Group 4 is on the prohibition of the use of body parts for transplantation. If members look at the list of groupings, they will see the pre-emptions. Amendment 15, in the name of Nanette Milne, is grouped with the amendments shown in the papers.

I will speak principally to amendments 15 and 17, because the others are all consequential on Amendment 15. If the amendments appear to be somewhat complicated, that is because they reflect the complexity of the bill.

The amendments would enable a person to register Opposition to the removal of a body part after death for the purpose of transplantation, research, education, training or audit. They would give the choice actively to prohibit the removal of a body part as well as actively to authorise it. They address the potential problem that would face a person who does not know his nearest relatives and so cannot make his wishes known to them, or who does not trust them to act on his wishes. Without the amendments, such a person could not prevent unknown or unreliable relatives from making the decision to have body parts used after death against the person's wishes.

We feel that the absence of a fail-safe mechanism to allow people to record their wishes, whether positive or negative, is a cause for concern. The amendments would allow for everyone's wish to be respected and accepted, and would prevent an unethical situation arising should a decision go against the real wishes of a deceased person.

Apart from amendment 17, the amendments in the group are consequential on amendment 15.

They mirror the structure of the bill, so that each time the authorisation process is mentioned, the choice of prohibiting authorisation will also be mentioned.

The amendments do not apply to children who are under the age of 12, but they do apply to those who are aged between 12 and 16. If children who are between the ages of 12 and 16 can authorise, it is logical that they should also be allowed to prohibit donation.

The amendments also reach into the area of checking the relevant paperwork after death, to ensure that medical practitioners check for prohibition as well authorisation before removing body parts for transplantation and so on.

Amendment 17 addresses the situation that could arise if conflicting mandates are in place. It makes it clear that the terms of the later authorisation should be followed. For example, if the first mandate stated that all organs could be donated following death, and then another was drawn up afterwards that stated that all organs could be donated apart from the corneas, the latter would be acted upon as reflecting the true wishes of the deceased person.

The amendments do not seek to introduce a register for prohibition because, as was made clear in evidence to the Health Committee, there are many ways of registering authorisation, whether through the donor register, verbally or in writing; therefore, neither should notice of prohibition be limited to a register. Again, that mirrors the provisions in the bill. However, the bill does not prevent the setting-up of a register and the issue could be revisited in future if necessary.

It seems to me only right that people who feel strongly about the matter should be given the opportunity to record their opposition to the removal of some or all of their body parts for the purposes stated in the bill.

I move amendment 15.

I read the amendments with interest, and I believe that they would add an unnecessary level of complication. If the individual wishes to prohibit the use of all their body parts, they need only not actively authorise use, and there are other methods by which someone who does not wish one or more of their body parts to be used, but is quite prepared for other parts to be used, can make that clear without having a level of complication in the bill that puts the use of certain body parts on a sort of statutory basis. I fail to see why the bill would need to go into such a level of complication and detail when, if an individual does not wish a particular body part to be used, they can express that very clearly to their relatives during their lifetime.

Although I understand the intention behind the amendments, they would lead to a level of complication and difficulty in the bill—and perhaps to some unforeseen circumstances in certain aspects of the day-to-day working of the bill—that would be unfortunate. In times to come, we might need to revisit the subject if clear difficulties arise from the practical application of the bill. However, at this stage, I am not minded to support the amendments.

Nanette Milne's amendments respond to very serious discussions at stage 1, but I do not believe that they are necessary or appropriate. I do not think that we should extend the organ donor register to become a register of both authorisations and prohibition; nor should we set up and run a separate register of organ donation prohibitions. Whichever vehicle was used to implement the amendments, it would run directly counter to the purpose of the bill, which is first and foremost to support people's wish to do something positive after their death. That is the principle behind authorisation.

I recognise that there are people who do not want parts of their bodies to be used for the purposes in the bill and who might feel strongly about that. I fully accept the principle that their wishes should be respected, but I am confident that the bill will allow such objections to donation to be respected. The first safeguard in the bill is that nothing can happen if there is no authorisation by the person, or by their nearest relative or a person with parental rights and responsibilities. There can be no transplantation by default, nor—because of the decision that we made a few minutes ago—can there be any transplantation on the basis of presumed consent. The bill underlines that by bringing criminal sanctions to bear. If a clinician were to proceed without authorisation, they would face stiff penalties, including a fine or imprisonment, or both.

Where there is no record of the person's wishes, we seek to address the concern that a family member might sanction a donation through ignorance by placing responsibility for authorisation on the person who was closest to the deceased in life and so is most likely to have the greatest awareness of the deceased's attitude to the issues.

Section 7 makes it clear that where the nearest relative has "actual knowledge" that the person was unwilling for any part of their body to be used for transplantation, they must not give authorisation. The reality is that people who feel strongly about such matters will not keep their feelings to themselves. They will share their views with their family and friends. If their views have a religious dimension, they will no doubt share them with others of the same faith. It is hard to envisage strong views on such a matter being unknown to any of those who might be asked.

