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Mr. Cash: I had not intended to speak about new clause 3, but the more I read it, the more worried I become. Given the position of the right hon. Member for Rother Valley (Mr. Barron), I take it that he is proposing a measure that has been approved by the General Medical Council. [Interruption.] I am glad to know that that is not the case. New clause 3 is well drafted for the purpose for which it seems to be intended, so I wonder what its origins are.

Mr. Barron: The provision came to me through the British Medical Association, not the General Medical Council.

Mr. Cash: That reinforces my worry in many respects because the BMA is of course the trade union for the medical profession. Although I have already indicated the necessity to improve the GMC's procedures so that its self-regulatory processes work effectively within a statutory framework—many people, including Dame Janet Smith, who sat in judgment during the recent inquiry, clearly remain deeply concerned about that—the points that I am about to make must be carefully considered by the BMA. If we do not reach a conclusion today, I sincerely hope that another place will bear my points in mind.

As I said on a point of order about the shambles of the debate on new clauses 1 and 2, the House must be given adequate time after the Bill has returned from the House of Lords to consider such matters properly. We should not be constrained by an artificial programme motion that does not give us the time to do so. We should consider amendments for a full time on behalf of our electors, who are the reason why we are in the House. The shambles that we saw indicates—

Madam Deputy Speaker: Order. Will the hon. Gentleman direct his remarks to new clause 3 rather than what took place previously?

Mr. Cash: I hear what you say, Madam Deputy Speaker, and I shall abide by the generality of it. However, my point also relates to new clause 3. If we are to have a proper debate about the matter, I trust that we will also be able to consider it when the Bill returns from the House of Lords.

The Secretary of State would invoke a power by order to carry out the injunctions set out in new clause 3, so the rest of the Bill's provisions on statutory instruments would be applied. I am worried that the power would be incredibly wide because it could be used

It would thus apply to almost any circumstances that could be conceived.

The Secretary of State could, by such an order,

not some—

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That could include virtually anything that a doctor, consultant or similarly qualified person could do. Such a procedure might be not merely specific to, but in relation to, a person. That raises the question of who is a person. Does it mean, for example, an unborn child? The amendment describes the person as being "without capacity to consent". Of course an unborn child does not have capacity to consent. Of course, in certain circumstances, a person in severe medical trauma does not have capacity to consent. We covered that in the previous debate.

The amendment goes on to qualify the procedure as

What may or may not be for the person's benefit certainly would not include abortion.

4.30 pm

Mrs. Browning: Has my hon. Friend considered whether sterilisation would fall within the scope of the amendment? I can think of circumstances where someone might lack capacity and have a hereditary disease, and in case they ever became pregnant or made someone pregnant, it might be deemed better for them to be sterilised for the benefit of any children that might otherwise be born in the future?

Mr. Cash: Indeed. I should be grateful if the right hon. Member for Rother Valley could tell me what would not be included under the provisions of the new clause. On my reading of it, there is virtually nothing that would not be included.

The new clause continues with the words

The words "in the opinion of" mean in law that, for practical purposes, there is no means of challenging the basis upon which the Secretary of State arrives at that conclusion. The new clause states that the procedure

that is, the person without capacity to consent—

If that is presumed to mean that although not carried out for his benefit, the procedure could not cause him significant harm, and that that is intended to deal with the question of abortion, and to be of significant benefit to others, I would certainly take account of what the right hon. Gentleman says.

New clause 3 is enormously wide. I cannot see much that would be excluded from it. I would be happy to hear that it is not intended to apply to abortion, among other things. In the light of what is contained in the Bill, I am rather concerned about what will happen once these issues have been taken out of the arena of the common law and the conventions and ethics of the medical profession, and transformed through statute and codes of practice into legal rules, which are enforceable and would need to be adjudicated. I am worried that there may be an attempt, driven by the profession and/or by insurers, to make sure that the buck is passed, making doctors and others in the medical profession less accountable than they are at present.

