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Mr. Clarke: I am grateful to my hon. Friend and I am sure that he is right. In the present circumstances, there has to be only a hint of a possible legal problem and the slight possibility of litigation in this highly sensitive area for everyone to be seriously deterred from carrying out transplants.
As I am tackling a very small difficulty, the Bill does not open up any of the wider issues that would arise from a thorough review of the subject. Big ethical issues
surround organ transplantation, and I have no doubt that if the Government decide to change the law after their review, they will find themselves considering such difficult matters as the presumed consent of those who have died, so that organs may be taken unless there is evidence that consent has not been given. They will have to address the law on living donors--those who willingly donate a kidney to a relative or friend. When the Government finish their review, they will find themselves in a difficult position, and I trust that they will introduce legislation to advance on the provisions of the Human Tissue Act 1961. That will not be easy.I took the Human Fertilisation and Embryology Act 1990 through the House as Secretary of State for Health, and laws of that kind give rise to wide and far-ranging debate. They cut right across ordinary political divisions, giving rise to endless free votes and anxious discussion in the House. I have not addressed such wide issues in this Bill. It would have been reckless to do so, and the legal change that I propose falls strictly within the confines of present practice.
I emphasise that the Bill does not touch on present practice. No organ transplantation can take place from a cadaver unless those taking part are satisfied that the person who had died would have been willing for that to happen. No transplantation can take place unless reasonable steps have been taken to ensure that consent has been obtained from close relatives. That can be difficult and sensitive in itself, of course, as the relatives involved are normally at their most distressed and least clear-thinking at the time when a doctor, nurse or other member of hospital staff must explain matters to them.
The Bill addresses narrow points and does not change present practice at all. Clause 1 tries to address a slight doubt about the wording of the 1961 Act. The Act refers to what a "person lawfully in possession" of a body may do to facilitate transplantation. That has never been challenged in court, but continual doubts are raised about who the person lawfully in possession is. In practice, it is usually thought to be the health authority, until someone asks for the body to be placed in his or her custody as the closest relative. There is no reason for any doubt to exist. My Bill would substitute the words
- "health authority or NHS trust"
Clause 3 covers a similar point. The 1961 Act rightly says that reasonable steps should be taken to ensure that those who carry out the procedure have the consent of surviving relatives. In practice, that gives a surviving relative the legal right to stop the process going ahead. That sounds fine, until one realises how wide the term "surviving relative" goes. Does it include uncles, aunts and cousins? Does it include relatives who fell out with the deceased some time ago and may have had no contact with him or her for many years? Does it include a relative who may have been antipathetic to the person who has died?
The point has not yet arisen, but it is possible that some unfortunate medical team will find themselves challenged by, say, a long-lost brother who had fallen out with the deceased but who may make his own ethical objection to the procedure being carried out. In theory, that brother could override the wishes of the deceased.
Clause 3 makes a simple change by saying that consent should be sought from a co-habiting spouse or partner, or, in the absence of a spouse or partner, a parent or child of the deceased person. That does not mean that any other close relatives or friends must have their wishes ignored. There is nothing to stop any sensible medical team from listening carefully to the wishes and views of anyone who presents himself or herself. The law should specify the position of the surviving spouse or partner or, in the absence of any spouse or partner, the parent or child.
The one change that I seek to make in the law, although not necessarily in practice, is in clause 2. Otherwise, I regard the Bill as a clarification of the present position. Clause 2 deals with the position when a patient's heart is not beating. I will not go into the full medical details, but in practice nowadays, most donors whose organs are used are people who died when they were being ventilated in an intensive care unit. Relatives are faced with the distressing situation that the patient has been conclusively established to be brain dead, but the body is still breathing and warm in an intensive care unit. In such circumstances, once consent is properly obtained, organs are available that can be transplanted to a patient in need. In practice, due to the problems that I have described, even then only about a third of such cases lead to organ transplantation. That gives rise to the need for the wider review to which I have already referred.
One practice can sometimes be carried out on non-heart-beating patients, when someone suffers a cardiac arrest and dies. Although the heart ceases beating, the organs are perfectly usable. They need to be preserved in a usable condition while steps are taken to find out whether the person was a willing donor and whether the relatives are content for the operation to go ahead. A simple practice can be adopted in accident and emergency departments and elsewhere of inserting a catheter into the kidneys which cools them and preserves them for a sufficient period for them to remain usable. The time is needed to allow sensitive inquiries to be made about whether the dead person was a willing donor and whether the relatives will consent to the operation.
The practice is carried out in a few places in this country and it has been carried out overseas. A successful programme in Leicester near my constituency provides about 25 per cent. of the organs used for kidney transplant. Occasionally, legal doubts have been raised about the practice. Insertion of the catheter is a medical procedure that is not for the benefit of the patient who, alas, is by definition dead and not able to benefit from it. I regard that as a slightly fanciful legal argument. Given the fairly liberal view that the British courts take of these things, it would be unlikely to succeed if it were ever pressed. Yet doctors are deterred by the fact that someone with strange views may take legal action against them. Clause 2 deals with that possibility by allowing the preservation of organs at the appropriate stage to give time for consent to be obtained.
Mr. Desmond Swayne (New Forest, West): Precisely that argument was used by the Department to bring to an end the programme of elective ventilation that was undertaken by Professor Feest. It is not a fantasy of doctors' imaginations that that legal argument might be used against them; it has been used in the past.
Mr. Clarke: It has not been used in cases of catheter insertion, but my hon. Friend is right to say that the
Department often takes an extraordinarily cautious view of the law on these matters. No doubt it would argue that it has to protect itself against a possible scandal in which it allowed procedures to go ahead about which someone chose to complain.I have explained the purpose of the Bill. I have the support of the British Medical Association ethics committee. Everything that I have said is in line with the BMA's publications. I have discussed the Bill with the General Medical Council, which is extremely supportive. I am not aware of any opposition to my proposals. I have deliberately kept them exceedingly modest, which no doubt explains the lack of opposition to them. If one comes seventh in the private Members' Bill ballot in a Parliament that is not likely to last more than a few weeks longer, to be modest in one's ambitions is the only sensible way to proceed.
I am not sure whether the Government harbour the slightest objection to any of the changes I propose making; a meeting I had with one of the Minister's colleagues leads me to anticipate that they do not, but remain likely to hesitate about the Bill. If I may, I shall anticipate the argument that the Government are likely to advance. They are likely to say that they are reviewing the whole subject, including the 1961 Act, and that it would be premature to go ahead with any changes until the review is completed. That will not be the first time I have heard such a Government response to a modest private Member's Bill, but the argument has never struck me as sensible.
The fact is that when the Government have finished their review, they will produce a Bill for which they will have great difficulty finding parliamentary time. Whichever party is in power, the Leader of the House and the Whips Office will say that the Bill will take up weeks of parliamentary time and upset some hon. Members who have big issues about the subject. Once that Bill enters the parliamentary timetable, it will indeed take time, because Members of Parliament are greatly divided on the issue of presumed consent, for example, which has been raised in connection with previous private Members' Bills.
If the Minister rises to say that, although the Government are terribly sympathetic, they want to wait for the results of the review and for fresh legislation to be introduced in due course, my guess is that the whole process will take years. I will not regard that as a wholly satisfactory reply to a Bill that makes such tiny changes to the 1961 Act. It will certainly not be an adequate reply if no one has thought of any reason to oppose the changes and cannot find an opponent to any of my proposals.
I see that the Minister wishes to intervene. Although I look forward to hearing her speech soon, if she wants to intervene before I resume my seat, I am happy to give way.
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