Clause 24 - Provision with respect to consent

Human Tissue Bill – in a Public Bill Committee at 3:30 pm on 3rd February 2004.

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Photo of Rosie Winterton Rosie Winterton The Minister of State, Department of Health 3:30 pm, 3rd February 2004

I beg to move amendment No. 108, in

clause 24, page 15, line 28, at end insert—

'( ) grandparent or grandchild;'.

Photo of Joe Benton Joe Benton Labour, Bootle

With this it will be convenient to discuss the following:

Amendment No. 11, in

clause 24, page 15, line 28, at end insert—

'(ca) grandparent;'.

Amendment No. 102, in

clause 24, page 15, line 28, at end insert—

'(cb) grandchild;'.

Government amendment No. 110.

Amendment No. 12, in

clause 56, page 34, line 9, after first 'sister', insert 'grandparent'.

Amendment No. 103, in

clause 56, page 34, line 9, after first 'sister', insert 'grandchild'.

Photo of Rosie Winterton Rosie Winterton The Minister of State, Department of Health

I have good news. It is either ''Guilty, m'lud'' or well done to the Opposition for spotting the deliberate mistake in the Bill. I wanted to give them something to get their teeth into and to test whether they were awake. Indeed, they proved to be awake.

We are grateful for having been alerted to the fact that we had inadvertently left out grandparents and grandchildren from the list of qualifying relations of a deceased person who can consent to the removal, storage and use of that deceased person's tissue for scheduled purposes where the deceased made no decision about that prior to death. We have tabled the amendments to cover that. The amendments to clauses 24 and 56 cover the hierarchy and the list of qualifying relationships.

It is appropriate to put grandparents and grandchildren on the same rank in the hierarchy, and after brother and sister, rather than on successive levels, as in the Opposition's proposals. That is simply because it is unlikely that both a grandparent and a grandchild of a person would be alive and able to give consent at the same time. Therefore, there is little point in ranking one above the other.

I hope that the hon. Member for South Cambridgeshire will not press his amendments and triumphantly welcome mine.

Photo of Andrew Lansley Andrew Lansley Shadow Secretary of State for Health

We do indeed welcome the Government's acceptance of the point that we put to them, and we applaud their amendments Nos. 108 and 110. They go further than we had divined: the Government noticed that it is unlikely that any person would at the same time have grandparents and grandchildren in a qualifying relationship. Happily,

we do not have to determine whether grandparents should stand higher in the hierarchy of qualifying relationships than grandchildren, although that had been our intention.

We commend amendments Nos. 108 and 110 to the Committee.

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

I share that welcome for this group of amendments. However, I may have missed something. I wish to make a point that has only just occurred to me. I thought that I might raise it now, although I accept that it is not a big issue because it might be possible to answer it immediately by directing me to the right place. At what age does a child or grandchild who might be quite young become old enough to qualify to give that consent? Is it the sort of consent that is referred to in the rest of the Bill—in other words, must they be capable of giving consent in the terms of the Gillick competence? If so, where is that provided for, or is there a different standard of age? I imagine that there will be sad occasions when a child is asked to give consent. I would be grateful for clarification on that.

Photo of Rosie Winterton Rosie Winterton The Minister of State, Department of Health

The same principle would be applied as that applied earlier in the Bill to consent to anatomical examination: the Gillick principle—the age of understanding as applied in that sense.

Amendment agreed to.

Photo of Andrew Lansley Andrew Lansley Shadow Secretary of State for Health

I beg to move amendment No. 21, in

clause 24, page 15, line 38, leave out subsection (7) and insert—

'(7) If the relationship of each of two or more persons to the person concerned is accorded equal ranking in accordance with subsections (4) and (5), it will be necessary to obtain the consent of each of them if they are a spouse or partner, parent or child.

