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Duties in relation to persons who stood in a qualifying relationship
Dr Evan Harris
NC5
To move the following Clause:—
'(1) It shall be the duty of the person to whom the duty under section [determination of consent for removal, storage and use of organs from adults for purpose of transplantation] applies to—
| (a) | inform the person or persons who stood in a qualifying relationship to the deceased immediately before the death of the deceased of his rights under this section, and |
| (b) | to provide him or them with an opportunity to exercise those rights. |
(2) Those rights are—
| (a) | to be informed about the operation of relevant provisions of this Act, and |
| (b) | to signify an objection to the removal of a relevant organ for a reason specified in subsections (3) to (5). |
(3) The reason specified in this subsection is that the deceased person had expressed his wish to make all his organs, or a relevant organ, unavailable for removal for the purpose of transplantation even though he had not informed the Authority for the purpose of the making of an entry in the register.
(4) The reason specified in this subsection is that—
| (a) | the deceased person had expressed his wish to make all his organs, or a relevant organ, unavailable for removal for the purpose of transplantation, and |
| (b) | he had informed the Authority accordingly, but |
| (c) | a relevant entry had not been made in the register. |
(5) The reason specified in this subsection is that the removal of a relevant organ for the purpose of transplantation would cause significant distress to any person who stood in a qualifying relationship to the deceased immediately before his death.
(6) The qualifying relationships for the purposes of this section are—
(7) The qualifying relationships shall be ranked in the order given in subsection (6) for the purposes of subsection (1).
(8) Relationships in the same paragraph of subsection (6) shall be accorded equal ranking for those purposes.
(9) The duty under subsection (1) shall apply in relation to the person or persons whose relationship to the person who has died is accorded the highest ranking in accordance with subsections (6) to (8).
(10) If two or more persons are accorded equal ranking in accordance with subsections (6) to (8), the duty under subsection (1) shall apply to all of the persons accorded that ranking.
(11) In applying the principles set out above for the purposes of subsection (1), a person's relationship shall be left out of account if—
| (a) | he does not wish to exercise his rights under this section, |
| (b) | he is not able to exercise those rights, or |
| (c) | it is not reasonably practicable to communicate with him within the time available before the organ or organs must be removed.'. |
Removal of relevant material following death
Dr Evan Harris
NC6
To remove the following Clause:—
'(1) No removal from the body of a deceased person, for use for a scheduled purpose, of any relevant material of which the body consists or which it contains shall be effected except by a registered medical practitioner, who must have satisfied himself by personal examination of the body that life is extinct.
(2) For the purposes of this section"relevant material" does not include eyes or parts of eyes.'.
NEW SCHEDULES
Ms Rosie Winterton
NS2
To move the following Schedule:—
'Section 46: Supplementary
Part 1
Qualifying consent
Introductory
| 1 | This Part of this Schedule makes provision for the interpretation of "qualifying consent" in section 46(1)(a)(i). |
Qualifying consent
| 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. |
(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. |
Application to Scotland
| 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— |
"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
Introductory
| 4 | This Part of this Schedule makes provision for the interpretation of "use for an excepted purpose" in section 46(1)(a)(ii). |
Purposes of general application
| 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. |
Purposes relating to existing holdings
| 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— |
(b) determining the cause of death;
(c) education or training relating to—
| (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;
(h) research in connection with disorders, or the functioning, of the human body;
Purposes relating to material from body of a living person
| 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— |
(b) education or training which is incidental to medical diagnosis or treatment;
(c) public health monitoring;
Purpose authorised under section 1
| 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). |
Purpose authorised under the Adults with Incapacity (Scotland) Act 2000 (asp 4)
| 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. |
Power to amend paragraphs 5 to 7
| 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.'.
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