Human Tissue Bill

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Dr. Harris: The hon. Gentleman accepts my point. Neither he nor I accept that my amendment is better. Perhaps it would have been better if we had both tabled further amendments, such as one that said ''incidental to or further to'' medical diagnosis or treatment, or ''connected to'' that medical diagnosis or treatment. There would then have been no question of using cytological specimens from smears for a purpose

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other than education and training relating to that diagnosis or treatment—for a genetic study, for example.

It is not our direct responsibility to come up with alternative wording—the Bill will go through further stages—but it would help if we could discuss some substantive examples. I regret that my amendment did not provide a good enough example for us to work on directly.

Mr. Lansley: We can leave that question because our discussion illustrated the point. The Minister can ponder on it and respond to it.

As the hon. Gentleman suggested, the definitions of ''anatomical examination'' have been transferred unchanged into clause 56 from the Anatomy Act. We debated earlier what that means in practice; the definitions are well set out in clause 56. However, in the Anatomy Act, it was defined in relation to a specific process confined to anatomical examination. In the Bill, we are using that definition alongside a range of other purposes, and people will inevitably start to examine that and try to decide which is which. Although there has not been some mischief in the past, and we are not trying to remedy a definitional problem under the Anatomy Act, we must be sure that a definitional problem is not likely to arise in future. That would not necessarily be the case; the definition mainly rests on the question of dissection, but it might also rest on the definition of morphology. However, I do not think that I will go down that path.

Dr. Murrison: My hon. Friend's reference to morphology has woken me from my musings on other things. The point about morphology has been raised by a number of people who have corresponded with us about the Bill. There is particular concern about the definition of morphology. I believe that the meaning in the Bill is that of gross morphology—the structure, consistency and size of solid objects—but morphology means a great deal more than that. It can also concern cells, for example. My hon. Friend is right to query the meaning of morphology in the Bill; it would be nice to have that clarified.

Mr. Lansley: I am grateful to my hon. Friend. One reasons why I did not wish to pursue that subject further was that I thought that he would do it better than me.

It seems to me that it is possible that other scheduled purposes in part 1 could be pursued by way of dissection and study, including the study of the morphology of an organ or tissue. It is therefore conceivable that people might be unclear as to what is required to be treated as anatomical examination and what is not. The conclusion one should come to is that if there is any uncertainty, one must examine the activity and if it consists of dissection and is for the purposes of morphology, it must be anatomical examination and the relevant constraints must apply. It is not possible to say that something that equates to anatomical examination is a different scheduled purpose and so should escape the relevant constraints. If I am wrong, the Minister will tell me. However, if

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that is the case, there will not be many boundary problems because anything that appears to stray over the boundary is anatomical examination.

I am unsure of the intention of the hon. Member for Oxford, West and Abingdon in trying to shift the requirement for consent so that it must be given for living persons, as for deceased persons, for the purposes laid out in part 2 as well as part 1 of schedule 1. The hon. Gentleman missed the point that living people consent to treatment. He mentioned the question of implied consent, but we must judge what is implied by consent for treatment. Currently, clinical audit, education incidental to medical diagnosis or treatment, and certain aspects of quality assurance are regarded as enmeshed with the process of treatment. Therefore, it would be difficult to obtain consent for them separately without running the risk of prejudicing the treatment of someone who does not consent. The fact that they are enmeshed means that consent to treatment also implies consent to those purposes.

Part 2 of schedule 1 contains other purposes, such as the proverbial junior doctors or medical students standing round one's bed, which might be incidental to medical diagnosis or treatment but does not have to be consented to. Certain quality assurance processes or public health monitoring purposes would not automatically flow from treatment. Under those circumstances, although consent is not normally required for those purposes in general, patients should be able to withhold consent. We must be sure that the codes of practice permit the Human Tissue Authority to make clear that there are specific instances in which, although the activity may come under the scheduled purposes, patients should be able to withhold consent because it would not prejudice their treatment.

