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The Government Seeks to Strengthen its Hand against Proliferation of Pharmacies
983 group of right-wing free-market Conservative MPs of a entitled No Turning Back, whose purpose was to restate the true Thatcherite faith and to warn faint-hearted colleagues not to betray it. The MPs behind this pamphlet immediately seized on the regulation of pharmacies as a prize example of the sort of disloyal tricks which the Government’s non-believers would practise if not prevented. What the Bill seeks to do is to invest in the local family practitioner committees the power to vet applications from people seeking to open pharmacists’ shops. If the area in question is already
a
Commentary from Westminster The Government Seeks to Strengthen its Hand against Proliferation of Pharmacies THE National Health Service (Unforeseen Circumstances) Bill was given an unopposed second reading in the Commons last week. That is not, it must be confessed, the title its authors gave it. Officialdom, in its pedestrian way, christened it the National Health Service (Amendment) Bill. But unforeseen circumstances, even so, are the common theme that binds it together. The first part of the Bill results from the decision of the Social Services Secretary, Mr Norman Fowler, to give way to backbench pressure and accept that the protection of Crown immunity should be removed from hospital kitchens.1 The second gives watertight legal backing for a new system designed to prevent the promiscuous proliferation of pharmacies. The Government had originally intended to go ahead without legislation but was warned against it at the last moment by Health Department lawyers; it later attempted to legislate for Scotland at least by tacking appropriate provisions onto a law reform Bill already on its way through Parliament, only to be balked in the House of Lords.2 Provisions in the new Bill should make the right of the DHSS to impose the new procedures unchallengeable. The third element too recalls a nasty little brush with the lawyers, when the Department’s attempts to claw back some 11 million which on Elephant and Castle calculations had been overpaid to opticians was ruled unlawful in the courts. This Bill would give legal sanctity to the procedures the DHSS had always believed to be unquestioned until the opticians proved them wrong. But the opticians will be allowed to keep the 11 million which caused the trouble. The Bill came before the House at a moment when administrative arrangements and legal protocol in the NHS were not quite at the centre of most MPs’ preoccupations. The previous night had brought first the Government’s defeat at the hands of its own backbenchers on the Shops Bill, with its contentious provisions for Sunday opening, and then the news of the American strike on Libya, which had made every other political argument look marginal ever since. And Labour, in any case, had no great objection to what the Health Minister, Mr Barney Hayhoe, was proposing, though they did contrive to drum up a minor attack on two grounds: first, that the lifting of Crown immunity did not go nearly far enough, and that health and safety procedures too should apply on NHS premises as they do outside; and second that the Government’s concession on Crown immunity should have been accompanied by large though unspecified sums of money. It was not, they argued, the purpose of the legislation to put hordes of hospital administrators behind bars, and, this being so, the NHS ought to be given the additional resources which would clearly be needed to put its kitchens in order. Mr Hayhoe, to no-one’s surprise, declined to make any such promises, and read to the House the now familiar Governmental recital of the extra sums which the NHS is
getting already. But all of this was decorous and low key. It was from the Government’s own backbenches that we got the nearest thing to an explosion. As this column reported at the time, the first news of Government plans to legislate for new rules on the distribution of pharmacies coincided with the publication by 1 McKie D. Crown immunity. Lancet 1985; ii: 1441-42 2 McKie D The pharmacists’ contract Lancet 1985; ii: 1079-80
pamphlet
peppered with pharmacies-and some areas are (Mr Hayhoe knows of one which has 21 of the things within a square mile)-then the committee will be entitled to rule that no more are necessary. That won’t stop the newcomers opening up, but it will deprive them of the right to carry out NHS dispensing, and to claim the £3000 allowance that goes with it.
