New Schedule 2 - 'Section 46: Supplementary

Human Tissue Bill – in a Public Bill Committee at 2:45 pm on 5th February 2004.

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Part 1

Qualifying consent

1 This Part of this Schedule makes provision for the interpretation of ''qualifying consent'' in section 46(1)(a)(i).

2 (1) In relation to analysis of DNA manufactured by the body of a person who is alive, ''qualifying consent'' means his consent, except where sub-paragraph (2) applies.

(2) Where—

(a) the person is a child,

(b) neither a decision of his to consent, nor a decision of his not to consent, is in force, and

(c) either he is not competent to deal with the issue of consent or, though he is competent to deal with that issue, he fails to do so,

''qualifying consent'' means the consent of a person who has parental responsibility for him.

(3) In relation to analysis of DNA manufactured by the body of a person who has died an adult, ''qualifying consent'' means—

(a) if a decision of his to consent, or a decision of his not to consent, was in force immediately before he died, his consent;

(b) if paragraph (a) does not apply, the consent of a person who stood in a qualifying relationship to him immediately before he died.

(4) In relation to analysis of DNA manufactured by the body of a person who has died a child, ''qualifying consent'' means—

(a) if a decision of his to consent, or a decision of his not to consent, was in force immediately before he died, his consent;

(b) if paragraph (a) does not apply—

(i) the consent of a person who had parental responsibility for him immediately before he died, or

(ii) where no person had parental responsibility for him immediately before he died, the consent of a person who stood in a qualifying relationship to him at that time.

3 (1) In its application to Scotland, paragraph 2 has effect with the following amendments.

(2) In sub-paragraphs (2) and (4)(b)(i) and (ii), for ''parental responsibility for'' there is substituted ''parental responsibilities in relation to''.

(3) At the end there is inserted—

''(5) In this paragraph—

''adult'' means a person who has attained the age of 16 years;

''child'' means a person who has not attained the age of 16 years;

''parental responsibilities'' has the meaning given by section 1(3) of the Children (Scotland) Act 1995 (c.36).''

Part 2

Use for an excepted purpose

4 This Part of this Schedule makes provision for the interpretation of ''use for an excepted purpose'' in section 46(1)(a)(ii).

5 (1) Use of the results of an analysis of DNA for any of the following purposes is use for an excepted purpose—

(a) the medical diagnosis or treatment of the person whose body manufactured the DNA;

(b) purposes of functions of a coroner;

(c) purposes of functions of a procurator fiscal in connection with the investigation of deaths;

(d) the prevention or detection of crime;

(e) the conduct of a prosecution;

(f) purposes of national security;

(g) implementing an order or direction of a court or tribunal, including one outside the United Kingdom.

(2) For the purposes of sub-paragraph (1)(d), detecting crime shall be taken to include—

(a) establishing by whom, for what purpose, by what means and generally in what circumstances any crime was committed, and

(b) the apprehension of the person by whom any crime was committed;

and the reference in sub-paragraph (1)(d) to the detection of crime includes any detection outside the United Kingdom of any crime or suspected crime.

(3) In sub-paragraph (1)(e), the reference to a prosecution includes a prosecution brought in respect of a crime in a country or territory outside the United Kingdom.

(4) In this paragraph, a reference to a crime includes a reference to any conduct which—

(a) constitutes one or more criminal offences (whether under the law of a part of the United Kingdom or a country or territory outside the United Kingdom),

(b) is, or corresponds to, conduct which, if it all took place in any one part of the United Kingdom, would constitute one or more criminal offences, or

(c) constitutes one or more offences of a kind triable by court-martial under the Army Act 1955 (3&4 Eliz.2 c.18), the Air Force Act 1955 (3&4 Eliz.2 c.19) or the Naval Discipline Act 1957 (c.53).

(5) Sub-paragraph (1)(g) shall not be taken to confer any power to make orders or give directions.

6 Use of the results of an analysis of DNA for any of the following purposes is use for an excepted purpose if the bodily material concerned is an existing holding—

(a) clinical audit;

(b) determining the cause of death;

(c) education or training relating to—

(i) human health, or

(ii) research in connection with disorders, or the functioning, of the human body;

(d) establishing after a person's death the efficacy of any drug or other treatment administered to him;

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

(f) public health monitoring;

(g) quality assurance;

(h) research in connection with disorders, or the functioning, of the human body;

(i) transplantation.

7 Use of the results of an analysis of DNA for any of the following purposes is use for an excepted purpose if the bodily material concerned is from the body of a living person—

(a) clinical audit;

(b) education or training which is incidental to medical diagnosis or treatment;

(c) public health monitoring;

(d) quality assurance.

8 Use of the results of an analysis of DNA for a purpose specified in paragraph 6 is use for an excepted purpose if the use in England and Wales, or Northern Ireland, for that purpose of the bodily material concerned is authorised by section 1(1) or (7)(c).

9 Use of the results of an analysis of DNA for the purpose of research of a kind mentioned in subsection (1) of section 51 of the Adults with Incapacity (Scotland) Act 2000 (surgical, medical, nursing, dental or psychological research) is use for an excepted purpose if the carrying-out in Scotland of the research is authorised under that section.

10 The Secretary of State may by order amend paragraph 5, 6 or 7 for the purpose of—

(a) varying or omitting any of the purposes specified in that paragraph, or

(b) adding to the purposes so specified.'.

—[Ms Rosie Winterton.]

Brought up, read the First and Second time, and added to the Bill.

Clause 58 ordered to stand part of the Bill.

Schedule 7 agreed to.

Clause 59 ordered to stand part of the Bill.

Schedule 8 agreed to.

Clause 60 ordered to stand part of the Bill.