Mr James Paice (South East Cambridgeshire, Conservative)

I beg to move amendment No. 101, in page 44, line 23, at end insert—

'(iii) if the medical practitioner who for the time being has any responsibility for the clinical care of the person concerned objects to the request.'.

I should say first that we warmly welcome this part of the Bill. I do not want there to be any doubt about that. Many hon. Members will have been present in the Chamber on Second Reading, when my right hon. Friend the Member for Horsham (Mr. Maude) spoke passionately about the issue. The Minister has been in long discussions with him. We entirely support the proposition in the clause that if people are incapable of consenting to having a sample taken, that should not necessarily prevent a sample from being taken. My right hon. Friend referred to a case, and I know of others. My hon. Friend the Member for Tiverton and Honiton (Mrs. Browning) has been involved, as has my hon. Friend the Member for Buckingham (Mr. Bercow), in cases in which people who self-evidently have a responsibility for causing an accident, for example, have been unconscious in hospital and blood samples cannot be taken. I do not want to say something that cannot be proven, but it might be argued that the guilty have gone unpunished because it has not been possible to collect the evidence.

We entirely support the clause. However, I am sure that I am not the only hon. Member to have received from the British Medical Association details of some concerns on the subject. I tabled the amendment simply to suggest that the medical practitioner in charge of the patient at any one time should have the right to object to the request for a sample to be taken on the basis that he or she believes that it would be deleterious to the patient's condition.

The amendment is not intended to undermine the purpose of the clause. It would simply allow the medical professionals to have a say in the matter.

The BMA said that it

''is concerned that the operation of the clause is dependent upon a police constable assessing that a person's incapacity is attributable to medical reasons.''

It goes on to ask how a constable who is not medically trained could

''differentiate between an incapacity caused by concussion, or by shock, or by drink or drugs or a pre-existing medical condition''.

I understand that, under section 9 of the Road Traffic Act 1988, provision is made to protect a person who is a patient at a hospital from having to provide a specimen of breath or blood for a laboratory test, unless the medical practitioner in charge of his case does not object. A medical practitioner might object if he considers that to provide a specimen would be prejudicial to the care and treatment of the patient.

That is a reasonable position to adopt. Our amendment would extend the protection to the care and treatment of a person from the moment that he or she comes under the care of any member of the health team, including the ambulance and paramedic services, and any health care professional who assists in either a voluntary or an official capacity.

Obviously, whatever has happened, the health of the individual is paramount. It seems sensible that the individual should be protected by the medical practitioner. The Minister may say that the term ''medical practitioner'' is wrong and that it should have been ''health care professional''. I am more than happy to accept that the amendment may be deficient technically, but we believe that a medical professional should be able to say, ''No, you cannot take that sample because it could prejudice the health interests of the patient''.

Mr John Denham (Minister of State (Police, Courts and Drugs), Home Office; Southampton, Itchen, Labour)

The amendment would protect a person who is unconscious after an accident by providing that a constable cannot ask for a blood specimen to be taken if the medical practitioner who has clinical care of the person objects. I can reassure the hon. Gentleman by saying that reflects the intention of the Bill. The amendment is not necessary. He had advantage over me by referring to a particular communication from the BMA, which I have not received.

I wish to make it clear, however, that the clause only empowers a medical practitioner to take a specimen. It does not require him to do so. It allows the individual practitioner at his discretion to refuse the police request, for example, if he thought that taking a specimen could be detrimental to the patient's health or if his ethical beliefs would not allow him to do so. It is worth saying, incidentally in relation to our earlier discussion, that the clause does not allow a nurse to take specimens in such cases. We have not extended the role to other registered health care professionals, which was a deliberate act in view of ethnical considerations and the likely medical condition of the patient. To reiterate, the amendments to the Road Traffic Act 1988 introduced under clause 50(1) make it lawful, but not compulsory, for a medical practitioner to take a specimen when requested, if he thinks fit.

Mr James Paice (South East Cambridgeshire, Conservative)

I am grateful to the Minister for his explanation, but I am not yet convinced of his argument. Clause 50(2)(a) states that a request

''shall not be made to a medical practitioner who for the time being has any responsibility (apart from the request) for the clinical care of the person concerned''.

Although the hon. Gentleman said that the practitioner to whom the request was made may decline to do so, it seems self-evident that that person will be a different individual from the medical practitioner who is in clinical charge of the patient. He or she cannot be asked to take a sample, but somebody else can. The other person may decline to do it, but my point is that the person in charge of the patient should take the ultimate decision.

Mr John Denham (Minister of State (Police, Courts and Drugs), Home Office; Southampton, Itchen, Labour)

Our intention is that if the practitioner who was responsible for the clinical care of the patient objected, it would not be fitting for another medical practitioner to say, none the less, ''I am overruling your judgment in this case.'' That could cause ethical problems. I do not believe that a sample would be taken under the Bill's provisions against the objections of the practitioner with clinical care. The intention behind the amendment has been addressed.

I do not have a copy of the specific BMA letter. I understood that the BMA was content with the Bill because we have held lengthy discussions with it about medical ethics. I give the hon. Gentleman an undertaking that I shall examine the matter again to decide whether it requires further clarification. I understand the distinction that he makes between a person with clinical care and a person to whom the request for a sample is addressed, but I am not sure that the problem that he raised exists. However, he has received representations that I have not, and in view of my understanding of the Bill, it might be better if I offer to examine the matter outside the Committee.

Mr James Paice (South East Cambridgeshire, Conservative)

I am grateful to the Minister. I must admit that I had assumed that other hon. Members had received the letter. I shall provide the Minister with a copy and I am happy for him to read it. I did not intend to create an unnecessary dispute; I simply wanted reassurance.

While I am on my feet, I apologise to the Committee. I allowed my memory to serve me ill when I moved the amendment and referred to my right hon. Friend the Member for Horsham. Of course, he raised a different issue that relates to the Bill.

I am happy to provide the Minister with the letter, and I look forward to his consideration of it. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 50 ordered to stand part of the Bill.