Some Conservative members do not like this at all. Mr Michael Morris (Northampton South) to find a Conservative Government setting noted, mordantly up a cartel. Mr Morris declared his interest, as a past and possibly future consultant to the Underwoods chain of shops, a High Street phenomenon of which Labour’s Frank Dobson observed: "it seems to work on the principle that no Underwoods shop is safe unless it is within sight of the next one". The objections of Mr Michael Forsyth (Stirling) and Mr Neil Hamilton (Tatton), however, were more ideological. Insulating pharmacists from competition, Mr Forsyth declared, ought to be no part of this Government’s business. As for Mr Hamilton, he was determined to be no less vigilant (or obstructive) in the interests of deregulation than 72 of his colleagues had just been against it in the Shops Bill vote. What particularly incensed him was that pharmacists themselves would have seats on the committee which judged the applications. Adam Smith, with his customary foresight, had warned against that: "people of the same trade", the sage had written, "seldom meet together, even for merriment and diversion, but the conservation ends in a conspiracy against the public, or in some contrivance to raise prices". Mr Hamilton abrasively noted that the weekly "whips" which are circulated to MPs are not after all instructions on how to vote, but only, as the Shops Bill vote had demonstrated, summonses to attend. He appealed to his fellow Conservative MPs to be true to their principles and to strike this clause from the Bill. The MPs who handle a Bill in a standing committee tend to be those who take part in the second-reading debate. So it will have come as a relief to Mr Hayhoe that neither Mr Morris, nor Mr Forsyth, nor even the incandescent Mr Hamilton, has been named for the standing committee on the NHS (Amendment Bill). The No Turning Back brigade cannot be happy about that. Are the principles of Adam Smith to go undefended? To judge by the present cast list for the standing committee, it could be so. Mr Hayhoe, it should be said, has now been restored to the ranks of the righteous, from which some of the supporters of Mr Tom Clarke’s charter for the disabled3 had sought to delete him over Easter. This reprieve follows his acceptance of two amendments tabled by Mr Clarke restoring some at least of the provisions which Mr Hayhoe’s own amendments would have stuck out. There were curious scenes of mutual congratulation as the Bill got its Commons third reading, with some who had been denouncing the Minister
Unusual,
3 McKie D.
Rights of the
disabled-and the realities Lancet 1986,
i:
811.
984 all week now hailing his wise and impartial statesmanship, while Mr Hayhoe himself proclaimed this last-minute settlement as proof that the Government’s intentions had been benign all along. On the order paper as he spoke one could still read the string of Government amendments, seeking to delete, without agreement, 15 of the 18 clauses of Mr Clarke’s original Bill. Even Mr Roland Butt, of The Times, normally one of this Government’s most loyal supporters, was moved to attack its handling of this issue as demonstrating an insensitivity which if unchecked could yet destroy their chances of winning the next general election. Still, at least they relented at the end, which gave enormous pleasure to Mr Clarke and which, it seemed pretty clear, was very much Mr Hayhoe’s personal preference too. DAVID MCKIE
Medicine and the Law Severely Handicapped Babies
and the Law
BABIES, handicapped or normal, cannot consent to or refuse medical treatment to sustain life or allow it to terminate. How free are doctors and parents to do so for them? Can death ever be a legally valid choice? THE DOCTRINE OF SANCTITY OF LIFE
The Fetus A fetus does not have a human being’s full legal status, but it does have some rights and protection in law. As it develops and becomes "viable" it acquires much greater legal protection, though until it is born alive the mother’s right to life will be greater than that of the fetus if the two should directly compete. The Infant Life Preservation Act 1929 introduced the statutory offence of child destruction-namely, causing the death of a baby capable of being born alive before it has an existence independent of its mother. This act is not a crime if it is done in good faith (for instance, if the fetus was thought to be already dead) or for the sole purpose of preserving the life of the mother. The 1929 Act provides that a fetus is capable of being born alive at 28 weeks’ gestation, which is the maximum legal limit under which doctors may terminate a pregnancy under the 1967 Abortion Act. Some babies born before 28 weeks do survive, and abortion is not usually done after 22-24 weeks. The abortion laws contained in the Offences Against the Person Act 1861 were significantly modified by the Abortion Act, which introduced "social" factors and for the first time permitted abortion of a non-viable fetus if there was a substantial risk that it would be born seriously handicapped. The mother’s consent is required, but the prospective father has no legal standing. This Act made serious inroads on the doctrine of the sanctity of human life; for thirty years, R v Bourne1 had provided very limited scope for therapeutic abortion. The 1967 Act, though still controversial, has radically changed medical and social attitudes in this area. Strenuous efforts are now directed to identifying handicapped fetuses so that they can be aborted as early as possible if the mother so wishes. The
