Human Tissue Bill

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Dr. Murrison: We are in danger of straying into the area of presumed consent, which I am sure he will deal with shortly. Will he comment on the position of the British Medical Association, which takes the view of soft presumed consent, in which the views of relatives will be taken into account? It seems to be contrary to his line.

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Dr. Harris: I am certainly not dealing with an opt-out system. I will not answer that specific opt-out question because the two cases are different. Under the opt-in system, which the hon. Gentleman supports, should the wish of the person concerned be overridden when there is valid, written and advance consent for the organs to be used, there is no medical contra-indication and the family have co-operated by giving information about the person's lifestyle that might be relevant to a contra-indication?

On Second Reading, the Minister said that the proposals were all about the fact that we owned our bodies and that the decision should be ours if our autonomy was to be respected after our death. It is inconsistent for the Government not to explain how they can allow consent to be overridden for non-clinical reasons where it has been given in writing in advance, or where, to take a separate issue, with which I would like the Minister to deal, there has been a specific request to respect an autonomous decision and not to take into account the views of third parties, including relatives, be they estranged, distant or otherwise.

We can talk about whether it is necessary in primary legislation to use language such as that in amendments Nos. 150 and 151—I think that it is—or about whether consent should take the form of a specific instrument, such as a donor card or register, but the Minister must tell us in terms other than of clinical contra-indications whether it is right, given that lives are lost when consent is overridden, for there not to be a better way of dealing with the issue under the current opt-in system.

I shall not go into the alternative approach, where there would be a presumption of consent and relatives would have to be asked whether they knew of an undeclared opt-out; that is a question for another debate on another day. However, I hope that the Minister understands that the amendments raise key questions about autonomy, particularly in the two sets of circumstances that I described. I look forward to her response.

Dr. Murrison: I hope that the hon. Gentleman did not imagine that I was trying to be unhelpful in my interventions, because we share a great deal of common ground. In particular, it is important for the individual's wishes to be paramount once an affirmation has been made on an organ donor card or in the organ donor register.

Like the hon. Gentleman, I have concerns about the availability of organs, but there is a more important point. UK Transplant tells us that it has a vast number of people on its register. Indeed, it cites an incredible figure, although I would rather check it because I am not too sure about it. None the less, I am concerned about how such figures translate into organs being received by those who need them. The concern of us all is that many hospitals are reluctant to accede to the desires expressed in the register or on organ donor cards. Those wishes are probably overlooked in the heat of the moment, which probably reduces the potential harvest of useable organs. If we are to attempt to save lives, we must address that problem practically and before we start considering the few

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cases—UK Transplant notes that they are virtually unknown—where organs are wasted or go by default because relatives object, even though consent has been given on the organ donor card or in the register.

Dr. Harris: I refer the hon. Gentleman to the potential donor audit published by UK Transplant, and I would be happy to give him a copy. It shows that there were 278 cases of brain stem death where there was no medical contra-indication. The subject of organ donation was considered in 255 of those cases—the vast majority—and relatives were approached in 244 of them. Doctors are therefore seeking relatives' views in the vast majority of cases. However, in 48 per cent. of cases, the relatives say no. According to the audit, that is where the problem is. Some of those cases will involve people who have registered or who have a donor card, so there is a question to address.

Dr. Murrison: I am grateful to the hon. Gentleman; that is extremely useful. We are told that the number of people registered by UK Transplant runs into the hundreds of thousands, which is extraordinary. It is difficult to tally that with the figures that the hon. Gentleman cites. Clearly, further work needs to be done. I maintain my impression that there is scope to improve the harvest of useable organs. I do not know, but strongly suspect, that moves in that direction would be more practicable and productive than overriding the wishes of next of kin in cases where people have already registered their wishes on a donor card or on the registry.

As the hon. Gentleman said, his amendments and those in my name and those of my hon. Friends the hon. Members for South Cambridgeshire and for Rayleigh (Mr. Francois) are very similar. We chose to cite the Human Tissue Authority and to give our amendments a broader remit than his because it is important to reflect future developments and the possibility that they might improve the current means of giving consent to the removal of organs.

That touches on the issue of presumed consent, the idea behind which is to increase the harvest of organs. We all want to do that; the question is how best to achieve it. The means of gaining consent for the harvesting of organs may improve in future. We can think, for example, of the electronic patient record, entitlement cards—a possibility that my party is examining—or even a national identity card, which is controversial, but by no means impossible.

