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Mr. Gerrard: Further on in section 18.3, the BMA guidelines say that
Mr. Deputy Speaker: Order. That intervention has nothing specifically to do with the new clauses. The hon. Gentleman is following an argument being made by the hon. Member for Oxford, West and Abingdon (Dr. Harris), but I do not have the greatest confidence that that argument is wholly relevant to the new clauses. The hon. Gentleman is hanging a Second Reading issue on to the text of the new clauses. I shall not allow that to go on for much longer.
Dr. Harris: I apologise if I have not have made clear the relevance, or if I have been unable to do so. I will not continue along that line.
If the Bill becomes law, we will not wish to see a rash of prosecutions in cases where that is not what the patient wanted. Even if a currently incompetent patient has--in a valid advance directive, for example--expressed a wish to see their suffering ended, or not to receive treatment in specific cases, it would be of major concern to society if all the details of that patient's treatment were brought before the court because prosecutions were allowed without the veto or the consent of a senior Government Law Officer. That is the wording of new clauses 10 and 11, and that is the relevance to the debate of the issue of relatives' competence.
Mr. Eric Pickles (Brentwood and Ongar): With regard to the new clauses, is not the hon. Gentleman really saying that doctors know best and that no one should question their judgment? Is it not a fact about British justice that a number of successful prosecutions have been brought by private individuals which have corrected great injustices? Why should this matter be different?
Dr. Harris: That is why I have problems with new clauses 10 and 11. I would rather not see the Bill become law than restrict the rights to private prosecution. However, time and again, we see cases in which treatment has been withdrawn from a patient--perhaps with the patient's consent--where the relatives have strongly objected. A case was mentioned in the House of Lords recently where a patient was consulted on whether or not they wished to have resuscitation withheld should they suffer a cardiac arrest, and the relatives had their disagreement raised in Parliament.
If the Bill becomes law, without the opinion of a senior Government Law Officer being sought, such a person will be able to prosecute when clearly it is the right of a competent patient to decide whether they want to end their
days on a ventilator--having been resuscitated, in a relatively futile way, for the last few days or weeks of life--or whether they wish to die with dignity.
Mr. Pickles: Surely that is a matter of evidence or defence, and not a reason why a prosecution should fall before it starts.
Dr. Harris: If a competent patient wishes not to have treatment--such as cardio-pulmonary resuscitation in the event of a cardiac arrest--and if the doctors pursue that line of approach in their clinical care, they should not be exposed to the dangers of prosecution from relatives or other parties.
The more interesting case is that of an incompetent patient--someone who may have had a serious stroke, for example--for whom there is little or no chance of any meaningful recovery, and little chance of any unmeaningful clinical recovery. In those cases, decisions are made by doctors, acting in the best interests of the patient, that it would be inappropriate when the patient suffers a cardiac arrest in hospital to be jumped on by a team of three doctors and have their chest opened for manual cardio-pulmonary resuscitation. Because of the speed at which these things happen, relatives may be concerned that they were not consulted and that not every action was taken to preserve the physical continuation of the heart function in the patient.
Without some sort of protection, we will see a rash of cases where relatives have not understood the situation; have been left out; or have not been kept up to date because of the fast-moving nature of events seek through legal or other means to question the views of the doctors.
I believe that I have drawn the attention of the House to issues relating to relatives and decisions taken in respect of the care of patients. The Bill will create difficulties for the clinical team, not just the doctors, in understanding whether they are likely to be prosecuted for acting in the best interests of an incompetent patient or for following the instructions of a competent patient.
Mr. Healey: New clause 15 was not covered in Committee and has barely been touched on today. My aim in tabling it was to be constructive. It is not designed, in the words of the hon. Member for Congleton (Mrs. Winterton), to wreck the Bill. It is an attempt to make a badly drafted Bill a little better. I am in the unusual position of speaking after, not before, the Bill's promoter, the Minister and the Opposition Front-Bench spokesman.
The new clause is necessary. Throughout our proceedings on Second Reading and in Committee, and in her briefings, the hon. Lady has asserted that the offence that she wants to create is murder, but it is not specified as such. My hon. Friend the Minister confirmed the point by saying that the new clause may not address the Government's deeper concerns about the Bill but is a helpful clarification along the lines intended by the Bill's drafters.
The hon. Member for Windsor (Mr. Trend), as he did in Committee, probed positively and constructively to try to improve his and the House's understanding of what lies behind the Bill. My hon. Friend the Member for Walthamstow (Mr. Gerrard) said that those of us who are unhappy with the Bill are not happy with the law as it
stands. I hope that both will welcome my hon. Friend the Minister's confirmation that the Government will continue to consider the issues, which are extremely difficult and distressing for the patients, families and staff involved.New clause 15 is designed to ensure that any trial under the Bill must be heard in the Crown court, not the magistrates court. There is a gap in the Bill, or, as my hon. Friend the Member for Hendon (Mr. Dismore) described it, a lacuna. He is a lawyer; I am not. I am grateful for his support.
The Bill creates a new offence, but its degree is not defined, no penalty is specified and there is no confirmation of how the judicial system should deal with it. The importance of specifying trial in a Crown court is based on the nature of the matters that the courts will have to consider and on the nature of the offence that the Bill creates. The matters that the House considers will form part of the court's consideration at whatever level a case reaches in the judicial system and that is directly relevant to the judgment we make on whether the Bill should specify how such a case should be handled. Those matters are also directly relevant to our judgment on whether such cases should be heard only in a Crown court, as provided in new clause 15.
The other factor in the House's assessment of the need for new clause 15 is the clarity of the Bill as it stands, and what it will be left to the courts to interpret in trying to deal with any case that may be brought under the legislation.
Mr. Dismore: The point that needs to be emphasised is that a trial for murder would almost certainly be heard by a High Court judge, who would be experienced in interpreting law, especially of a vague nature as is the case with this Bill. However, if the trial were to take place anywhere else, the only legal advice would be from the clerk to the court in the magistrates court or from the stipendiary magistrate--people who, while very competent, do not possess that specific high degree of skill.
Mr. Healey: My hon. Friend makes a clear and valuable point. The purpose behind new clause 15 is to clarify such matters, which are at present unspecified in the Bill. The clarity of the Bill's provisions is relevant to the judgment about whether it should specify how cases should be dealt with and at what level.
I wish to convince the hon. Member for Congleton and my hon. Friends that the Bill is too open to interpretation and too complex to be dealt with at any other level in the judicial system than trial by jury in the Crown court. It is also too important to be left unspecified--
Mr. Deputy Speaker: Order. The hon. Gentleman has now repeated himself four times. If he cannot get to the substance of his argument, I shall invoke the Standing Orders to cause him to desist from speaking altogether. He must speak to the substance of his new clause, not indulge in endless repetition.
Mr. Healey: Thank you, Mr. Deputy Speaker. The Bill is short and deceptively simple. At the core of what the courts will have to consider--and, therefore, the reason
for ensuring that cases must be decided by jury at a Crown court level--is the provision about the "purpose or purposes" of withdrawing or withholding medical treatment. That will be the principal focus of decisions about whether an action is lawful and of any proceedings. It therefore bears heavily on judgments about whether we should specify how cases should be handled.
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