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Mrs. Ann Winterton: I must say, wryly, that I am immensely flattered that so much time, trouble, effort and energy has gone into drafting new clauses whose sole purpose is to wreck the Bill. Its opponents are filibustering and merely playing games. People outside the House will observe that and reach their own conclusions about the actions of those who oppose progress by such means. They will also observe that this is the second Friday on which progress on private Members' business has been thwarted.
My hon. Friend the Member for Windsor (Mr. Trend) pointed out that no substantive amendments were tabled in Committee, although, I hasten to add, I ensured that there was more than adequate time so to do. That backs up my point that everything that has been done today is intended to kill the Bill. I hope that people will note that.
Dr. Brand: Will the hon. Lady give way?
Mrs. Winterton: No, I do not intend to give way. I was very generous on Second Reading and in Committee, but, because of time pressure, I shall make only a few pertinent remarks.
On new clauses 10 and 11, it has been said many times that the Bill's aim is to restore the integrity of the law against purposeful killing. When a doctor is charged with killing a patient by committing an act, the consent of the Director of Public Prosecutions is not required. Why, then, should it be required if a doctor is charged with killing a patient by omission? The same is true of the Attorney-General. If the Bill becomes law, prosecutions will take place not under it, but under the common-law offence of murder.
In response to the personal point made against me on my views about capital punishment under specific circumstances and my support of pro-life causes and for life at its beginning and its end, I remind the House that common law has always upheld the inviolability of life, except in the administration of justice. Tony Bland had committed no crime and the intention was that he should be killed by the withdrawal of treatment.
On new clause 13, the Bill seeks to restore the criminal law's prohibition against purposeful killing, which existed before the Bland case judgment in 1993. In so doing, it would promote a patient's right not to be purposely killed, as described in article 2 of the European convention on human rights. Liability in tort is completely inadequate for such an offence. Killing by an act is not simply liable in tort, so why should killing by omission be so?
New clause 15 is unnecessary. The offence is murder, which is indictable, and the law should be consistent with that for murder by an act. On new clause 17, the law should be the same as if a person had been charged with murder by an act. Dr. Shipman and his victims were identified. Why should not those charged with purposeful killing by omission be similarly treated?
I want to move from the legal cat's cradle that has been created this morning to put a few salient points on record. Under the Bill, a patient's right to refuse treatment would remain exactly as at present. It would in no way become conditional on the doctor's total mindset, as has been suggested. In a recent letter to me, the Minister stated:
- I do not believe that doctors should under any circumstances be allowed intentionally to kill their patients, whether by action or omission, and they are not allowed to do so under the present law.
12.15 pm
It has been claimed this morning that the concept of purpose includes foresight. That calls into question the principle of double effect. Neither in law nor in common sense is there the slightest reason for saying that purpose includes foresight. If the Bill had used the term "intent", there would have been some basis in law--though none in common sense--for including foresight.
The hon. Member for Richmond Park (Dr. Tonge) claimed that, under the Bill, a doctor's knowledge that a patient's life would be shortened by his action in withholding treatment would make such an action unlawful. The basis of the Bill is that a doctor who decides to withhold treatment from a patient on the ground that it would be excessively burdensome or futile has no purpose of shortening life, even if he foresees that the withholding will have that effect. The good effect is release from burdensome treatment; the detrimental effect is death. The doctor must not have any purpose of causing death: I hope that that is clear.
I do not wish to delay the House further. As most of the other points that have been raised were answered fully on Second Reading and in Committee, I merely ask the House to vote against the new clauses in due course. The simple purpose of the Bill is to restore the integrity of the law to pre-1993, so that it is unlawful for a doctor to have the purpose of killing a patient by an action of omission. That would bring the law into line with the present law, under which it is unlawful for a doctor to kill a patient purposefully by an act of commission.
The Parliamentary Under-Secretary of State for Health (Yvette Cooper): I had planned to listen to the speeches of all who have tabled new clauses and amendments before responding, but I will address my comments to the new clauses under discussion.
The five new clauses raise some of the concerns about the drafting of the Bill that the Government have identified throughout our debates. I have made our concerns known, and have pointed out that, as drafted, the Bill will not achieve the aims of the hon. Member for Congleton (Mrs. Winterton). I do not believe that the new clauses resolve those concerns; while some are helpful, others raise more questions than they answer. I want to spell out the Government's response to those new clauses, but first I must put on record the Government's complete and continued opposition to euthanasia--to the intentional taking of life, even with merciful motives or at the patient's request. That is, and will remain, illegal.
New clauses 10 and 11 highlight what the Government consider to be an important drafting flaw in the Bill. They raise the question of who should decide whether a
prosecution should take place--the Director of Public Prosecutions, in the case of new clause 10, or the Attorney General, in the case of new clause 11.
Mr. Trend: The Minister said that the Government's definition of euthanasia was the intentional removal of life. In the Bland case, the Law Lords all agreed on that point. Lord Lowry, for example, said that
- the intention to bring about the patient's death is there.
Yvette Cooper: I shall attempt to answer the hon. Gentleman's question, and in doing so also to answer the question raised by the hon. Member for Congleton.