(7A) In relation to qualifying relationships in paragraphs (4)(c) to (g), if two or more persons concerned who are accorded equal ranking do not agree as to whether consent should be given, it will be sufficient to obtain the consent of one, if there are two, or the majority of them if there are three or more.'.

Photo of Joe Benton Joe Benton Labour, Bootle

With this it will be convenient to discuss the following:

Amendment No. 19, in

clause 24, page 15, line 40, after 'sufficient', insert

', except in relation to a spouse or partner,'.

Amendment No. 20, in

clause 24, page 15, line 40, at end insert—

'(7A) In relation to persons in a qualifying relationship under subsection (4)(a) or (b), it will be necessary to obtain the consent of each of them.'.

Amendment No. 27, in

clause 56, page 34, line 7, at end insert—

'(8A) Subsection (8) does not apply in relation to any person to whom paragraphs (b) to (f) of subsection (4) of section 24 applies.'.

Photo of Andrew Lansley Andrew Lansley Shadow Secretary of State for Health

This debate might be a little more complex than the one about including grandparents and grandchildren.

Subsection (7) states:

''If the relationship of each of two or more persons to the person concerned is accorded equal highest ranking in accordance with subsections (4) and (5)''— with the qualifying relationship hierarchy that we have just started discussing—

''it is sufficient to obtain the consent of any of them.''

Therefore, if there were two parents in a qualifying relationship, it would be sufficient to obtain the consent of either of them. If there were several siblings, it would be sufficient to obtain the consent of any of those siblings. I must confess that when I read that I was surprised. It seemed that there was a risk of expressly contemplating, for example, that the consent of one parent would suffice even though there were objections from another parent. That did not seem consistent with best practice.

Amendment No. 21 would change the structure of subsection (7) so that it said:

''If the relationship of each of two or more persons to the person concerned is accorded equal ranking in accordance with subsections (4) and (5), it will be necessary to obtain the consent of each of them if they are a spouse or partner, parent or child.''

The first question that occurred was whether one could have more than one spouse. The answer is no, but one could have more than one spouse or partner. Legally, one could have a spouse at the same time as having a partner under the terms of clause 56, which we shall come to discuss. Let us contemplate the unhappy set of circumstances in which consent was given by an estranged spouse, but was objected to by a partner. As a consequence of the amendment, one would have to obtain in such circumstances the consent of each of them rather than either of them.

There is also the question of number of children and siblings, and so on. Proposed subsection (7A) says:

''In relation to qualifying relationships in paragraphs (4)(c) to (g)'', which is from siblings downwards on the list in subsection (4),

''if two or more persons concerned who are accorded equal ranking do not agree as to whether consent should be given, it will be sufficient to obtain the consent of one, if there are two, or the majority of them if there are three or more.''

The drafting may be not absolutely happy, in that one cannot get a majority of four. No doubt that is why one has parliamentary counsel. However, the purpose of the amendment is to ensure that it is not enough just to find the consent of one person. The principle should be that when the qualifying relationship is very close—that is, it involves a spouse, partner, parent or child—they should all consent. When the relationships are less immediate, one should look for the majority view.

Amendment No. 19 would also amend subsection (7). If amendment No. 21 were not acceptable, amendment No. 19 would be a different route to entrenching the right of a spouse or partner to object. Amendment No. 20 would insert a new subsection. It would go along with amendment No. 19, because amendment No. 19 would take out the provision in subsection (7) that means that ''the consent of any'' of the spouse or partners would be sufficient. Amendment No. 20 would insert a proposed subsection (7A), which would mean that where a spouse or partner, parent or child is concerned,

''it will be necessary to obtain the consent of each of them.''

Amendment No. 27 relates to clause 56. In the qualifying relationships under clause 24, we are talking about spouse or partner. We are not engaging in a definition of ''next of kin''; we are setting up structural

qualifying relationships. The Civil Partnerships Bill will, no doubt, give the House an opportunity to consider the issues surrounding the relationships between persons who are not blood relatives or legal spouses. Clause 56 needs, for the purposes of the Bill, to tell us what a partner is.

