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Mr. Miller: I am grateful to the hon. Gentleman. I recognise his expertise. Perhaps we can talk about my specific complaint outside the Chamber. It would be inappropriate to raise it here.
The category of person who needs to have the maximum protection in some publicity-based clause is the family. As I said in an intervention on the Under-Secretary, my hon. Friend the Member for Pontefract and Castleford (Yvette Cooper), it is outrageous that, when deaths occur, the courts--it may be coroners courts or criminal courts--do not adequately take into account the rights of bereaved families either to speak in the various hearings, or to exercise some control over the publicity surrounding the death of their loved one.
I am extremely nervous about the fact that new clause 10 seems to concentrate almost entirely on the accused person and the rights surrounding that person. We need to look again at that principle. I am yet to be convinced by the argument of my hon. Friend the Member for Hendon that the new clause can stand up to examination.
As I have said, I do not believe that new clauses 10 and 11 can be incorporated into the Bill. New clause 15 should be. It is simply axiomatic and so not possible to ignore, as the hon. Member for Congleton suggests. I remain neutral on the tort issue, which is raised in new clause 13.
The new clause dealing with publicity is all right as far as it goes, but it is far from complete. Much more work needs to be done to separate the legitimate rights of the three categories of people: the accused, the whistleblower and the family.
I am grateful to have been called in what is a difficult debate.
Mr. Gerrard: Will my hon. Friend give way?
Mr. Miller: No. I will finish now.
I urge colleagues on both sides of the debate to try to use some of the arguments that have been advanced to bring the two sides together, rather than to allow them to polarise, as that would be immensely damaging.
Dr. Harris: I declare an interest, which I mentioned earlier: I am a member of the BMA medical ethics committee, although I do not speak directly on its behalf. However, much of what I say comes from its deliberations. I am also a former hospital doctor, so I have been involved in the care of critically ill patients in hospital not competent to give their consent or approval to decisions taken in their best interests by the clinical team, and of patients who fall potentially under the remit of the Bland judgment.
I do not intend to detain the House, as I should like the debate to make progress. I intend to abstain on procedural matters where I do not support the proposal. By registering an abstention, I count as one of the 100 required to have a closure. The hon. Member for Congleton (Mrs. Winterton) knows that I was one of the 96 in the Division on the closure motion earlier, although I have serious concerns about the Bill.
I have some sympathy with the motives behind new clauses 10 and 11, despite the reduction in the access to justice--the suggestion that private prosecutions should not be allowed to proceed without the approval of a Government Law Officer. My sympathy is based on an appreciation of the difficulties in understanding the relatives' role in end-of-life issues. If the new clauses were not accepted and the Bill were enacted, there could
well be prosecutions by people concerned about how their relative had been treated, perhaps because they did not agree with the decision made, or felt left out of discussions on it. New clause 17 deals with publicity in such cases and, as the Minister said, the patient's right to confidentiality.Relatives have less status than one might think in end-of-life issues. They may well not be consulted in such decisions, and they certainly do not have a veto over them. The seeming lack of consultation with relatives, and their inability to veto decisions and to dictate how treatment should proceed, often leads to complaints, and could, if a Bill such as this were passed, even lead to prosecutions. I think that that is the reasoning behind new clauses 10 and 11.
Another point, which I shall develop later, is how that issue relates to decisions to withhold treatments such as resuscitation, which would clearly be covered by the Bill. In such cases, if new clauses 10 and 11 were not accepted, relatives could well be concerned and make complaints. Additionally in those cases, without the provisions of new clause 17, patient confidentiality could also be threatened. However, I agree with the Minister that the provisions of new clause 17 raise wider issues and cannot be dealt with in a short debate.
Competent patients are those who are able to say which treatments they wish to accept or refuse, and relatives--even with the best of motives--cannot gainsay those wishes or even add their hap'orth on them. As far as possible, clinical care and medical treatment recognise the patient's autonomy in saying which treatments they wish to accept or refuse. In cases involving competent patients, in law and in ethics, there is no role for relatives to intervene in the doctor-patient relationship.
Charlotte Atkins: I should like some clarification on precisely that point. The hon. Gentleman has mentioned cases involving competent adults, but where does competence lie in cases involving children? I think that all hon. Members would agree that, very often, children suffering from terminal illness are old for their years. In such cases, although they may be minors, they clearly have a distinct view on how their treatment should proceed and on whether it should proceed.
Dr. Harris: The hon. Lady raises an interesting issue, and I should be interested in discussing it with her outside the Chamber. I have promised that my remarks would be short and to the point of the new clauses. It would be difficult to address the issue now, but I refer her to the BMA's guidelines, which deal not only with the end-of-life issue but with contraception and consent to treatment generally.
As I said, relatives have no role in cases involving competent patients. I think that it would be unethical to allow the wishes of a competent and adult patient to be overruled by those of another party. I think that the hon. Member for Congleton realises the concern that would be caused by allowing such a practice. Even in planning treatment for patients who are not competent to give consent--
Mr. Deputy Speaker: Order. Although the hon. Gentleman has made a glancing reference to two of the new clauses in this group, I cannot make the same
connection between the new clauses and his subsequent remarks. I do not understand how his comments relate to whether the
- "prior consent of the Director of Public Prosecution"
1.45 pm
Dr. Harris: I apologise for not making that clear, Mr. Deputy Speaker. One of the reasons behind new clauses 10 and 11 is to ensure that private prosecutions cannot be brought without the consent of a Government Law Officer with regard to all the facts of the case, partly because there is a feeling--reflected in some of the newspaper coverage of recent issues--that many relatives feel left out and hurt by decisions that have been made on end-of-life issues. Without the protection of a senior Government Law Officer judging the case and deciding whether a prosecution is worth while, there could be several attempts to prosecute on decisions to withhold treatment, based on a false premise that, even for incompetent patients, relatives should have a say in, or even a veto over, clinical decisions. I was coming on to say, if I am allowed, why that is not the case. It is important that there should be a bar on a possible series of prosecutions of doctors by relatives who have been left out of the process.
New clause 17 relates to publicity about such cases and how a patient's right to confidentiality can be preserved while actions around end-of-life issues are taking place. We have heard examples from the Minister and others about patients with HIV who do not necessarily want their relatives to know the reasons for their condition. If there was not a bar on prosecutions or the reporting of actions by relatives in ignorance of the clinical conditions--such a bar being the advice and consent of a senior Government Law Officer--we would be in peril of threatening patient confidentiality.
It is important to set out the justification for new clauses 10 and 11 regarding relatives' rights in providing consent--or not--for patients without consent. Section 18.3 of the BMA guidelines say that for an incompetent patient
- The views of people close to an adult patient carry no legal weight. . . . Regardless of their lack of legal authority, the views of those close to an adult patient can be of considerable value in helping clarify what the patient would have considered to be beneficial.
- It is important to be clear, however, that the information sought--
- relates to any views the patient expressed when competent, which might help to ascertain what he or she would have wanted in these circumstances, as opposed to what those consulted would like for the patient or what they would want for themselves if they were in the same situation.
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