Clause 46 - Offences relating to non-consensual analysis of DNA
Human Tissue Bill
11:00 am
Dr Evan Harris (Oxford West and Abingdon, Liberal Democrat)
The hon. Gentleman is nodding. No doubt he is already thinking about a grant application.
My second point concerns correspondence that I have had on the issue of intention. Will the Minister expand on intentional offences? I am sure that there are intentional offences, but we must be careful before legislating in that area because of the difficulty of proof. I do not suggest that she seeks to create a thought crime that might be too wide, but we know the sort of thing that she is considering. Is there any evidence that the sorts of offences that we are talking about will be caught by the measure? In the scenario that she painted, in which person A has the material innocently and person B carries out the DNA analysis, it is possible that, although the analysis is carried out without consent, no one would be found guilty because the person who committed the offence reasonably believed that the material was accepted and that consent had been given.
We must stress that there is a duty to be careful when carrying out DNA analyses because of the other purposes to which they may be put. The exemption for reasonable belief might—I surprise myself by saying this—allow cases to slip through, and people carrying out DNA analysis might not be required to be careful about ensuring that they have consent. There must be
a requirement that people are not reckless about consent. The default situation should be that gaining consent is carefully done.
The ethics and law surrounding the analysis of a person's DNA for the clinical benefit of someone else have not been raised. Someone might require information about someone else's genetics to find out whether they have a condition and, if so, what is the right treatment available. That might be the case particularly for the advice needed for genetic counselling. I regret that I cannot illustrate a scenario now, but that is why schedule 1 provides for research to be done for the benefit of another individual. If it emerges that information from a dead person might be useful but that he gave no recent consent for DNA analysis, would the person whom it might help have recourse to using it? Schedule 1 refers to:
''Obtaining scientific or medical information about a living or deceased person which may be relevant to any other person''.
Clearly, that normally requires consent. However, in the case of DNA analysis, what are the Government's intentions if the interests of two people sharing genetic information must be considered? That case may not arise, but it is a concern.
A series of issues have emerged as a result of the inclusion of criminal justice purposes that do not require consent. There is a civil liberties issue concerning the circumstances under which DNA analysis of such material should be permitted. Would it be permitted if people were charged or detained, or would it be permitted in all cases? How will the provisions relate to criminal justice measures that have either been proposed or enacted? Many people are concerned that their DNA might be used for criminal justice purposes without their knowledge even if they are not in the frame or have not been charged. We must be clear about the circumstances under which DNA analysis is permitted.
There are other significant issues to which we may need to return, but I am conscious of the time so I will leave my remarks at that.