Clause 56(8) says:

''For the purposes of this Act . . . a person is another's partner if the two of them (whether of different sexes or the same sex) live as partners in an enduring family relationship.''

To say that the definition of partners is that they live as partners is a circular argument. One is a partner if one is a partner. The important phrase is ''enduring family relationship.''

I do not want to get into a long discussion about civil partnerships, although I could—you would not be happy if I did, so Mr. Hurst. However, I think that the hon. Member for Oxford, West and Abingdon is with me when I say that this is known colloquially as a spinster sisters amendment. One cannot and should not be able to elevate somebody in the ranking by virtue of an enduring family relationship where an individual's relationship to the person in question is defined elsewhere in the qualifying relationship.

One could say that even though the spinster sister who is living as a partner in a household with the person in question is not the person who ranks highest in the list of qualifying relationships, they should still be treated as such. I am arguing that we should not take that view; the qualifying relationship should not permit that argument to be won, not least because of the difficulties that will ensue for the NHS if it has to become arbiter of disagreements. We must try to be as clear as we can. If somebody is lower down in the list of qualifying relationships but is a blood relative, they should not be able to be treated as if they were a partner. For this purpose, a partner is exclusive of people who are otherwise specified in the list of qualifying relationships.

Amendment No. 27 states:

''Subsection (8) does not apply in relation to any person to whom paragraphs (b) to (f) of subsection (4) of section 24 applies.''

Paragraphs (b) to (f) refer to people who could be next of kin. I have left out paragraph (g)—''friend of longstanding''—as it is entirely possible that a friend of longstanding might well be the same type of person who qualifies as a partner. I am concentrating on the question of blood relatives. I admit that my point is arguable, and that if one qualifies as a partner, one ought to be able to move up the qualifying relationship ranking. For clarity and to make decision making more straightforward for the NHS, I propose that we exclude that possibility.

Photo of Evan Harris Evan Harris Liberal Democrat, Oxford West and Abingdon 3:45 pm, 3rd February 2004

It is appropriate to deal with the last issue first since it is fresh in our minds. In a typically thoughtful contribution, the hon. Member for South Cambridgeshire has drawn our attention to a problem.

Usually when this issue is discussed in the context of civil partnerships, the hon. Gentleman's colleagues take the view that such partnerships should extend to elderly spinster sisters living together in the sort of

relationship that he has described. It is noteworthy that that can work both ways, and he has identified that that might be awkward for the NHS to interpret. If one accepts the view that the term ''partners'' can extend to those people who are co-dependent on each other and living together in an enduring family relationship, which might include spinster sisters—a terrible stereotype, but one that the hon. Gentleman's colleagues have used before—it is reasonable that they should be allowed to move up the chain, as it were. If one accepts the definition of ''partner'' as reasonable, it does not automatically follow that simply because it is difficult for the NHS to interpret, a partner should not have the same status as, for example, an estranged spouse. That could create as many problems as the hon. Gentleman wants to solve.

I do not know whether the problem of definition can be solved for the Government by their being a little clearer about what they mean in clause 56. Perhaps in a rather prissy way those who drafted the Bill have left the terminology a little vague, because they have not understood it to mean a sexual relationship or its equivalent. There may be reasons for that. The Government often use the term ''living together'' as analogous to married status or a spousal relationship. Because the drafters of the Bill have chosen not to go down that path, I presume that they will resist the amendment and could be defended in so doing, at least for such purposes.

I am grateful to the hon. Member for South Cambridgeshire for having explained the other three amendments. They are different approaches to the same issue. I ask the Government to think twice before necessarily accepting them in full. Let us take the situation of two parents of an adult, where they are the people who will need to make the decision. It would be reasonable for the permission of only one of them to be needed for the purposes of transplantation.