Legal Rights of the Handicapped Baby Though a handicapped non-viable fetus may be legally aborted, or destroyed even when viable if to preserve the life of the mother, once it is born alive it has full legal status. Thus, although parents and doctors may regard handicapped fetuses as potentially destructible and of different status to normal fetuses, they must take good care that this attitude does not affect their behaviour once such a baby is born alive. In 1981 the Court of Appeal considered the case of a Down syndrome baby with duodenal atresia, which, if left unoperated, would have been fatal.2 The parents in "re B (Minor)" had considered this Nature’s way out of a sad life. Various doctors had been consulted, and most had accepted the parents’ view. However, there were other doctors who had thought differently. The baby had been hurriedly made a ward of court. Ewbank J had made an order according with the parents’ wishes, but the Court of Appeal
reversed his decision. Templeman LJ said, "It is a decision which must be made in the light of the evidence and views expressed by the parents and the doctors, but at the end of the day it devolves on this court in this particular instance to decide whether the life of this child is demonstrably going to be so awful that in effect the child must be condemned to die, or whether the life of this child is still so imponderable that it would be wrong for her to be condemned to die ... The evidence in this case only goes to show that if the operation takes place and is successful the child may live the normal span of a mongoloid child with the handicaps and defects of the life of a mongol child and it is not for this court to say that life of that description ought to be extinguished. There may be cases, I know not, of severe proved damage where the future is so certain and where the life of the child is so bound to be full of pain and suffering that the court might be driven to a different conclusion... it is the duty of this court to decide that the child must live." In McKay v Essex AHA3the Court was concerned with a claim for "wrongful life", but Stephenson LJ said, "Because a doctor can lawfully by statute do to a fetus what he cannot lawfully do to a person who has been born, it does not follow that he is under a legal obligation to a fetus to do it or that the fetus has a legal right to die. To impose such a duty towards the child would ... make a further inroad on the sanctity of human life which would be contrary to public policy. It would mean regarding the life of a handicapped child as not only less valuable than the life of a normal child but so much less valuable that it was not worth preserving." Shortly after re B (Minor) was decided, the Director of Public Prosecutions took no action against a doctor who was alleged to have refused to sustain a spina bifida baby, Stephen Quinn. Are the decisions compatible? Baby Quinn would not only have been physically and mentally handicapped but would probably have suffered considerable pain. Though it is doubtful whether the life of a spina bifida child would be legally regarded as so awful and intolerable as to fall into the category of exceptions, intervention by the criminal law was obviously regarded as inappropriate. In the same year, 1981, Dr Leonard Arthur was tried for murder, later attempted murder, of a Down syndrome baby.4 In
unanimously
the
June, 1980, baby John Pearson was born with apparently uncomplicated Down syndrome. Dr Arthur, a paediatrician of impeccable professional integrity, was consulted. He wrote a note, "Parents do
not
wish it
prescribed dihydrocodeine,
to to
survive. be
Nursing care only". He given orally in 5 mg doses to
