|Human Tissue Bill
Dr. Taylor: I, too, crave your indulgence and guidance, Mrs. Adams, as I am new to the job.
Amendment No. 34 stands in my name and that of the hon. Member for Oxford, West and Abingdon (Dr. Harris). I echo the remarks that have been made: this could work out as a cosy sort of Committee, because there is so much agreement on ending up with the right Bill.
There is universal support for the aims of the Bill. The concerns that I have picked up from those who have written to me are largely about its wording. The Royal College of Pathologists states:
Consent in the Bill, as I read it, covers very adequately the matter of consent from the appropriate person, which is obviously very important. The Alder Hey disaster, to which we all look back, occurred not only because there was inadequate consent from the right person, but because the details of the consent were hopelessly inadequate. I look back to years of practice in hospital medicine before the Alder Hey disaster, when hospitals were judged on the post mortem ratethe number that they could performto justify their training status. That led to a perfunctory application for permission for post mortems; the junior doctors to whom the job was deputed felt that they had to get a yes from the relatives. That in turn led to inadequate practice in obtaining consent.
Column Number: 7Amendment No. 34 would clarify ''appropriate consent'' by requiring consent from the appropriate person and detail of the consent needed for different functions. That is vital, and it should be at the beginning of the Bill and give force of law to the use of adequate consent forms, for both post mortems and operations, that specify generically to what the person is giving consent.
On Second Reading, the Minister said:
A paediatric pathologist wrote to the Royal College of Pathologists:
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I ask the Committee to consider amendment No. 34 and its consequential amendments, and new clause 1.
Dr. Harris: I am grateful to the hon. Member for Wyre Forest (Dr. Taylor) for his clear exposition of the reasons behind the amendments and for putting on the record quotations from the medical research community and professional groups, so that they do not have to be repeated.
I joined the hon. Gentleman in tabling the amendments and have also tabled a new clause of my own that probes the Government's thinking in a slightly different way. There is concern that the term ''consent'' relates only to the person giving consent and that the primary legislation will not make it sufficiently clear to people who will clearly be at risk if they fall foul of the measures that they must ensure that the consent is both obtained from the appropriate person and appropriate for the intended purpose. They need to be reassured, because many functions will be carried out by people other than those who obtain the consent. We should make that point clear in primary legislation.
I say that because pathologists will carry out much of the work but rarely obtain consent from the relatives orwhen the people concerned are alivethe patient. The treating clinicianor, when appropriate, their delegateusually obtains consent. Both partiesthe person obtaining the consent and the person carrying out an activity on the relevant materialmust reach an understanding that consent is adequate for its purposes and comes from the appropriate person. I have no doubt that the Minister's response will be that the issue of consent will be clarified by the Human Tissue Authority in its code of practice and standard consent forms.
Mr. Lansley: I do not know whether the hon. Gentleman has interpreted the Bill as I have, but it is clear that, among other matters, the Human Tissue Authority will have to deal with communications with the family about the giving of consent. However, the meaning of ''consent'' is not defined in the Bill and is not one of the matters dealt with by the Human Tissue Authority under clause 23. Moreover, it is not one of the matters dealt with by clause 24. Communication with the family is the limit of the matters that are to be dealt with in the standards set out by the Human Tissue Authority. I therefore contend that it might not set out in its standards that every scheduled purpose must be specifically consented to.
Dr. Harris: I am grateful to the hon. Gentleman for making that point, particularly in regard to clause 23. I will be interested to hear the Minister's response.
The remit of the Human Tissue Authority is set out in clause 11, which is written in more general terms. However, it would be useful to know whether the Minister believed that the remit of the Human Tissue Authority and what it will cover in the code of practice would be sufficient to cover the question of consent without relying on the Secretary of State to make a post hoc amendment to the legislation.
So far, the Government have not proposed to put the issue of consent, as understood in clinical practice, on a statutory footing, and I understand the reasons for that. Nevertheless, the point that we are making in the group of amendments still stands. There is a danger either that people will be put at risk or that people will feel that they are at risk. There is an exemption in relation to the penalty clauses for those who are carrying out activities in good faithbelieving that there was consentbut any area of doubt may cause people to leave the field of such work, or to choose not to go into that area, or to minimise the number of procedures they carry out on such material. One can understand their fears, given the incidents that occurred after the Alder Hey scandal. There is a strong argument for clarifying that area in a Bill that is otherwise not very clear.
The hon. Member for Wyre Forest chose, when seeking to explain the reasons for a paving amendment that mentions
New clause 2(2) states:
However, if the Government are not minded to agree that consent for part 2 purposes should be included in consent for removal of tissue for the purposes set out in part 1, part 2 will be more important in clarifying that consent is available. The
Column Number: 10part 2 activities listed in the schedule are those in which it would be more likely to be assumed that consent had been given by virtue of the consent that had been provided to obtain the material and carry out some of the other activities. Clinical audit,
In cases in which the person concerned is alive, and in which the Government concede in clause 1 that specific consent is not required for the purposes listed in part 2, the purpose of new clause 2 is to establish whether consent has been given for paragraphs 1 and 3 to 8. Determining the cause of death would not be an appropriate purpose for which to seek consent from a living person prior to an operation, for obvious reasons. One might argue that anatomical examination might be included in that list but, as is made clear in clause 56, that can take place on a part of the body removed from a person who is alive.
I hope that I have set out the reason why we are seeking to table the amendments, and in a way additional to the points made by the hon. Member for Wyre Forest. I look forward to hearing the Minister's response to the point. I understand, from the helpful conversation that I had with someone in her team, the problem that the Government foresee, among others, around this sort of new clause. It would require those seeking consent to go into whether consent was required for all the other purposes, particularly part 1 purposes, when it might be obvious that it would be inappropriate. It is clear that there will be a restricted purpose and it is not worth going through all the other purposes to get the person giving consent to tick all the boxes.
That is not necessarily as strong an argument as it might be, because we need to ensure that in the consent process there is more openness about these issues. It would benefit society if people having operations were not protected from the things that happen in pathology labs; otherwise, we will continue to have this air of ignorance and mystery. It is relatively straightforward sensitively to explainin written form, supplemented or substituted by verbal explanation where appropriatethe sort of purposes for which material might be used, and the sort of purposes for which the health service and the scientific community might find it helpful to use, and to seek that consent in explicit terms.
There is a worry about forcing or encouraging doctors and patients or relatives to go through some of these purposes, but that is exactlyeven in a tick-box sort of waythe sort of position we need to be moving towards if we are going to make these sorts of things more explicit. I hope I am not pre-empting or
Column Number: 11misrepresenting some of the arguments the Minister will use, but I thought I should get my rebuttal in first, to save time.
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