The Committee will not be surprised to hear that I believe that, generally speaking, when we can apply a default position—I would like consent to be defaulted to saving lives, but that is a debate for another day—in the event of a draw, the default position would come into play. The direct saving of life is a sufficiently strong motive to do that, as well as the additional motive of sparing the relatives later regret.

As I have previously stated, there is now research evidence, although it is limited, that many relatives who say no—for understandable reasons at the time of their maximum grief—come to regret doing so later. That does not apply to those with strong religious or personal beliefs opposing transplantation. From other research about why relatives say no, not least the potential donor audit, it emerges that these beliefs are not held by the majority of relatives who refuse consent, or are not the reasons given by the majority of those who refuse consent. When families who have refused permission later see television or newspaper stories about people who have been saved by transplantation, there is evidence that they feel regret.

That is why there is a good motivation for the default position in the case of transplantation—where there is such a strong positive outcome—to be one in which donation should occur. There is a difficulty, even under this system, when the person who refuses says that the relative in question did not want to be a donor, and the person who says yes claims never to have heard of this unregistered objection. This is why there may be merit in recording opt-outs, regardless of the system one uses.

Nevertheless, I would urge the Government to think carefully before accepting this amendment, certainly in respect of subsection (4)(b). We know that there are family disputes on this issue. The hon. Member for South Cambridgeshire has recognised the difficulty in gaining a majority of four or the unanimity of two. I think that this requirement will cause the loss of life, while not solving the disagreement within the family, but rather creating a further victim of that disagreement.

In the case of a spouse or partner, again I have sympathy with the hon. Member for South Cambridgeshire, because there is a difficulty with cases in which an estranged spouse, for example, is able to consent, thereby overruling the wishes of a current partner. I do not know how often that situation arises, or how often an estranged spouse might be present. Subsection (8)(c) refers to instances when it is not practicable to communicate with an estranged spouse. Because those circumstances would arise so infrequently, and the number of lives that could be lost for want of transplantation would be significant—one or greater—the Government should resist the amendment even in its strongest form, which is where it relates to subsection (8).

Photo of Harry Cohen Harry Cohen Labour, Leyton and Wanstead

I do not think that that is likely to be a great rarity. If a man is on his deathbed, it may well be that his estranged wife will arrive and the partner could be there as well. In that case, there would be a problem relating to who has the final say-so.

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

That is certainly possible, but we are talking about two different situations. For a heart-beating donation, there may have been a time in the intensive care unit for a gathering of the relatives. I am sceptical as to whether the situation will arise often where an estranged wife takes a different view and insists that it is worth losing the opportunity to respect the wishes of someone in a high qualifying relationship in the absence, or the presence, of an opt-in. There is also the problem that a donor registration card may be carried, which will happen in perhaps 20 per cent. of cases. Where there is a clear wish on the part of the person concerned and a draw between two people in the highest qualifying relationships, there is a danger that the amendment tabled by the hon. Member for South Cambridgeshire would mean that the person's wishes were trumped again.

The Government would have my support in resisting the amendment, but in so doing I recognise that it has a valid point to make and demonstrates how difficult some of the discussions can be at someone's

bedside. In any event, we ought to congratulate the hon. Member for South Cambridgeshire on tabling the amendment.

Photo of Rosie Winterton Rosie Winterton The Minister of State, Department of Health

The discussion highlights some of the difficulties that we get into when we try to anticipate the various situations that may arise. I appreciate that the amendment tabled by the hon. Member for South Cambridgeshire is designed to provide for possible disagreement between relatives about what should happen to a loved one's tissue and organs after he or she had died. As the hon. Member for Oxford, West and Abingdon said, there is a danger that the amendment would reduce the amount of human tissue available for valuable uses.

I want to return to the points raised by the hon. Member for Oxford, West and Abingdon because we have to be realistic about the practical difficulties. Amendments Nos. 19, 20 and 21 would make it more difficult to obtain consent in cases where several people were involved. For example, if donation for transplantation were envisaged, getting consent from all the children in a large family would probably not be worth trying. Where families are scattered, or where a person has an estranged spouse and a current partner, it would not be practical to address all those people when time is such an important factor in transplantation.

