Clause 44 - Preservation for transplantation
Human Tissue Bill
10:00 am
Dr Evan Harris (Oxford West and Abingdon, Liberal Democrat)
This clause is interesting because it is different from other measures in the Bill. I think that the Minister will say that it is valuable because of the need to increase the number of organs from non-heart-beating donors, which have shown to be very effective. In some studies, they are just as effective—in terms of the length of time that the transplanted organ survives—in saving and transforming life, particularly with the donation and transplantation of kidneys. Many people argue that we will make significant progress in tackling the huge shortfall of organs available for transplantation—and do something about the hundreds of people who die every year while waiting for an organ—only by increasing that form of donation. Although there has been plenty of correspondence on this issue, and it was included in the Government's consultation, it has not been the subject of a huge amount of public debate beyond that.
I would be grateful if the Minister could respond to a number of points. First, what is the origin of the authority? It is necessary to expand on what ''authority'' refers to. In the clause, the word is used as a noun meaning ''authorisation'', rather than ''an authority''. It is not clear who is responsible for ensuring that the people carrying out these activities are competent. Subsection (4) states:
''Authority under subsection (1) shall extend to any person authorised to act under the authority by—
(a) the person on whom the authority is conferred by that subsection, or
(b) a person authorised under this subsection to act under the authority.''
In a sense, that is circular, and it is not clear whether there is an authority in the sense of the Human Tissue Authority which is responsible for dealing with this matter. One assumes, since subsection (1) refers to a
''hospital, nursing home or other institution'',
that those responsible for clinical governance and care standards in hospitals, nursing homes and other institutions will have an interest in it. It is important for the Minister to clarify that because it seems to suggest that such activity might be less well regulated by the Bill than other actions, even though it may be as controversial as, or more controversial than, other activities.
My second point concerns what the ''minimum steps necessary'' are. There has been no explanation of whether those minimum steps will relate only to cannulation of the main vessels in order to perfuse them with cold fluid, or whether elective ventilation of someone who is dead—as confirmed by brain stem death—might happen at the point of death or after death. The Minister should clarify that point, because it is currently recognised that elective ventilation of someone who is alive is not lawful. That has been examined in several cases, because elective ventilation is taking an action on someone that is not for their benefit, and therefore is not covered by the usual defence to a charge of battery. Moreover, as the Minister will be aware, there is a small risk in that process of producing a persistent vegetative state, which leaves the person in limbo. That is in no one's interest.
The correspondent of the hon. Member for Wyre Forest raised that point, among others, and, as the hon. Gentleman said, was concerned that, under clause 44, elective ventilation could also be incorporated if instituted at the point of death. That matter must be clarified, and I am not sure whether the codes of practice that are mentioned throughout the Bill will cover it, because the clause makes no specific reference to codes of practice. I regret that I have not looked through the Bill to see whether the codes of practice and the authority's remit extend to that matter. I suspect that they do not and, if that is the case, it will be necessary for clear regulations and codes of practice to be devised.
Thirdly, I hope that the Government will concede, although I suspect that they may not, that they are, for this purpose, endorsing a presumed consent. The
consent is presumed for this activity to take place, until subsequent checks are made. That is the view of many people who are examining this issue, including the correspondent of the hon. Member for Wyre Forest who says in his note that the clause, despite the protestations of the Minister regarding presumed consent,
''does constitute presumed consent, albeit for preservation techniques, not actual procurement.''
The Minister must acknowledge and deal with the fact that where the need is shown, and a good purpose is intended, it is legitimate to presume consent for an action until further considerations can be taken into account.
I would be grateful if the Minister could respond to the three points that I have raised.