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Non-therapeutic procedures

   'The Secretary of State may by order applying either generally or in cases of a specified description authorise the carrying out of any medical or surgical procedure in relation to a person without capacity to consent which, although not carried out for his benefit, will in the opinion of the Secretary of State not cause him significant harm and be of significant benefit to others.'.— [Mr. Barron]

Brought up, and read the First time.

Mr. Kevin Barron (Rother Valley) (Lab): I beg to move, That the clause be read a Second time.

Madam Deputy Speaker (Sylvia Heal): With this it will be convenient to take the following: Government amendment No. 7.

Amendment No. 43, in page 17, line 24, at end insert—

'(c)   be in the best interests of P.'.

Government amendment Nos. 8 and 9.

Amendment No. 44, in page 18, line 18, leave out 'or is P's deputy.'.

Government amendments Nos. 10 to 14.

Mr. Barron: The House will be pleased to hear that I have not written to the Lord Chancellor or any bishops about this new clause. Hon. Members who served on the Standing Committee will be familiar with the arguments that I am about to make in respect of research. I remind my hon. Friend the Minister that she said in Committee:

I shall be interested to hear her response to what I have to say this afternoon.

The provision to include non-therapeutic procedures that will benefit other third parties was originally included in the 1995 report into mental incapacity by the Law Commission. The report said that an order made by the Secretary of State should stipulate whether a procedure required the prior approval of the court or, alternatively, a certificate from an independent medical practitioner. I understand that the Bill aims to protect the interests of the individual, especially when that person lacks the capacity to take decisions. New clause 3 has been proposed because of the worry in the medical profession that the Bill may inhibit those factors that contribute towards looking after the interests of health professionals.

The Bill does not tackle the question of minimally invasive interventions that are not directly in the best interests of the incapacitated person but which are not harmful and which provide a significant benefit for third parties. The British Medical Association has brought to
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my attention two examples of that. Although I have no direct connection with the BMA, I remind the House that I am a lay member of the General Medical Council. As a result, other associations in the UK occasionally talk to me about matters such as this.

The BMA is worried about testing health professionals for blood-borne diseases after they have suffered a needlestick injury when there are good reasons to think that the patient involved might have a condition such as HIV, for which prophylactic treatment is available. As the Bill is drafted, it would be illegal to take a blood sample for testing in circumstances where an individual is unconscious and unlikely to regain consciousness in the short term. A doctor who has received a needlestick injury cannot make an informed decision about ongoing treatment if a test cannot be undertaken to determine the patient's infection status. With my GMC hat on, the GMC's guidance to the profession on that issue, entitled "Serious Communicable Diseases", makes it clear that taking a blood sample for testing in such circumstances may leave a doctor open to criminal charges and that testing an existing sample without consent may also be challenged in the courts or before the GMC under its fitness to practise procedures.

The medical profession is worried about exactly how the Bill will affect doctors. The BMA has said that it would like the Bill to address the issue and allow doctors to take steps to protect their health and that of other professionals when such incidents occur.The BMA is pleased to note that provision is to be made in the Human Tissue Bill for regulations to allow genetic testing of a sample from an incapacitated adult for limited purposes other than their personal medical benefit. Clearly, in some circumstances information obtained from DNA analysis would be of huge benefit to other family members, and the BMA hopes that those circumstances will be covered by regulation. However, the BMA is concerned that this Bill makes no provision for samples to be taken for that purpose. It is not clear that taking blood for genetic testing for the benefit of a relative will satisfy the best interest test as a matter of law. In discussing the issue, the Human Genetics Commission said that

The BMA would like the issue to be clarified in the Bill.

When I raised the issue in Committee, my hon. Friend the Minister said that she would look at it, and I hope that she will say something further about it this afternoon. I know that individuals and organisations have wanted this legislation for more than a decade. Indeed, I support the Bill and the need to protect people who lack capacity when it comes to medical research. However, when a health professional has been put into a difficult situation, to say the least, after an accident, they would not be able to demand that a sample be taken on their behalf.

Mr. Cash : As a lay member of the GMC, the right hon. Gentleman will know that considerable concern was expressed in a report published only two days ago about the manner in which it carries out its functions. The matters that he raises could clearly give rise to questions of disciplinary action and procedures. Can he
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give us an assurance that the GMC will consider those issues in the course of applying the remedies required to put its procedures on to a proper footing?

Mr. Barron: There are some issues in the fifth report of the Shipman inquiry to which I take exception. In my five years on the GMC, I sat on fitness to practise committees for three years and I did not conclude that the GMC was soft on doctors. Nor was it the case that lay members felt differently about cases from the medical members of the committee. I hope that we will return to that issue in the future and I know that my hon. Friend the Minister will have discussions with the GMC about the implications of Dame Janet Smith's report. I would just say that in the past five years the GMC has had referred to it some 700 doctors, 500 of whom had findings against them on various levels of the fitness to practise procedures and 200 of whom were struck from the register. Those statistics do not suggest to me that the GMC is soft on doctors, so I dispute that point. Indeed, in its favour, Dame Janet did not say that the council had done anything wrong in 1976 when it was acting in the case of Dr. Harold Shipman. That was a bit before my time on the GMC—indeed, it was a bit before my time in the House.

Mrs. Patsy Calton (Cheadle) (LD) Will the right hon. Gentleman give way?

Mr. Barron: I shall give way, but I do not want to be distracted from the clauses.

Mrs. Calton rose—

Madam Deputy Speaker: Order. The right hon. Gentleman was reading my mind. We are actually debating new clause 3, so a brief reference was all I was hoping for. Is the hon. Lady's intervention on a different point?

Mrs. Calton: It is on a completely different point, Madam Deputy Speaker.

I am considerably worried about the scope that the new clause could give. Although I fully understand that the right hon. Member for Rother Valley (Mr. Barron) is talking about relatively trivial procedures, such as taking a blood sample for HIV or DNA testing, does he agree that authorising any medical or surgical procedure on a person could give scope for considerably more than that? It might involve drug testing or all sorts of things that would not, in any sense, be in the best interests of the person concerned.

Mr. Barron: I do not disagree; it would depend on the circumstances. The problem that I am raising is one that concerns health professionals. There are four clauses on research and several Government amendments in the group and I should like us to get on to them. The provisions, rightly, are for the protection of people in particular circumstances, but questions arise about those working with them and about incidents such as the one I described earlier. What would be done to protect the interests of health professionals such as doctors, nurses or others working in close proximity to the patient?
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