Clause 3 - ''Appropriate consent'': adults

Human Tissue Bill – in a Public Bill Committee at 11:00 am on 29th January 2004.

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Photo of Andrew Lansley Andrew Lansley Shadow Secretary of State for Health 11:00 am, 29th January 2004

I beg to move amendment No. 90, in

clause 3, page 3, line 40, at end insert—

'(2A) In relation to the purposes in paragraph 7 in Schedule 1, where it is not contrary to his interests and would benefit persons with the same or similar conditions, a person who stands in a qualifying relation to him can consent on behalf of an adult who lacks the mental capacity to make decisions on his own behalf.'.

Photo of Mr Alan Hurst Mr Alan Hurst Labour, Braintree

With this it will be convenient to discuss the following: Amendment (a) to the proposed amendment, in

line 1, leave out 'paragraph' and insert 'paragraphs 3, 5 and'.

Amendment (b) to the proposed amendment, in

line 2, leave out 'would' and insert 'might'.

Amendment No. 91, in

clause 24, page 15, line 24, after '(ii)', insert '3(2A)'.

Photo of Andrew Lansley Andrew Lansley Shadow Secretary of State for Health 11:15 am, 29th January 2004

During the consultation that led to the framing of the Bill, the question of what should happen in circumstances where someone lacks the capacity to give consent was considered. The law does not permit someone to give consent to treatment on behalf of another adult. By extension, therefore, the structure of consent does not allow someone to give consent for the retention of tissues and organs on behalf of another adult.

The consultation went on to consider the question of best interests and non-therapeutic research. Taking it step by step, the best interest criteria include the fact that a clinician dealing with someone who cannot give consent, or who does not have the capacity to do so in relation to therapy, can treat that patient if it is in the patient's best interests. However, something that is not concerned with the treatment of that patient would not necessarily satisfy the definition of best interests.

The consultation also considered the Council of Europe convention on human rights and biomedicine, which recognised the fact that non-therapeutic research on a person not able to consent would be ethical—I think it should have said ''could'' be ethical—if strict safeguards were applied. A document, ''Who Decides? Making Decisions on Behalf of Mentally Incapacitated Adults'', was based on the work of the Law Commission. It considered that question and observed that non-therapeutic research could improve understanding of the

condition from which a patient suffers, and may assist fellow suffers in future.

The consultation pointed to a consensus that non-therapeutic research could be justifiable if it was concerned with the condition from which a person without capacity suffered and if the procedures involved minimal risk and invasiveness. The commission's recommendation was touched upon on Second Reading. If my recollection is correct, the Minister said that that would be dealt with in the draft Mental Incapacity Bill. However, in this Bill we are setting the legislative framework for the retention of organs and tissues.

On the face of it, we were surprised that the issue was not being dealt with in this Bill, given the recommendations of the Law Commission. Amendment No. 90 is designed to achieve that. It would provide for occasions on which an adult who lacked the mental capacity to make a decision needed a person in a qualifying relationship to give the appropriate consent for him. Amendment No. 91 to clause 24 links up with the subsequent definition of qualifying relationship, and is merely consequential.

Amendment No. 90 refers to this process being ''not contrary'' to that person's interests—that is in relation to the ''minimal risk and invasiveness''—and to whether it would

''benefit persons with the same or similar conditions''.

A test therefore has to be met, and we propose that it should relate specifically to medical research under paragraph 7 of schedule 1 in connection with disorders of the functioning of the human body, rather than the wider ones proposed separately by the hon. Member for Oxford, West and Abingdon. We decided at that point to try to implement the Law Commission's intentions.

If Ministers and the Committee are not persuaded to include that provision now, we can at least explore Ministers' intentions in relation to the Mental Incapacity Bill, so that in due course people can see the whole framework of legislation.

Photo of Harry Cohen Harry Cohen Labour, Leyton and Wanstead

I appreciate the hon. Member for South Cambridgeshire tabling the amendment. It is right to seek clarification on how people with mental incapacity will be treated under this Bill. I raised that point on Second Reading, as did my hon. Friend the Member for Liverpool, West Derby (Mr. Wareing).

Clause 3 is about appropriate consent for adults and we have just dealt with the clause on appropriate consent for children. However, people with mental incapacity are another issue. Children are clearly vulnerable in many ways and of special interest. In my opinion, people with mental incapacity are similarly vulnerable and need special arrangements.

Other organisations have also asked for clarification. For example, the Royal College of Nursing asked for clarification on procedures for those with learning difficulties or incapacities. The assumption seems to be that people with mental illness

and mental incapacity need to be treated in the same way as every other adult. That may not be appropriate. Whereas many would want to be treated equally and to have the same rules apply to them as to other adults, there is a specific difference. Their judgment may be easily or overly influenced and they may not make the best decision in terms of their own interest. They may not even be fully capable of making such a decision. That needs to be taken into account.

I have raised the issue of criminal brains and I asked questions about that on Second Reading. I am told that there is a market for such brains, because a criminal gene is being looked for. There could also be a search for a mentally ill persons' gene; in future, there could be a demand for the body parts, particularly the brain, of someone with a specific mental illness. That needs to be considered. I ask the Minister for clarification because of that particular vulnerability.

Photo of Ian Gibson Ian Gibson Labour, Norwich North

I am sure that I could offer my brain to the Government Whips, who would probably take it with great alacrity at the moment.

As I understand it, the Mental Incapacity Bill will examine a system of advocacy for patients and how they are supported and helped, recognising the fact that the system is often hard for them to unearth. That will help to meet some of the problems raised by my hon. Friend.

Photo of Harry Cohen Harry Cohen Labour, Leyton and Wanstead

I certainly welcome that and I would support such a system. However, this Bill does not touch on that issue. There should be a code of guidance, or something in the Bill that cross-references it to that system of advocacy. I am glad that the amendment has been tabled, as it means that we can get some clarification from the Minister on that important point.

Photo of Evan Harris Evan Harris Liberal Democrat, Oxford West and Abingdon

I support amendments (a) and (b). They probe on the amendment tabled by the hon. Member for South Cambridgeshire. It should be noted that his amendment is about matters that are ''not contrary'' to the interests of people, rather than in their best interests. That is important, because a requirement that related to their best interests might make it difficult to carry out non-therapeutic research. It may not be in the best interests of such a person to carry out non-therapeutic research, but it certainly cannot be contrary to their interest for research to be carried out. That would be the case not only on research, but with regard to the purposes set out in paragraphs 5 and 3 of schedule 1:

''Obtaining scientific or medical information about a living or deceased person which may be relevant to any other person (including a future person)''

and education and training. If I may give an example of people who, in my experience, are almost always incapacitated—

It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at half-past Two o'clock.