Such vehicles would make it far easier to register informed consent to the removal of organs after death, and would not rely on the notion of presumed consent, which is highly controversial. The hon. Gentleman may want to discuss this issue later in our proceedings, but organisations such as the BMA seem to be very keen on such vehicles as a means of increasing the harvest of organs. As I said, we are all in favour of that, but the question is how best to achieve it.

Dr. Harris: May I make it clear that I support moving to an opt-out system that involves presumed consent? That does not mean, however, that anyone who supports such a system does not support efforts to maximise the number of people taking advantage of it

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while we have an opt-in system. I have been active in that area through the all-party kidney group and others. I have now found the figures. It turns out that in the sample that I mentioned, transplantations from 11 donors on the organ donor register did not proceed, despite the fact that relatives had been asked. That means that 11 or more lives could have been lost, against the wishes of the donor.

On this narrow question of presumed consent, will the hon. Gentleman say how many lost organs he believes to be sufficient to justify the ability of relatives in the opt-in system to countermand the advance written consent given by the donor?

Dr. Murrison: It would be invidious to put a figure on that. This is a sensitive area, which we stray into at our peril. The sensitivities of relatives are important, as is the general public's confidence in organ donation. We can all think of test cases in which relatives do not want organs to be removed from their next of kin, and the attendant publicity. I do not know whether our net take of organs would increase substantially if we were to alter the sensitive way in which I believe health professionals operate, but I have my doubts.

Dr. Harris: I disagree with the hon. Gentleman, but I understand his argument. However, what does he think is the right thing to do when someone has written on a donor card that they do not want their wishes to be overridden, which shows that they have thought about that?

10.45 am

Dr. Murrison: It is important to stress that relatives should be taken along every step of the way. There is no current mechanism for doing that on the organ donor card. We all carry them, and they are straightforward, but we must involve relatives in this procedure because it is necessary to ask various questions before proceeding with the removal of organs. I say to the hon. Gentleman that there are far better ways of maximising the take of organs. It requires a great deal of publicity for the general public to be taken along, and considerable damage has been done by the tragedies at Alder Hey and the Bristol royal infirmary.

We must build the general public's confidence in organ transplantation. We know from the figures that that confidence has been dented, and I cannot see how ignoring the sensitivities and the sensibilities of relatives in this procedure will enhance the confidence and good will that the general public have in transplantation. I suspect that this a small point of principle. I tend to agree with the hon. Gentleman: in general, it is axiomatic that the wishes of people expressed before death must have primacy. We do not disagree on that point, or on the need to harvest more organs. On the practical point, my amendments Nos. 150 and 151 would establish the means of maximising the take of organs and improve confidence in the system. They would also set a framework for incorporating future technological developments in improving the take of organs.

Ms Winterton: I shall deal first with the amendments. We certainly appreciate what the hon. Member for Oxford, West and Abingdon (Dr. Harris)

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intends in amendments Nos. 112 and 113: to make the organ donor card, or entry in the organ donor register a clear legal basis for consent. We also recognise that the alternative amendments Nos. 150 and 152 are similar, but less specific. They would give a power to the Human Tissue Authority to determine what instruments would be appropriate evidence of consent.

Although we accept that the amendments are well intentioned, we do not believe that they would be helpful. The amendments are unnecessary because appropriate consent given under clauses 2(6)(a) and 3(5)(a) would include signed organ donor cards or entry on the UK organ donor register or any other such instrument that might be developed, or even a note carried by the donor. There may be a risk, however well-intentioned the amendments, that they may lead to a more formal approach to the question of evidence of consent than is strictly necessary. For example, there may be confusion that failure to carry a card could be interpreted as a refusal of concern.

The hon. Members for Oxford, West and Abingdon and for Westbury semi-acknowledged that we are trying to avoid any specific references in the Bill that could become irrelevant within a few years. For example, we are seeing enormous changes in information technology, particularly the development of the NHS IT strategy. That could make unnecessary the carrying of a donor card, or a specific entry in the organ donor register. In our information strategy, which accompanies the NHS framework for renal services, we have already signalled our intention in this respect. We would like to see consent or otherwise for organ donation become part of the electronic patient record, which would give immediate access. Appropriate health care professionals would then have access to what is almost a virtual organ donor register. Consent or non-consent could easily be recorded by any health care professional with access to the person's electronic medical record, or even by individuals themselves. That came up on Second Reading—a suggestion made by the hon. Member for Spelthorne (Mr. Wilshire).

We are anxious that the amendments would be more restrictive than we would wish. We believe that the proposed changes would, in a sense, overtake the suggestions set out in primary legislation, and might even lead to misinterpretation. Having said that, we are coming on to a wider discussion about presumed consent or otherwise.

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