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Mr. Swayne: A point was put to me by Professor Engeset in Aberdeen. His contention is that we are missing a number of potential donors, whom we would have had in the past, because of the development of technology. He stated--it was subsequently confirmed to me by other members of the British Medical Association--that an accident or stroke victim might be scanned at a regional centre and the result of that scan sent down the telephone wire to the consultant at the other end, who might take one look and say, "There is no hope for that patient," so that patient would never make it to the ventilator, as he would have in the past. Hence, we will have lost a potential donor, whom we would otherwise have had. That matter needs to be looked at.

Ms Stuart: If I understand the hon. Gentleman correctly, he is suggesting that we move away from a policy where an assessment is made of whether the patient will survive, a medical intervention is then made to save his life and, if that is unsuccessful, organ donation comes into play. He is suggesting that we should take action to prolong what appears to be life in the interests of securing an organ donation. France went down that road for a brief period and it was successfully challenged in the courts. For about four years, the number of donations dropped. It took France a long time to get the number back up. The public must have confidence that, within the NHS, everything is done to save a patient's life. If that is not possible, we make it possible for organs to be donated,

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but not before that. That would be a very dangerous step and I would be very wary of going down that road. I do not think that it is suggested in the Bill.

Mr. Swayne: The hon. Lady is right; it has nothing to do with what is proposed in this narrow Bill. However, she will know of my enthusiasm for elective ventilation. The procedure was successfully carried out in this country and withdrawn as a result of legal doubts, but those doubts can be addressed by a change in the law. It is a review of that--

Madam Deputy Speaker (Mrs. Sylvia Heal): Order. The hon. Gentleman must confine his remarks to what is in the Bill.

Ms Stuart: I will return to that point in the context of the Bill.

We know from looking at what is effective abroad that altering the legislative framework will not solve the shortage of organs. That is important. It is not the legislative framework that is preventing us from having more organ donors. The real question is whether a change to presumed consent, which some hon. Members suggested, would change things. There is no evidence in other areas of the world that such a change has been successful.

Currently, we operate a system where specific consent, or at least a lack of objection by relatives, must be established prior to donation. It is an opt-in system. Opportunities are offered via donor cards and the organ donor register for those who would be willing to be donors to opt in and to record their wishes. Regardless of whether that has been done, those close to the deceased will be consulted. When the deceased's wishes are known, families will nearly always agree to allow donation to go ahead.

The opt-in system is widely supported. In a survey conducted in July 1999, 68 per cent. said that they would be willing to donate under the current system. Now an opt-out system is being advocated, whereby consent is presumed unless the deceased has recorded an objection. Spain has been cited as the country with the highest donation rate in Europe. It is true that it has an opt-out law, but it has never been used and consent is still sought there. In France, where the opt-out system was tried, there was a huge public backlash. The right way forward is to continue to seek informed consent from those closest to the deceased.

The expert committee's report was clear. It said:

Currently, most health professionals with experience in the donation and transplantation process, most notably the transplant co-ordinators, do not support a change to opt-out.

More importantly, the debate is now considered less relevant by most transplant organisations, because relatives or friends are asked as part of the screening process about the donor's recent medical history. If they object to donation, organs will not be retrieved, whatever the legal framework. Permission for donation for transplantation is always sought explicitly from those

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close to the potential donor. They are asked to agree that the organs may be used for medical or scientific research if they prove unsuitable for transplantation.

Organs taken for transplantation cannot be used for research without specific permission from the donor's family. Transplant co-ordinators who seek consent consider that keeping the family informed throughout and giving them feedback on the use of organs is fundamental to the process. We will seek to ensure that current good practice on gaining consent for donation for transplantation is applied to all aspects of organ and tissue donation and retention for other purposes, such as diagnosis research and medical education.

The Bill offers some apparently minor changes to the Human Tissue Act 1961 intended to clarify it and improve the supply of organs for transplantation. Of course, we all endorse that objective, but the 1961 Act provides the basis not only for organ transplantation but for hospital post mortems and the removal, retention and use of organs and tissue at post mortem for medical education and research purposes.

The interim report of the Bristol inquiry and the Alder Hey inquiry report have both demonstrated difficulties with the 1961 Act, which has been described as arcane and complex. It has also been suggested that practitioners working in the field have little knowledge or understanding of its provisions. The chief medical officer's advice to the Government recommended short-term changes to the Act to clarify that parental consent is needed, rather than lack of objection, for the removal, retention and use of human organs and tissue taken from a deceased child. It also recommended that, as part of an urgent reform of the law, an offence should be introduced for not complying with such provisions. We have accepted that recommendation. As my right hon. Friend the Secretary of State said in his statement on 30 January, we intend to introduce legislation to give effect to the recommendation as soon as the parliamentary timetable allows.