We discussed some of the issues earlier during our debate on the consent clauses, and the Bill states that the consent of only one person in each rank of the hierarchy of next of kin would make removal, storage and use of tissue from a deceased relative lawful. That is also true in the case of consent to medical treatment of a child, when the consent of only one parent is sufficient. However, the fact that it would be lawful to take tissue with the consent of one party does not make it obligatory.

I return to some of the points made by the hon. Member for Oxford, West and Abingdon. We must be realistic about what faces clinicians and professionals who are with bereaved relatives. Frankly, if there is a massive disagreement around someone's bedside, it is unlikely that the clinician will overrule the wishes of one person who may be in an incredibly distressed state because that person has a lower ranking than another. In reality, the professional concerned is not going to take a vote, and then say, ''Well, you rank higher than another person and therefore I'm going to overrule the other people.'' It is not conceivable that people would act in such a fashion.

Although we can make such provisions, I urge members of the Committee to bear in mind that in such situations people are dealing with bereaved, grieving relatives who may have their own problems at the time. This relates to our earlier discussion about presumed consent. The reality is that, as opposed to waving legislation in front of people, a judgment will be made about whether things are practical. At the time, a certain course of action just may not be appropriate.

Photo of Richard Taylor Richard Taylor Independent, Wyre Forest 4:00 pm, 3rd February 2004

I support the Minister. The code of practice, which we have already mentioned, states:

''If any of these object''— meaning siblings—

''the post mortem should not be done''.

I have done exactly as it says. I have faced the problem and, as the Minister said, it is not possible to argue the case and hold a vote at that time.

Photo of Rosie Winterton Rosie Winterton The Minister of State, Department of Health

I thank the hon. Gentleman for those comments. Overall, the framework that we have set out will assist people. However, it is up to the authority to issue guidance on how to deal with such situations through its codes of practice. It is difficult for us to envisage and include in the Bill ways of resolving those disputes. Such methods would not work in every situation.

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

I have been listening carefully to the Minister, and I accept her point, as I did earlier in the discussions about what happens when there is a donor card and families object. One cannot use the organs if that would cause severe distress to a relative. However, we must accept that things can work both ways and that doctors already face one relative saying that they would be upset if organs were not taken, because that was the wish of the person concerned, and another having a mild objection but otherwise being upset about the death. I am talking about that sort of situation, not about gross distress. Even under my system of presumed consent, significant distress on the part of a relative would be sufficient reason not to use the organ.

Photo of Rosie Winterton Rosie Winterton The Minister of State, Department of Health

The point is whether we can legislate for every situation; it is difficult. The authority can issue guidance and codes of practice, but there will always be times when people make a decision based on individual circumstances. We must respect that, and understand that it will happen on some occasions. We must ensure that there is flexibility for those who deal with people in those difficult situations.

I am grateful for the opportunity to clarify what we mean by tabling amendment No. 27. The definition of partner in clause 56(8) distinguishes partners as two persons living

''as partners in an enduring family relationship.''

We are clear that the definition does not include siblings, half siblings and other relations, who may share households but do not live as partners in that way. Having given those explanations and reassurances, I hope that hon. Members will not press their amendments.

Photo of Andrew Lansley Andrew Lansley Shadow Secretary of State for Health

I am grateful to the Minister for her response. Amendment No. 27 invites debate on the Civil Partnerships Bill. The definition of partner is ''partner''. The Minister says that I should not worry about that definition, because partner means partner and, therefore, does not mean something else. I shall not succumb to that temptation. Debate on the Civil Partnerships Bill will, no doubt, clarify the meaning of partner. It might be worth flagging up the fact that there will be a read-across to this Bill. I will make sure that my colleagues are aware of that. I am sure that the Minister will do the same for her colleagues in the Department for Constitutional Affairs.

