the creation of a screening procedure against vexatious complaints. On Second Reading, I made some remarks to which one lady objected. She badgered the media and the Hampshire police until the police eventually issued a press statement that they were investigating her complaint. I do not believe that the police had screened the worthiness of the complaint that was made. No doubt, the lady felt very strongly about the issue--people do get very emotional about it--but her message on my answering machine, to the effect that she was out to destroy me and that I should be imprisoned, convinced me that she was not acting in the public interest, but wanted to get at me.
I have no objection to that, but I heard about the police investigation only when I was telephoned by a journalist who had received the statement from the Hampshire police. In fact, my son read about it first in Metro, the free news sheet. That is pretty shocking.
That example illustrates that there is a need for a screening procedure. The Crown Prosecution Service should be able to advise the police. Interestingly, the code of practice being revised by the CPS does not mention advising on how extensive an investigation should be before a prosecution is mounted.
Mr. Miller: I have done a lot of work on road deaths, and I very much agree with what the hon. Gentleman said about
the rights of families. However, the lady in the case involving the hon. Gentleman could have tipped off the press that she was going to make a complaint. A story could have been running before the police got involved. With or without the new clause, the hon. Gentleman would have suffered the same intrusion on his civil liberties.
Dr. Brand: On the Monday, I was contacted by a journalist who told me that she had heard a rumour that the Hampshire police were about to investigate me. I said that I had heard nothing about it, so thought that the story was only a rumour and did not pursue it. The fact that the Hampshire police confirmed that they had received a complaint and that they were investigating it created the story. Publicity cannot be stopped, but vexatious complaints can be screened earlier. In that way, the police and the CPS could decide whether a further investigation was helpful, and an appropriate use of resources.
New clause 10 is essential because we have not been reassured about the extent of the Bill or how it would affect established practice. My hon. Friend the Member for Colchester (Mr. Russell) spoke movingly about his daughter, and two little nephews of mine died under very similar circumstances. The life-support machines were an extraordinary means of keeping those children alive: switching them off resulted in their deaths.
That was the purpose of the action, because the continued existence of those babies was not deemed to be in their interest. The Bill would put doctors at risk of prosecution, so I would want a sensible, fairly senior person who could construe the legislation to make some sense of the situation.
Mrs. Ann Winterton: Although I may not be sufficiently senior or sensible for the hon. Gentleman, I believe that common sense dictates, and it is the intention of my Bill, that in such cases, the life-support machine would be turned off because the treatment was futile. He knows perfectly well that life-support machines are turned off only at the very end when the body is dying.
Mr. Miller: That is not in the Bill.
Mrs. Winterton: It does not need to be in the Bill. As treatment would be futile, the hon. Gentleman would still be able to turn off the machine. Only if his purpose was to kill the patient would it be unlawful.
Dr. Brand: That was a good illustrative intervention. Nowhere in the Bill is futility mentioned. The Bill is concerned with the termination of life.
Mrs. Winterton: It is present practice.
Dr. Brand: The Bill makes no mention of present practice. When I tried to test the provision in Committee by referring to different scenarios, I was told, "That will not be affected. It is present practice." The hon. Lady is trying to pick and choose from present practice without specifying in the Bill what is acceptable. That is no way of protecting patients or those who look after them.
Dr. Tonge: Does my hon. Friend agree that perhaps the nub of the problem is that, although the hon. Member for Congleton (Mrs. Winterton) may understand the purpose of her Bill, she does not fully appreciate its consequences?
Dr. Brand: I wish that I had put it as eloquently as that.
The Bill is supposed to clarify something, but I am afraid that it creates obfuscation. That is why we need new clause 10; equally, it is why we do not need the Bill.
Dr. Whitehead: I wish to speak to new clause 13, which is in my name. It is a short and simple clause that provides that the Bill
- shall give rise to liability in tort only.
The new clause involves the potential liability of doctors, or anyone else involved in the treatment of a patient, in circumstances where there may be doubt about what is in the patient's interests, and where not zealously pursuing a particular course of treatment could be regarded as having the purpose of terminating the patient's life. Therefore, if a doctor or anyone else involved with that medical treatment does not pursue it zealously, they could be liable to prosecution.
The problem with liability to prosecution under the Bill, as I understand it and as my hon. Friend the Member for Hendon (Mr. Dismore) made clear earlier, is that the Bill provides for only one sort of prosecution. A doctor or paramedic accused of an offence under the Bill would be prosecuted for murder. If they were found guilty, they would be liable to the penalties for murder, which are severe.
11.45 am
The hon. Member for Congleton (Mrs. Winterton) spoke about present practice. Juries are extremely concerned about the idea that a doctor or anyone else involved in looking after patients--often in difficult, trying and unfortunate circumstances--should be tried for murder. Having heard about the case of Dr. Moor, we could argue that juries are faced with a very different set of circumstances from what we understand, by common definition, to be murder, when the accused person defends himself by saying that he was acting in good faith and according to the best interests of the patient. They then have to decide whether that is truly the case or whether something happened that was not really in the best interests of the patient or whether the doctors overstepped the mark in respect of what should or should not have been done in terms of medical treatment. Is that strictly comparable to another case in which someone has shot their victim with a gun, clearly with the intention of killing them, and has obviously committed murder?
Juries ask themselves whether they can really proceed with a conviction when common sense tells them that the two sets of circumstances are very different indeed. It appears to be the case that, in certain circumstances, juries have refused to convict because they did not agree with the charge, even if it could be proved in legal terms that the doctor concerned had done something which had hastened the death of the patient, as they did not consider that the penalty should be the same as that for shooting someone in the head with a gun.
At first sight, there is a common-sense case for saying that we are dealing with issues that have a wide range of definition, but the Bill does not allow for that. In addition, the wording of the Bill does not follow that of other legislation--the Bill talks about "purpose" rather than "intention".
The hon. Member for Congleton said at a press conference on 18 January that she was not a vitalist--that is, someone who believes that medicine should be used to prolong life, whatever the circumstances. She has made it clear again this morning that she believes that doctors are entitled to take into account issues relating to the quality of life when deciding whether to withdraw or withhold treatment.
Logically, the hon. Lady must conceive of circumstances in which treatment that does not absolutely prolong life, or in which withholding a treatment and thereby shortening life, is acceptable and not a crime, and that someone who has taken such a decision should not face a charge of murder and prosecution through the courts.
The British Medical Association attempts to underline that point in its guidance. It defines the primary role of medical treatment as being
- to benefit the patient by restoring or maintaining the patient's health as far as possible, maximising benefit and minimising harm. If treatment fails, or ceases to give a net benefit to the patient (or if the patient has competently refused the treatment) that goal cannot be realised and the justification for providing the treatment is removed. Unless some other justification can be demonstrated, treatment that does not provide net benefit to the patient may, ethically and legally, be withheld or withdrawn and the goal of medicine should shift to the palliation of symptoms.
However, the problem can be seen when we read the Bill itself. It states:
- It shall be unlawful for any person responsible for the care of a patient to withdraw or withhold from the patient medical treatment or sustenance if his purpose or one of his purposes in doing so is to hasten or otherwise cause the death of the patient.
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