alleviate distress as and when it arose, not more than every 4 hours. 69 hours later the baby died. The cause of death was given as bronchopneumonia due to consequences of Down syndrome. The baby was fed only on water laced with dihydrocodeine. A member of the "Life" organisation contacted the police and alleged that the baby had been starved to death and left in a side ward to die. 8 months later Dr Arthur was charged with murder. He himself gave no evidence. The prosecution evidence largely collapsed during the trial, and the charge of murder was withdrawn and attempted murder substituted. The evidence showed that baby Pearson was congenitally very sick, with calcification of the brain, fibroelastosis of the heart, and lung abnormalities. Dr Arthur knew only of the diagnosis of Down syndrome when he prescribed "nursing care only". The prosecution throughout conceded that Dr Arthur had acted from the highest motives, adopting the course of treatment he considered the most humane for both baby and family. But, said the prosecution, the time had not yet come when a doctor could say, "Because you are mentally handicapped and your parents do not want you to survive, I’m going to take such steps as to ensure that you do not survive". If a doctor did that he would be in conflict with the criminal law. An impressive array of doctors testified, on behalf of Dr Arthur, that allowing a severely handicapped baby to die, if the parents wished it, was accepted medical practice. No paediatrician spoke for the prosecution. Generally the law distinguishes between acts of omission (neglecting to do) and commission (implying positive intent). Though a person generally owes no duty to act towards another person, if such a duty does exist in law, as between a doctor and his patient, and a person dies as a foreseeable result of failure to act, then
a
Commentary from Westminster The Government Seeks to Strengthen its Hand against Proliferation of Pharmacies THE National Health Service (Unforeseen Circumstances) Bill was given an unopposed second reading in the Commons last week. That is not, it must be confessed, the title its authors gave it. Officialdom, in its pedestrian way, christened it the National Health Service (Amendment) Bill. But unforeseen circumstances, even so, are the common theme that binds it together. The first part of the Bill results from the decision of the Social Services Secretary, Mr Norman Fowler, to give way to backbench pressure and accept that the protection of Crown immunity should be removed from hospital kitchens.1 The second gives watertight legal backing for a new system designed to prevent the promiscuous proliferation of pharmacies. The Government had originally intended to go ahead without legislation but was warned against it at the last moment by Health Department lawyers; it later attempted to legislate for Scotland at least by tacking appropriate provisions onto a law reform Bill already on its way through Parliament, only to be balked in the House of Lords.2 Provisions in the new Bill should make the right of the DHSS to impose the new procedures unchallengeable. The third element too recalls a nasty little brush with the lawyers, when the Department’s attempts to claw back some 11 million which on Elephant and Castle calculations had been overpaid to opticians was ruled unlawful in the courts. This Bill would give legal sanctity to the procedures the DHSS had always believed to be unquestioned until the opticians proved them wrong. But the opticians will be allowed to keep the 11 million which caused the trouble. The Bill came before the House at a moment when administrative arrangements and legal protocol in the NHS were not quite at the centre of most MPs’ preoccupations. The previous night had brought first the Government’s defeat at the hands of its own backbenchers on the Shops Bill, with its contentious provisions for Sunday opening, and then the news of the American strike on Libya, which had made every other political argument look marginal ever since. And Labour, in any case, had no great objection to what the Health Minister, Mr Barney Hayhoe, was proposing, though they did contrive to drum up a minor attack on two grounds: first, that the lifting of Crown immunity did not go nearly far enough, and that health and safety procedures too should apply on NHS premises as they do outside; and second that the Government’s concession on Crown immunity should have been accompanied by large though unspecified sums of money. It was not, they argued, the purpose of the legislation to put hordes of hospital administrators behind bars, and, this being so, the NHS ought to be given the additional resources which would clearly be needed to put its kitchens in order. Mr Hayhoe, to no-one’s surprise, declined to make any such promises, and read to the House the now familiar Governmental recital of the extra sums which the NHS is
getting already. But all of this was decorous and low key. It was from the Government’s own backbenches that we got the nearest thing to an explosion. As this column reported at the time, the first news of Government plans to legislate for new rules on the distribution of pharmacies coincided with the publication by 1 McKie D. Crown immunity. Lancet 1985; ii: 1441-42 2 McKie D The pharmacists’ contract Lancet 1985; ii: 1079-80
pamphlet
peppered with pharmacies-and some areas are (Mr Hayhoe knows of one which has 21 of the things within a square mile)-then the committee will be entitled to rule that no more are necessary. That won’t stop the newcomers opening up, but it will deprive them of the right to carry out NHS dispensing, and to claim the £3000 allowance that goes with it.