To withdraw available treatment that is in the best interests of the patient when the doctor has a duty of care and when the patient has not refused such treatment is unlawful. In the Bland case, the question at issue was what was in the best interests of the patient. That is why current case law depends on what is in the best interests of the patient, whereas the Bill would instead shift the focus on to the purpose or one of the purposes of the doctor.
New clauses 10 and 11 deal with who should decide whether to prosecute. As the Bill stands, it does not say that anyone--either the Director of Public Prosecutions or the Attorney-General--should make the decision to prosecute, and it does not make it clear whether to prosecute at all, because it does not provide for an offence. It says that to withdraw or withhold medical treatment or sustenance if the purpose or one of the purposes is to hasten or cause death "shall be unlawful", but it does not say that it is an offence. Had it specified that it was an offence, it would have brought the Bill clearly within the remit of the criminal law. Without those words, it remains unclear what type of prosecution could be brought under this legislation, if any, and what sanctions could be applied, giving rise to many of the questions raised around these new clauses.
The issue of sanctions and penalties is the subject of the next group of amendments, so I shall not deal with it now. The issue of whether an offence has been committed, and therefore what type of prosecution could be brought and who should make the decision about whether to bring it, is extremely important.
The decision facing the DPP or the Attorney-General would be what kind of offence had been committed, and, in the absence of a clear statement that an offence had been committed, whether to prosecute under the criminal law.
New clauses 10 and 11 ask the House to choose between the DPP and the Attorney-General, or to leave the matter to the Crown Prosecution Service, as in the Bill as drafted. At the moment, the question of who should make a decision under particular laws is extremely complex. We cannot look to any Act of Parliament to determine which prosecutions should require the prior consent of the Attorney-General. Where such consent is required, the requirement is set out in the statute dealing with the offence. Although a wide range of crimes require the Attorney-General's prior consent to prosecution, most offences do not need his consent or that of the DPP.
Most decisions to prosecute are made by the Crown Prosecution Service, which must apply a dual test. First, it must decide whether there is sufficient evidence to mount a prosecution, and if it is satisfied about that, it must decide whether it is in the public interest for a prosecution to be launched. Those decisions are made by Crown prosecutors throughout the land, day in, day out. That would be the status of the Bill without either new clause 10 or new clause 11.
The Law Commission has considered this issue in great detail, and has pointed out that there are diverse areas where the Attorney-General's consent is currently required by statute, but there seems to be little rhyme or reason why his consent is required in some cases and not in others. The Attorney-General's consent is required for prosecutions under legislation ranging from the Biological Weapons Act 1974, to the Aviation Security Act 1982, to the Theatres Act 1968. It is hard to see a specific thread running through those Acts that could provide guidance for the House on whether the Attorney-General should pronounce on cases such as these.
Equally, the cases for which the DPP needs to give consent are extremely varied, ranging from the Agricultural Land (Removal of Surplus Soil) Act 1953, the Animals (Scientific Procedures) Act 1986, to the Charities Act 1985 to the Gas Act 1986. That means that there is no coherent system for the House to apply in choosing between the new clauses. As a result, there is good reason to be extremely cautious about introducing and accepting either new clause 10 or 11.
When the Law Commission considered the matter in 1997, it issued a consultation paper called "Criminal Law: Consents to Prosecution." It runs to more than 100 pages. I confess that I have not read it, but it make some important points. The commission notes that, where consent is required, it is often impossible to find any rationale for why that consent should be applied. It points out that one of the consequences of requiring consent, either of the Attorney-General or of the DPP, is that it will provide a hurdle to private prosecutions. Hon. Members will know that private prosecutions are brought by private individuals, not by the prosecuting authorities. The new clauses would provide hurdles for private prosecutions under the Bill. I understand supporters of the new clause have exactly that issue in mind.
The commission's view was that the right to bring a private prosecution fulfils an extremely useful function and should be circumscribed by consent provisions only where there is a very good reason for doing so. It concluded that consent provision is justified in narrow circumstances: where, for example, an offence may involve national security or have some other international element.
The commission set out guiding principles for determining whether consent provision should attach to any particular offence, which may be useful for the House in determining whether to support new clauses 10 or 11. It concluded that it is justifiable to include consent requirements only in three categories of case. It is not clear that the Bill falls into any of those categories. That raises doubt about the acceptability of either new clause.
The commission recommends that the consent provisions should be used to control prosecution in each of only three categories: first, where it is very likely that a defendant will reasonably contend that prosecution for
a particular offence would violate his or her convention rights; secondly, where the issues involve national security, or have some international element--offences would be regarded as involving an international element if they were about the international obligations of the state, measures to combat terrorism, measures to introduce response to international conflict, or had some bearing on international relations; and thirdly, where offences create a high risk that the right of private prosecution will be abused and the institution of proceedings will cause the defendant irreparable harm.The commission rejected the idea that consent requirements should be used to prevent prosecutions where there were problems about evidential weakness, imprecise offences, offences attracting vexatious and trivial prosecutions, and cases that failed to take account of mitigating factors.
The commission specifically considered the position of doctors and manslaughter and whether consent requirements should be used to control prosecutions of individuals whose working lives are likely to be substantially damaged if prosecuted, even if they are subsequently acquitted. It concluded that those are not cases where the prosecution should be controlled by a consent requirement.
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