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Mr. Grieve: The amendment tabled by the right hon. Member for Rother Valley (Mr. Barron) seeks to widen enormously the scope of the research clauses. On Second Reading, I said that those clauses were some of the most troublesome that the House had to consider. I appreciate that in the past, matters concerning research on an incapacitated patient who does not have the mental capacity to give consent have been conducted informally by the medical profession, usually with the consent of relatives. Nevertheless, there is something very stark about what happens when one reduces those informal procedures, which in my view were wrong, into a statutory form that, to my mind, remains ethically extremely troublesome.
The right hon. Gentleman has in a sense taken an extreme position—I hope that he does not mind my saying that, as it is right that he has done so—by putting forward the medical profession's view, which is essentially that if doctors think that an action is justified, and as long as it does not cause significant harm to an incapacitated person, they should be able to do it, with
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the Secretary of State being able to provide particular authorisations. I have to say that it is apparent that such a procedure would be in flagrant breach—I hope that the right hon. Gentleman does not mind my using that expression—of the provisions of the Council of Europe convention on human rights and biomedicine, which lays down strict guidelines on what is permissible in relation to an incapacitated patient: guidelines that the Government have not followed in their drafting of the Bill.
I hope that the right hon. Gentleman will excuse me when I say that I could not under any circumstances support new clause 3, and I certainly could not encourage any of my hon. Friends—notwithstanding that this is a matter for a free vote—to do likewise.
As I said in my intervention on the right hon. Gentleman, some of the anxieties that he expressed, especially about barrier nursing or conducting tests to determine the best way in which to handle a patient, are groundless. Even if the most rigorous research clauses were introduced, I do not believe that doctors or nurses should have any anxiety about the sort of test that exists for their safety when relating to patients—that is plainly in the patient's interest—or for deciding the best way in which to manage a patient. I hope that he can pass that reassurance back to those in the medical profession.
4.45 pm
Let me deal with the clause more generally. The clauses on research differ substantially from the European convention. The differences have been highlighted by the Joint Committee on Human Rights, which scrutinises Bills. It stated that, unless the wording is tightened up, there is a serious risk that the provisions will be found to be in breach of the convention. A Government response to that is awaited and I hope that, at this late stage of the Bill's passage through the House of Commons, the Minister will give some idea of the Government's view of those criticisms.
Let me consider amendments Nos. 43 and 44, which my hon. Friend the Member for Daventry (Mr. Boswell) and I tabled. I continue to have serious anxieties about the research clauses. There is an argument, which, doubtless, many people would try to avoid, that research can never be justified on an incapacitated patient unless one can show that it is directly for that patient's benefit. The fact that the research may be for the benefit of a wider section of society is arguably irrelevant. After all, if I am a person of full capacity and a doctor asks me whether I would be prepared to consent to tests, albeit not massively intrusive tests, which are not for my direct benefit but might benefit thousands of other people, as the law in this country currently stands—thank goodness—it is my right to say no. The idea that, if I were incapacitated, someone could make the decision for me is troubling.
The logical outcome of the argument is that all sorts of medical research may be closed off. The alternative approach is that the Government should simply rewrite the clauses and provide that people have to sign up in advance, as they do for organ donation, and state that they are prepared for such tests to be undertaken. It is a difficult issue but the approach in the Bill leaves me feeling uncomfortable.
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In an effort to tackle that, my hon. Friend the Member for Daventry and I tabled amendment No. 43 to clause 31(4), which states:
(a) have the potential to benefit P without imposing on P a burden that is disproportionate to the benefit to P, or"—
"(b) be intended to provide knowledge of the causes or treatment of, or of the care of persons affected by, the same or a similar condition."
Paragraph (b) is the cause of my concerns. Amendment No. 43 would add a paragraph (c), which would provide that the research must
Elsewhere in the Bill, "best interests" has been presented repeatedly as the major justification for allowing decisions to be made about a mentally incapacitated person. Why cannot that specifically be included in clause 31? I believe that I know what the Minister's answer is likely to be. It will or might seriously restrict the circumstances in which any testing or treatment could be undertaken. If that is the case, it may be necessary for hon. Members simply to accept it.
I remain troubled by a principle that allows experiments to be carried out on individuals to whom they are of no direct benefit. Our proposed subsection, on which I hope we will have an opportunity to vote, would provide extra protection.
The second amendment that I have tabled with my hon. Friend the Member for Daventry would amend clause 32(6), which deals with the consultation of carers. We seek to delete the reference to "P's deputy", because a deputy is not a suitable person to make that decision, and does not have the status or standing to do so. The Government have tabled amendments that attempt to take on board some of the anxieties and criticisms about the research clauses in the Bill. I note with satisfaction that the potential for going to court to circumvent the advice of close relatives has effectively been removed except in emergencies. I am very pleased indeed about that. The Minister will be aware of the contents of the report by the Joint Committee. At the moment, the wording of the relevant clauses does not correspond with that of Council of Europe convention so, as the Joint Committee highlighted, the Bill does not comply with the convention on human rights and biomedicine. We therefore need reassurance from the Government about how they will address the Joint Committee's concerns. If the Minister cannot do so this afternoon, I hope that she will send hon. Members and me a full response to the criticisms that have been made.
Returning to my main point, we may all think that research to prevent diseases and affliction in others is desirable, but we should be careful about using the incapacitated as our guinea pigs to achieve that outcome. I accept that this is a difficult ethical area, and in many cases it may be possible to find a way around it. The Bill institutionalises what has previously been done on the nod, but that does not mean that we should simply allow past procedures to continue, even if that is inconvenient. I hope that the Minister will respond positively to my proposals, because amendment No. 43 goes a long way towards ensuring that patients will
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not be subject to experimentation, however benign, that is of no benefit to them at all.
The Minister of State, Department of Health (Ms Rosie Winterton): I shall start by addressing the new clause tabled by my right hon. Friend the Member for Rother Valley (Mr. Barron). I have taken careful note of the points that he and the British Medical Association made, and the issue deserves serious consideration. I am sympathetic to the fact that doctors are often put in a difficult position when faced with the need for such testing. However, as other hon. Members have said, we have made the principle of best interest the cornerstone of the Bill, and I am afraid that it would be extremely difficult to accept a provision allowing P to be tested for a purpose that is not in his best interests. The BMA, understandably, has sought assurances that it would be possible to conduct a diagnostic test primarily of benefit to a family member in the case of genetic diseases, or perhaps to a nurse or doctor if a needlestick accident had occurred in P's treatment. That is the issue about which my right hon. Friend is particularly concerned, but I hope I can give him some reassurance here.
As I have said, it would be difficult to imagine a situation, for example, where someone with capacity—if there had been a needlestick injury in particular—could say that they did not want any such test carrying out. We would then have a different scenario for people without capacity. That is the difficulty in what are obviously difficult situations in themselves.
We believe that a proposal such as that tabled by my right hon. Friend is unnecessary, because the Bill will allow for acts whose primary purpose is to benefit a third party, provided that those acts are in P's best interests. I reassure the House that the interpretation of best interests could be broader than P's medical best interests. I can confirm that the Bill will not prevent a genetic test for a familial cancer, for example, that might not be essential to P's medical care but would provide considerable benefit to some other family member.
Similarly, HIV testing would be lawful if there were a needlestick injury to a nurse involved in P's care and if a timely diagnosis of HIV status would be in P's best interests, so that treatment could be started. There is the ability for a medical professional in those circumstances—if they reasonably think that a person might have HIV/AIDS or hepatitis C and that they might have been affected by it—to request a test so that treatment of P could start.
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