There is an important question lurking in the back of my mind about all these matters. This is not intended as a criticism of a noble profession and the wonderful
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doctors, surgeons, consultants and so on, whom we know and trust. However, in the course of proceedings on the Bill, I detect a growing tendency that there is meant to be a change in the manner in which decisions will be adjudicated, just as, for example, we in the House have to form judgments on a daily basis about what we believe to be in the interests of our constituents. That is the duty that we have to discharge. Sometimes it is extremely difficult—in certain respects, it is difficult in the context of this Bill—particularly when conscience matters arise.

My final thought is that just as it is intrinsic to our duties to arrive at difficult decisions on our own responsibility, which is one of the reasons why our deliberations are not constrained as if this House were a court of law, so the ultimate responsibility and accountability of doctors and others in those professions depends upon their judgment of what is or is not in the interests of their patients, which is a matter of the highest faith and duty.

My hon. Friends the Members for Bournemouth, West (Sir John Butterfill) and for Tiverton and Honiton (Mrs. Browning) have referred to specific examples of clauses that depend on expressions such as "in the opinion of", and other examples include a case to which I shall return later in the debate. It is essential that we do not end up with broad-brush clauses, which I am sure are well-intentioned—I hope that they are well-intentioned—but carry grave problems of the kind that I have attempted to describe this afternoon.

Mr. Heath: I shall be brief. The right hon. Member for Rother Valley (Mr. Barron) may have detected the lukewarm response to his new clause. We should not decry his intention, but he has not been sufficiently clear on the arguments why the patient's best interests should be set aside in such a wide range of circumstances.

I shall not repeat points made by other hon. Members. I understand the right hon. Gentleman's point about diagnostic blood testing, but that case is already covered by the protection for the medical practitioner against any charge of assault or more serious harm. That is a clear example in which the interests of the individual are identical to the interests of the class—in diagnostic terms—of patients. For instance, it is not in an individual's interests to be barrier nursed as a precautionary measure simply because nobody knows whether they have a blood infection. It is possible to construct an argument in law on that basis, and if difficulties arise, we need a specific measure to deal with them.

In my view—I do not want to labour the point—new clause 3 covers an enormous width of provision by referring to any medical or surgical procedure. Hon. Members have discussed sterilisation, which clearly falls within those parameters. I venture to suggest that the point raised by my hon. Friend the Member for Cheadle (Mrs. Calton) on testing drugs would also fall within those parameters.

On transplant procedures, it would not cause a patient significant harm to lose one kidney, which happens all the time in familial relationships where that is the best match. Under new clause 3, could the
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Secretary of State require that a person should be operated on to remove a kidney for donation to another individual? It would certainly be of significant benefit to another person, but it would not cause the individual significant harm. No Secretary of State would make that assessment, but new clause 3 contains a width of provision that the House would be unwise to allow. The question has been put, "What possible procedures would not be included in that definition?" All I can think of are cosmetic surgical procedures, and even they could be said to be for the benefit of others. I hope that the right hon. Gentleman will not in any way resile from his intention but will realise that the new clause is wrongly drafted.

I want to raise one other issue in relation to Government amendment No. 7, although we have yet to hear the arguments for it and I do not wish to pre-empt them. It inserts into clause 31(2) the words,

which means that the subsection will read:

or causes or contributes to,

I entirely understand why the Government wish to add those words—clearly, there are conditions that are caused by damage rather than being the cause of damage, and both should be included. The difficulty lies in the fact that the subsection deals with both mind and brain. When something affects the brain as an organ, there is clear cause and effect, but if mind is included, anything that causes or contributes to mental trauma could fall within the scope of the provision.

That may not have been taken into account in the drafting procedure. I think that the drafters were trying to put right a lacuna in the existing wording, but by not recognising the difference between mind and brain they may accidentally have produced a rather wider sense to the subsection than they intended. I would welcome the Minister's comments on that specific point.

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