That would leave only the highly unusual case of a person living in isolation, either without any surviving relatives or, for some reason, unable or unwilling to mention to anyone close to them their own strongly held views on such matters. Of course, if people in that position object to organ donation, their wishes should be respected as much as anyone else's, but I do not believe that recording those wishes in a register set up for that purpose, or in the organ donor register, is the way to do that. In such cases, people can set out their wishes in their will, and they can also ensure that their views are reflected in the medical record held by their general practitioner.

I think that the medical record is the best place for such views to be recorded, because if there was the possibility of somebody becoming an organ donor, the clinician would either contact that person's GP or, if they were unable to do that, consult the person's medical record. No clinician will proceed with a transplant involving an organ about which he or she is not fully informed. Recording wishes in that way is the key and can already be done routinely, either verbally or by writing to one's GP setting out one's objections and asking for the letter to be added to the medical record.

I understand the concerns behind Nanette Milne's amendments, and I am happy to offer guidance to GPs to ensure that they include any such objection in a patient's record. I will tell GPs that any such objections should also be included in the extract from medical records that they provide to NHS 24. In the near future, the introduction of the electronic health record will provide a further vehicle by which an objection recorded by a GP can be accessed readily by a transplant co-ordinator seeking a donor. In addition, we are working with the General Medical Council on including in its "Good Medical Practice" guidance, which applies to all doctors, a provision making clear a doctor's duty to respect the wishes of his or her patients after death.

I ask Nanette Milne to consider withdrawing her amendments on the basis of the assurance that I have been able to give today.

I lodged the amendments in the group precisely to deal with the isolated people whom the Minister mentioned—people who do not have relatives in this country or close by to whom they have been able to express their wishes, and who feel strongly about not donating their organs. It has been made quite clear to me by the Scottish Council on Human Bioethics that there are people who are currently considering withdrawing their names form the organ donor list if the bill is not amended to take account of the fact that some of them specifically do not want to donate certain organs, because they feel so strongly about the issue. It would be regrettable if a bill that attempts to increase organ donation were to lead to the loss of even two or three donors. I appreciate what the minister has said about offering guidance, but I will press Amendment 15.

The question is, that Amendment 15 be agreed to. Are we agreed?

Members:

No.

There will be a Division.

Division number 3

For: Aitken, Bill, Brocklebank, Mr Ted, Brownlee, Derek, Davidson, Mr David, Douglas-Hamilton, Lord James, Fergusson, Alex, Goldie, Miss Annabel, Johnstone, Alex, McLetchie, David, Milne, Mrs Nanette, Mitchell, Margaret, Scanlon, Mary, Tosh, Murray
Against: Arbuckle, Mr Andrew, Baillie, Jackie, Baker, Richard, Ballance, Chris, Barrie, Scott, Brown, Robert, Butler, Bill, Canavan, Dennis, Chisholm, Malcolm, Craigie, Cathie, Crawford, Bruce, Cunningham, Roseanna, Curran, Ms Margaret, Eadie, Helen, Fabiani, Linda, Ferguson, Patricia, Finnie, Ross, Gibson, Rob, Glen, Marlyn, Gordon, Mr Charlie, Gorrie, Donald, Harvie, Patrick, Henry, Hugh, Hughes, Janis, Jackson, Dr Sylvia, Jackson, Gordon, Jamieson, Cathy, Jamieson, Margaret, Kerr, Mr Andy, Lamont, Johann, Livingstone, Marilyn, Lochhead, Richard, Lyon, George, MacAskill, Mr Kenny, Macdonald, Lewis, Macintosh, Mr Kenneth, Martin, Paul, Mather, Jim, Matheson, Michael, Maxwell, Mr Stewart, McCabe, Mr Tom, McConnell, Mr Jack, McMahon, Michael, McNeil, Mr Duncan, McNulty, Des, Morgan, Alasdair, Morrison, Mr Alasdair, Mulligan, Mrs Mary, Munro, John Farquhar, Murray, Dr Elaine, Oldfather, Irene, Peacock, Peter, Peattie, Cathy, Purvis, Jeremy, Robison, Shona, Robson, Euan, Rumbles, Mike, Scott, Eleanor, Smith, Elaine, Smith, Iain, Smith, Margaret, Stevenson, Stewart, Swinburne, John, Welsh, Mr Andrew, White, Ms Sandra, Whitefield, Karen, Wilson, Allan

The result of the Division is: For 13, Against 67, Abstentions 0.

Amendment 15 disagreed to.

Amendment 16, in the name of John Farquhar Munro, has already been debated with amendment 11. I ask John Farquhar Munro to indicate whether he intends to move amendment 16.

I do not intend to move Amendment 16. There is also a list of amendments in my name further on in the marshalled list, and I would like to withdraw all those amendments at this stage.

That is a good idea, but I am afraid that I cannot allow you to do that. However, I will be as quick as I possibly can be when I come to that point in the proceedings.

I just thought that it might save us some time.

It would have done and I am grateful for your suggestion, but I am afraid that we have to have each decision to move or not to move amendments properly recorded.

Amendments 16 to 23 not moved.