Clause 50 - Specimens taken from persons incapable of consenting
Police Reform Bill [Lords]
5:45 pm
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''.