The chief medical officer also recommended a more wide-ranging revision of the law on the taking, storage and use of tissue from the living and the dead for therapeutic purposes, for research and for education. The work to underpin that will be undertaken in the next six to 12 months in consultation with a wide range of stakeholders. In both proposed reviews of the law, the intention is to address the main deficiencies of the Human Tissue Act 1961, to restore public confidence in the operation of that law and to ensure that organs and tissue are available for both transplantation and vital medical research, while ensuring that the wishes and feelings of families are respected. The specific changes before us today need to be considered as part of the major revision of the law that is needed to bring it into the 21st century.

Clause 3 proposes the inclusion of cohabiting partners and we agree with the intention behind the Bill's proposals to extend the categories of those who should be consulted about donation to the cohabiting partners of the deceased. I was extremely moved by the contribution of the hon. Member for Brent, North (Mr. Gardiner), who vividly illustrated that attempting to define relationships on forms is very difficult and can sometimes be extremely insensitive to people in distress. Currently, there is no provision for cohabiting partners to be consulted and this

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seems inappropriate when so many people are not married to their long-term partners. Surely those partners should be considered to be the equivalent of a spouse or close relative in this case. However, it is not a simple matter to alter--for example, there are questions of conflicts between partner and legal spouse or partner and parent. We plan to consider the categories of those to be consulted as part of the wider ranging consultation on the Human Tissue Act.

Clause 1 refers to those in lawful possession of the body. The right hon. and learned Member for Rushcliffe proposes an immediate change to the definition of the person lawfully in possession of the body. In practice, the health authority or NHS trust is assumed to be in possession of the body, and its staff authorise the donation. However, the chief medical officer's report did not identify this phrase as causing any difficulty, and certainly it has not been presented as an issue that requires urgent action.

The proposal about the preservation of parts of the body is intended to facilitate the practice of non-heart-beating donation. I have a sense that hon. Members are not drawing a clear distinction between non-heart-beating donations and ventilation for the purpose of keeping a body alive. A debate on that would have to be wide-ranging and, as the right hon. and learned Gentleman said, it would not divide down party lines as it touches on deep issues.

It is important to put on record that most organs for transplantation are taken from those who die while on life support--hence with still beating hearts--in an intensive care unit. It is important to understand that very few people die in such circumstances, and only a proportion of those, for medical reasons, will be suitable to be become donors. However, it is sometimes possible to accept kidneys from those whose hearts have stopped beating. There is a brief window of opportunity--during the first 40 minutes after the heart stops--when the kidneys can be retrieved and used for transplant. This so called non-heart-beating donation can go ahead if the organs are preserved by being cooled in the body once death is pronounced. The preservation process will continue until the family gives agreement and the organs are retrieved. It will cease when the time limit is reached and attempts to reach the family have failed or when the family decides that it does not want the donation to go ahead.

As part of the Government's plan to increase the availability of kidneys for transplantation, we have recently undertaken to support increased use of non-heart-beating donors. We are not ignoring that proposal, but looking to develop it in a more sensitive way. Three transplant units have successfully run non-heart-beating donation programmes for some years. The right hon. and learned Gentleman mentioned the one in his part of the world. They have all done so after full and lengthy public consultation which made the process transparent and tested out its acceptability.

The British Transplant Society is currently drafting a protocol on non-heart-beating donation to present to the Department of Health for wide consultation. This is a sensitive and complex subject which will require negotiation with the coroners services, which is of course the responsibility of the Home Office, and careful

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consideration of how to maintain public confidence. It is not an area in which hasty action is likely to lead to progress; nor would legislation necessarily be helpful.

Anxieties were expressed in the media immediately after the Alder Hey report that publicity surrounding organ and tissue retention post mortem, without the express consent of patients and parents, would have a negative effect on our organ transplant programmes. The latest figures for UK transplants do not support that contention. The number of donors in February was exactly the same as in February 2000. There was, in addition, an encouraging difference over the period in that there was a huge increase in the number of people joining the organ donor register. Some 80,000 joined it in February.

There is no evidence of any negative impact from Alder Hey on organ donation for transplantation or on tissue donation for medical research. However, even if there is no additional crisis, there remains a chronic shortage of organs. Keeping public confidence in the donation system is vital to the transplantation service.

Improving donation is about changing attitudes and behaviour. I do not believe that that will best be done by legislation. However, I welcome the opportunity offered by today's debate to discuss an important issue and to inform the House of what is in train to improve organ donation. On balance, given what I have said, the Government are not minded to agree to the Bill.

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