Human Tissue Bill

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Ms Winterton: The hon. Gentleman argued that because, with a living patient, consent for the purposes in part 2—purposes not normally requiring consent—will be deemed to have been given, the activities should be able to go ahead anyway if the person is deceased, for the purposes of clinical audit, education or training, public health monitoring and quality assurance.

The Government expect best practice to mean that if tissue, blood and so on is taken and the samples are to be used for the purposes in paragraphs 9 to 12 of schedule 1, information will still be given that that may happen. Best practice involves, for example, putting leaflets in waiting rooms to say that if a blood sample is given, it may be used for certain purposes. That means that if people have an objection, they can register it.

If someone has died, the circumstances are quite different. Unlike with living patients, there is no common law requirement to obtain consent for the removal of tissue, so under the amendments, no consent would be necessary to remove, store and use material for part 2 purposes from a person who had died. If a person had given permission before they died for medical research and so on to be carried out on them, that would go ahead anyway. If relatives consented, for example, to a post mortem, it is quite likely that they would give consent for the purposes in part 2, which include clinical audit.

Dr. Harris: I hope that the Minister and I are not being distracted by the fact that there is no amendment in the group to delete part 2 of the schedule. I hope that, for the purposes of making the narrow point that I am seeking to make, we can ignore the fact that there is a part 2, but I would still argue that before any tissue can be removed from a dead person, the activity would be lawful only if carried out with appropriate consent and when stored for the use or purpose specified in part 1—or what is left of the schedule—of any relevant material that has come from the human body. There

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will be no question for the purposes of clinical audit or education and training incidental to medical diagnosis of organs being taken without that needing to be done lawfully ''with appropriate consent'' under paragraphs (c), (d) and (f) of clause 1.

Ms Winterton: That is not the effect of the amendments. It is clear that the result of the hon. Gentleman's amendments would be that consent was not necessary to remove, store and use materials for the purposes of part 2 of schedule 1. Amendment No. 57 would remove the requirement for consent to removal for part 2 purposes.

Mr. Lansley: The Minister is broadly right, but not specifically by reference to removal. The amendments would still make it lawful only for the removal of relevant material from a deceased person for a scheduled purpose if it were done with appropriate consent, because the amendment tabled by the hon. Member for Oxford, West and Abingdon does not remove subsection (1)(c). Subsequent storage or use of part 2 purposes could take place without consent because the effect of the amendment is to remove the requirement for consent with regard to a deceased person in relation to part 2 purposes.

Ms Winterton: It is difficult to see how one would store and use material if it were not removed in the first place. That is the point.

Dr. Harris: Perhaps it might help the debate if we considered that part 2 did not exist or that an amendment in this group deleted part 2. It has clearly been necessary to make this point. Will the Minister consider the three amendments in the context of there not being any more of part 2 so that there are no other scheduled purposes for which it might be lawful to store or use material? We are stuck with paragraphs (c), (d) and (f), which refer to part 1 of schedule 1. I am hoping that, for the purposes of debate and so that we do not miss the opportunity to raise the point—it is important for the reasons that I gave earlier—the Minister can deal with the arguments that do not assume that there is a part 2 present hanging in the air that might be used as an excuse to remove tissue.

Ms Winterton: I do not quite understand what the hon. Gentleman means by there not being a part 2 present.

Dr. Harris: Let me make it even more explicit. In the light of what the Minister says—I am not saying that I accept it, but let us say for argument's purposes that I do—a more consistent group of amendments would be Nos. 57 to 59 and an extra one to delete part 2. Therefore, it would never be lawful to remove organs from a deceased person for any scheduled purpose except where a schedule was specified in the old part 1, and that would be the only part of the schedule that applies in my amended clause 1(1)(c), (d) and (f). On that basis, the concern that she raises—that because there is a part 2 for which consent is not required and

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one can remove material for a scheduled purpose—need not apply for the sake of the argument. If I accept that point, I would argue that she should imagine a situation where there was no part 2 left.

Ms Winterton: That is an interesting concept. However, we have to work with the practicalities. It is important that for living patients we distinguish between purposes not normally requiring consent as set out in part 2 and purposes normally requiring

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consent. The logic of the hon. Gentleman's argument is that, for the purposes of the deceased, those two are rolled together. I believe that that is what he is saying. There would therefore be a completely separate schedule 1 for those who are deceased, as opposed to living patients. However, if that were the case, it would still revert to the current position: consent would have to be asked for. The position at the moment is—

It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at half-past Two o'clock.

Mrs. Irene Adams (Chairman)

Cohen, Harry

Davey, Valerie

Ellman, Mrs.

Francois, Mr.

Gibson, Dr.

Harris, Dr. Evan

Kilfoyle, Mr.

Knight, Jim

Ladyman, Dr.

Lansley, Mr.

Lucas, Ian

Murrison, Dr.

Naysmith, Dr.

Ryan, Joan

Taylor, Dr. Richard

Watson, Mr.

Winterton, Ms Rosie

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