Some Conservative members do not like this at all. Mr Michael Morris (Northampton South) to find a Conservative Government setting noted, mordantly up a cartel. Mr Morris declared his interest, as a past and possibly future consultant to the Underwoods chain of shops, a High Street phenomenon of which Labour’s Frank Dobson observed: "it seems to work on the principle that no Underwoods shop is safe unless it is within sight of the next one". The objections of Mr Michael Forsyth (Stirling) and Mr Neil Hamilton (Tatton), however, were more ideological. Insulating pharmacists from competition, Mr Forsyth declared, ought to be no part of this Government’s business. As for Mr Hamilton, he was determined to be no less vigilant (or obstructive) in the interests of deregulation than 72 of his colleagues had just been against it in the Shops Bill vote. What particularly incensed him was that pharmacists themselves would have seats on the committee which judged the applications. Adam Smith, with his customary foresight, had warned against that: "people of the same trade", the sage had written, "seldom meet together, even for merriment and diversion, but the conservation ends in a conspiracy against the public, or in some contrivance to raise prices". Mr Hamilton abrasively noted that the weekly "whips" which are circulated to MPs are not after all instructions on how to vote, but only, as the Shops Bill vote had demonstrated, summonses to attend. He appealed to his fellow Conservative MPs to be true to their principles and to strike this clause from the Bill. The MPs who handle a Bill in a standing committee tend to be those who take part in the second-reading debate. So it will have come as a relief to Mr Hayhoe that neither Mr Morris, nor Mr Forsyth, nor even the incandescent Mr Hamilton, has been named for the standing committee on the NHS (Amendment Bill). The No Turning Back brigade cannot be happy about that. Are the principles of Adam Smith to go undefended? To judge by the present cast list for the standing committee, it could be so. Mr Hayhoe, it should be said, has now been restored to the ranks of the righteous, from which some of the supporters of Mr Tom Clarke’s charter for the disabled3 had sought to delete him over Easter. This reprieve follows his acceptance of two amendments tabled by Mr Clarke restoring some at least of the provisions which Mr Hayhoe’s own amendments would have stuck out. There were curious scenes of mutual congratulation as the Bill got its Commons third reading, with some who had been denouncing the Minister
Unusual,
3 McKie D.
Rights of the
disabled-and the realities Lancet 1986,
i:
811.
984 all week now hailing his wise and impartial statesmanship, while Mr Hayhoe himself proclaimed this last-minute settlement as proof that the Government’s intentions had been benign all along. On the order paper as he spoke one could still read the string of Government amendments, seeking to delete, without agreement, 15 of the 18 clauses of Mr Clarke’s original Bill. Even Mr Roland Butt, of The Times, normally one of this Government’s most loyal supporters, was moved to attack its handling of this issue as demonstrating an insensitivity which if unchecked could yet destroy their chances of winning the next general election. Still, at least they relented at the end, which gave enormous pleasure to Mr Clarke and which, it seemed pretty clear, was very much Mr Hayhoe’s personal preference too. DAVID MCKIE
Medicine and the Law Severely Handicapped Babies
and the Law
BABIES, handicapped or normal, cannot consent to or refuse medical treatment to sustain life or allow it to terminate. How free are doctors and parents to do so for them? Can death ever be a legally valid choice? THE DOCTRINE OF SANCTITY OF LIFE
The Fetus A fetus does not have a human being’s full legal status, but it does have some rights and protection in law. As it develops and becomes "viable" it acquires much greater legal protection, though until it is born alive the mother’s right to life will be greater than that of the fetus if the two should directly compete. The Infant Life Preservation Act 1929 introduced the statutory offence of child destruction-namely, causing the death of a baby capable of being born alive before it has an existence independent of its mother. This act is not a crime if it is done in good faith (for instance, if the fetus was thought to be already dead) or for the sole purpose of preserving the life of the mother. The 1929 Act provides that a fetus is capable of being born alive at 28 weeks’ gestation, which is the maximum legal limit under which doctors may terminate a pregnancy under the 1967 Abortion Act. Some babies born before 28 weeks do survive, and abortion is not usually done after 22-24 weeks. The abortion laws contained in the Offences Against the Person Act 1861 were significantly modified by the Abortion Act, which introduced "social" factors and for the first time permitted abortion of a non-viable fetus if there was a substantial risk that it would be born seriously handicapped. The mother’s consent is required, but the prospective father has no legal standing. This Act made serious inroads on the doctrine of the sanctity of human life; for thirty years, R v Bourne1 had provided very limited scope for therapeutic abortion. The 1967 Act, though still controversial, has radically changed medical and social attitudes in this area. Strenuous efforts are now directed to identifying handicapped fetuses so that they can be aborted as early as possible if the mother so wishes. The