Debate on the other amendments was useful. I hope that others think so too. It illustrated the point very well. The Minister was right to suggest that we need to bear in mind that there is a distinction between what is legally required and what will be reflected in the code of practice. As she argued, it will be excessive to require—for legal purposes—consent to be obtained from each of the persons in the qualifying relationships. My example of an estranged spouse may create some difficulties legally.

However, we need to bear in mind that, even though the code of practice will set out how that might work in discussion and guide medical staff about dealing with families in a sensitive way, legislation—like contracts—is about facing up to where people do not agree and where circumstances are difficult. I accept that, if the obligations in obtaining consent are too great and the NHS does not comply with them, there is a greater risk of litigious relatives using the structure than there is of making the obligations involved in obtaining consent too lax, and causing distress leading to litigation from those whose objections have not been complied with.

In practice, the way that the code of practice is likely to work is going to make rare those circumstances where somebody in a qualifying relationship of a close kind, who would be distressed by the retention of organs, is ignored. Even if that does happen from time to time, it will clearly not be at the behest of the NHS. It is more likely to be at the behest of other relatives, in a stronger qualifying relationship, who perhaps overbear their relative's objections. Under those circumstances, the NHS would not be liable. It certainly will not be legally liable because it will have regard to the requirements of the law.

I therefore take the point that the Minister made about the risks and the importance of getting those distinctions right. We need to be sure that the code of practice does not simply repeat the legislation. It must go beyond the legislation to guide people accurately on the range of circumstances in which they might find themselves. They need to think through precisely the circumstances that we have been debating and how they should properly respond to them. On that basis, I take the Minister's point and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

I beg to move amendment No. 178, in

clause 24, page 16, line 3, at end insert—

'(8A) Once appropriate consent under sections 2, 3 or 4 and this section has been given in relation to the body of a deceased person, a human body, relevant material from the body of a deceased person or relevant material from a human body for an activity specified in Schedule 1, such consent endures until—

(a) the person from whose body the relevant material came specifically revokes it in writing;

(b) where consent was given on behalf of a child, the child reaches 18 and specifically revokes it in writing; or

(c) the person who gave such consent specifically revokes it in writing.'.

The amendment gives us the opportunity briefly to return to the question of enduring consent. We already covered it, en passant, when debating other parts of the Bill. The amendment would clarify that once consent had been given under sections (2), (3), or (4), and sometimes in respect of qualifying relationships, that consent would endure until it is specifically revoked as set out. It is meant to probe the Government to clarify whether that is necessary. I suspect that they will resist it on the basis that it is not, although the concern is whether it is right that someone in a higher qualifying relationship can revoke consent where material has been retained and is still being used.

We dealt with the issue of the child earlier, so I will not repeat the arguments. Hopefully, the purpose of the amendment is understood. Will the Minister clarify whether the Bill will allow material for which appropriate consent was given at the time to continue to be used for research until consent is revoked as I have suggested?

Photo of Andrew Murrison Andrew Murrison Shadow Minister (Health)

The hon. Member for Oxford, West and Abingdon is right to say that the Minister will almost certainly say that the amendment is superfluous. Nevertheless, it is a good amendment because it seeks to probe some important issues.

Although I do not disagree with the proposals, I simply question whether there is a need to specify ''in writing''. In general, that would of course be absolutely right, but there have been times when consent will have been obtained not in writing. Clause 2 deals with that. That would need to be reflected, as would the possibility that the person concerned might not be in a position to revoke that consent in writing. One could adapt provisions in clause 2 to cover that possibility.

My second question concerns Gillick competence in the amendment. The hon. Gentleman has specified a child attaining the age of 18. I wonder whether he would reflect on making the child attaining Gillick competence another hurdle beyond which a child might be able to countermand consent that had previously been given.