Dr. Harris: I am a little troubled. We are talking only about tissue; the Bill does not address the issue of whether medical students should be allowed to gather around patients' beds. That issue will be dealt with under common law; people have the right to say, ''No, thank you'', and there are questions about whether best practice should be always to ask. I am sorry if I was not clear, but I was trying to ascertain whether there should be a distinction between the need for definite consent to use material from a deceased person for those purposes, when the Bill makes clear that there is no need for consent to use the relevant material from a living person. Is that distinction justified?

Mr. Lansley: I understand the hon. Gentleman's point. I thought that he was coming from a different direction but, if he turns his point around, the same arguments apply. For the relevant purposes, with some exceptions, consent is implied in the consent to treatment, because the activity is enmeshed with the treatment. For a deceased person, there is obviously no longer a consent to treatment, so no limitation on the extent of the retention of organs and tissues can arise from it.

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It is therefore necessary for consent to be explicit on the retention or use of a deceased person's organs and tissues. That is the distinction between living and deceased persons that we must bear in mind. We must always remember that underlying the Bill is the common law of consent to treatment of living people, which rightly gives rise to differences to the way that the Bill treats living and deceased people.

Dr. Taylor: I have to admit that I put my name to amendments Nos. 48 and 49 because of a lack of understanding. To me, even considering clause 56, the term ''anatomical examination'' covers a post mortem. The hon. Member for South Cambridgeshire has also mentioned his confusion on that point. Schedule 1 needs clarification, and I am not sure of the basis of the difference between parts 1 and 2. Clinical audit can easily require the use of human tissue, but schedule 1 does not state that we have to have permission to do that.

Unfortunately too late to table an amendment, I realised that the Royal College of Pathologists had suggested alterations to schedule 1. Its suggestion would solve the problem by including a part 3 to cover purposes not normally requiring consent

    ''in accordance with codes of practice produced or endorsed by the Human Tissue Authority and provided that the bodily material has been lawfully removed.''

That would remove my objection.

Ms Winterton: As has been touched on, the combined effect of amendments Nos. 57 to 59 would be contrary to the main intention of the Bill. As has been said many times, the Bill arose from the distress, grief and anger felt by families when they discovered that the organs of their deceased loved ones had been removed and retained without their consent. The Bill's aim is to ensure that that does not happen again.

The requirements for appropriate consent set out in clause 1, for the purposes listed in schedule 1, give effect to the universally accepted principle that the mistakes of the past are not repeated. Clause 1 is intended to ensure that no human bodies, body parts, organs or tissue will be taken for research or other specified purposes without the consent of relatives or patients.

The amendments would have the effect of allowing the removal, storage and use of all relevant material, including organs, from the bodies of deceased persons without any form of consent from the person themselves or from their relatives or loved ones. It may be argued that the Bill allows the storage and use of tissues and organs for certain limited purposes without specific consent. The Bill allows activities for the purposes in part 2 of schedule 1 to be carried out without explicit consent for those purposes from living patients. However, that is entirely different from the situation that would result from the amendments proposed by the hon. Member for Oxford, West and Abingdon.

11.15 am

Dr. Harris: I am grateful to have the opportunity to make it clear that my intention was not to allow the removal, use or storage of organs without permission in any circumstances. I argue that the wording of amendments Nos. 57 to 59 would not do that, because the deletion of paragraphs (e) and (g) would mean that one could obtain the material only by reference to paragraphs (d) and (f) respectively. One would still have to have a scheduled purpose and the appropriate consent relating to that. One would not be able to carry out activities for part 2 purposes without already having lawful consent that was predicated on a part 1 purpose.

Similarly, the amendment in paragraph (c) to include part 1 would mean only that someone would need to have a part 1 purpose before being able to act for part 2 purposes. It would not mean that no consent was needed to remove the organs concerned. I want to make that clear and to have it explained to me why I am wrong in that respect, before the allegation is repeated.

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