Legal Rights of the Handicapped Baby Though a handicapped non-viable fetus may be legally aborted, or destroyed even when viable if to preserve the life of the mother, once it is born alive it has full legal status. Thus, although parents and doctors may regard handicapped fetuses as potentially destructible and of different status to normal fetuses, they must take good care that this attitude does not affect their behaviour once such a baby is born alive. In 1981 the Court of Appeal considered the case of a Down syndrome baby with duodenal atresia, which, if left unoperated, would have been fatal.2 The parents in "re B (Minor)" had considered this Nature’s way out of a sad life. Various doctors had been consulted, and most had accepted the parents’ view. However, there were other doctors who had thought differently. The baby had been hurriedly made a ward of court. Ewbank J had made an order according with the parents’ wishes, but the Court of Appeal
reversed his decision. Templeman LJ said, "It is a decision which must be made in the light of the evidence and views expressed by the parents and the doctors, but at the end of the day it devolves on this court in this particular instance to decide whether the life of this child is demonstrably going to be so awful that in effect the child must be condemned to die, or whether the life of this child is still so imponderable that it would be wrong for her to be condemned to die ... The evidence in this case only goes to show that if the operation takes place and is successful the child may live the normal span of a mongoloid child with the handicaps and defects of the life of a mongol child and it is not for this court to say that life of that description ought to be extinguished. There may be cases, I know not, of severe proved damage where the future is so certain and where the life of the child is so bound to be full of pain and suffering that the court might be driven to a different conclusion... it is the duty of this court to decide that the child must live." In McKay v Essex AHA3the Court was concerned with a claim for "wrongful life", but Stephenson LJ said, "Because a doctor can lawfully by statute do to a fetus what he cannot lawfully do to a person who has been born, it does not follow that he is under a legal obligation to a fetus to do it or that the fetus has a legal right to die. To impose such a duty towards the child would ... make a further inroad on the sanctity of human life which would be contrary to public policy. It would mean regarding the life of a handicapped child as not only less valuable than the life of a normal child but so much less valuable that it was not worth preserving." Shortly after re B (Minor) was decided, the Director of Public Prosecutions took no action against a doctor who was alleged to have refused to sustain a spina bifida baby, Stephen Quinn. Are the decisions compatible? Baby Quinn would not only have been physically and mentally handicapped but would probably have suffered considerable pain. Though it is doubtful whether the life of a spina bifida child would be legally regarded as so awful and intolerable as to fall into the category of exceptions, intervention by the criminal law was obviously regarded as inappropriate. In the same year, 1981, Dr Leonard Arthur was tried for murder, later attempted murder, of a Down syndrome baby.4 In
unanimously
the
June, 1980, baby John Pearson was born with apparently uncomplicated Down syndrome. Dr Arthur, a paediatrician of impeccable professional integrity, was consulted. He wrote a note, "Parents do
not
wish it
prescribed dihydrocodeine,
to to
survive. be
Nursing care only". He given orally in 5 mg doses to
alleviate distress as and when it arose, not more than every 4 hours. 69 hours later the baby died. The cause of death was given as bronchopneumonia due to consequences of Down syndrome. The baby was fed only on water laced with dihydrocodeine. A member of the "Life" organisation contacted the police and alleged that the baby had been starved to death and left in a side ward to die. 8 months later Dr Arthur was charged with murder. He himself gave no evidence. The prosecution evidence largely collapsed during the trial, and the charge of murder was withdrawn and attempted murder substituted. The evidence showed that baby Pearson was congenitally very sick, with calcification of the brain, fibroelastosis of the heart, and lung abnormalities. Dr Arthur knew only of the diagnosis of Down syndrome when he prescribed "nursing care only". The prosecution throughout conceded that Dr Arthur had acted from the highest motives, adopting the course of treatment he considered the most humane for both baby and family. But, said the prosecution, the time had not yet come when a doctor could say, "Because you are mentally handicapped and your parents do not want you to survive, I’m going to take such steps as to ensure that you do not survive". If a doctor did that he would be in conflict with the criminal law. An impressive array of doctors testified, on behalf of Dr Arthur, that allowing a severely handicapped baby to die, if the parents wished it, was accepted medical practice. No paediatrician spoke for the prosecution. Generally the law distinguishes between acts of omission (neglecting to do) and commission (implying positive intent). Though a person generally owes no duty to act towards another person, if such a duty does exist in law, as between a doctor and his patient, and a person dies as a foreseeable result of failure to act, then