Photo of Rosie Winterton Rosie Winterton The Minister of State, Department of Health

The hon. Member for Oxford, West and Abingdon was right to predict that we feel that the amendment is unnecessary. However, it gives me the opportunity to give him the reassurance that he is seeking.

We discussed this matter last week, but I should like to say again for the record that, where parents have given consent on behalf of children, one might expect that as those children grow up, the parents would let them know what had happened. We are clear that it will not be necessary for researchers to seek out young people at the age of 18 to check that they are content that material from their bodies should continue to be retained for research, for example. It will not be necessary either to return to adults, at intervals, to check that their consent remains—as long as it had been given properly in the first place. We strongly believe that people carrying out activities under the Bill are entitled to assume that consent endures until they have notice of revocation.

The hon. Member for Westbury made an important point about consent in writing. We have not specified the form that consent should take, except in the case of advance written consent for donation of a body, or material from it, for anatomical examination by dissection or for public display. It would therefore be odd to say that revocation of consent relating to any scheduled purpose should be in writing.

The form that consent takes in different circumstances will be dealt with as laid down in the code of practice on obtaining consent. The code will make it clear to the person giving consent that consent to storage, for example, may be for an indefinite period. Similarly, we would expect the code to cover the practical scope for withdrawing consent, and the ways of dealing with it.

There may be circumstances in which it would be good practice for the withdrawal of consent to be noted on a medical record rather than set down in writing by the person concerned. We want to ensure that the consent arrangements are practical, and that they do not place an undue burden on the NHS and certainly not on tissue banks or researchers.

Photo of Evan Harris Evan Harris Liberal Democrat, Oxford West and Abingdon 4:15 pm, 3rd February 2004

I do not think that I missed it, but I should be grateful if the Minister would clarify whether it will be possible for someone higher in the hierarchy of qualifying relationships to come along at a later date and pull rank, as it were, or does the Bill clearly state that it is the qualifying relationship at the time of consent, and that it is a one-off?

Photo of Rosie Winterton Rosie Winterton The Minister of State, Department of Health

I am sorry that I did not clarify the matter for the hon. Gentleman. The Bill refers to the appropriate relationship at the time when consent was given. It would not be possible for somebody to come along later and reverse it; otherwise incredibly complicated situations would arise. Having taken the opportunity to place on record those particular points, I hope that the hon. Gentleman will withdraw the amendment.

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

I am grateful to the Minister for her response, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause, as amended, stand part of the Bill.

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

We may have indirectly covered my point earlier through the hon. Member for Westbury, but I may be wrong. I want to probe whether there is any provision for anyone to say—in the form of an advance directive—that they specifically do not want someone to have anything to do with consent arrangements for the use of their body for research or transplantation. How would that be interpreted in relation to the clause?

If we are discussing protecting the autonomy of people from whom organs come, as the Bill should, I would hope that the Bill at least leaves open the scope for recognising advance directives. I cannot see

whether there is such an opportunity in the Bill. I do not have an amendment tabled and it may be hard to draft, but in clause 24(8) there is scope to include an additional provision that makes it clear that we recognise the autonomy of individuals to decide who makes that decision for them at a time of incapacity or after their death.

By not tabling an amendment, I have not given the Government notice, and I am sorry. We will probably need to return to the issue because I suspect that it is a talisman for wider issues surrounding advance directives.

Photo of Rosie Winterton Rosie Winterton The Minister of State, Department of Health

If an individual was worried that all the people in the qualifying relationship would do things with their body that they did not want to be done, they would have the option of nominating a representative who could make decisions. I also expect that if a person had left specific instructions, they would be taken into account. However, as I said, if there were a real fear, there is provision in the Bill for an individual to have a nominated representative whom they were confident would carry out their wishes.

Question put and agreed to.

Clause 24, as amended, ordered to stand part of the Bill.

Clauses 25 and 26 ordered to stand part of the Bill.