Human Tissue Bill

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Ms Winterton: I assure the hon. Gentleman that any consent given during a lifetime persists after death, but the purpose of clause 45 is to make it clear that material taken from a human body during medical treatment, diagnostic testing and research or relevant material that for whatever reason is no longer required for those scheduled purposes may be disposed of as waste. That can apply to material either from the living or the dead; the provisions of the clause are not affected by whether the person from whom the tissue came has subsequently died. The provision is merely a way of enabling tissue that is no longer required to be disposed of and of making it absolutely clear that that activity can be undertaken. I realise that it sounds odd that that has to be clarified, but it is important for the purposes of those undertaking such activities that it is clear that they can dispose of that material unless there has been a particular request to return it if necessary.

Dr. Harris: That was the point that I wanted to probe. I understand the purpose of the clause, but let us take the case of someone who has had an operation that involves cutting away tissue—a minor amputation, for example—and dies post-operatively. That tissue has not been taken from a deceased person. Does the Minister envisage that doctors will have a duty to offer the return of that material or will it be up to the family to request it? It is a valid point because issues have been raised in this respect and we would not want them to be raised again in an unplanned way.

Ms Winterton: Obviously, the authority will be looking at exactly how that would be made practicable. If a request were made about the return of tissue removed, it would obviously be respected. It is important that if, in giving consent for scheduled purposes, a particular request is made about what should happen to material afterwards, it should be taken into account.

In the light of those assurances, I hope that the hon. Gentleman will ask leave to withdraw the amendment.

Dr. Harris: Owing to the need for speed, I will not pursue the point except to note that there is a question about what happens when someone who has given consent for research to be carried out dies, and his family want everything that had been given for research, which may still be ongoing, to be returned in time for a burial.

Ms Winterton: Let me reassure the hon. Gentleman that if a person gives consent while alive to the use of surgical tissue, it will extend after death. The family would not be able to overturn that consent.

Dr. Harris: I am very grateful to the Minister for putting that on record because it will be necessary to ensure that relatives have realistic expectations of discussions concerning this important Bill. What the Minister said will help in that respect. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Dr. Harris: I beg to move amendment No. 126, in

    clause 45, page 28, line 18, leave out subsection (4).

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The purpose of this probing amendment is to give the Minister an opportunity to explain the purpose of clause 45(4), which states:

    ''This section shall not be read as making unlawful anything which is lawful apart from this section.''

I think that I know what that means, but I am not sure that everyone who reads it will do so, and it is an important part of the clause. Rather than raising the matter in the clause stand part debate, I thought it might be useful to give advance notice that the Minister should take this opportunity, if she would be so willing, to clarify what is meant and what sort of activities are not meant to be caught by the provision.

10.45 am

Ms Winterton: I accept that this is a probing amendment. It would remove a subsection that makes it clear that the reference to lawful disposal is not intended to affect the lawfulness or otherwise of other disposals of human material. Subsection (4) simply clarifies that by referring to certain disposals in the clause. We do not intend to cast doubt over the lawfulness of disposals that are not referred to in the clause, such as disposals of tissue that have come from a person's body during the course of cosmetic treatment. We are aware that, in the medical context only, there has been some uncertainty about the status of ''discarded'' tissue. That is why we have taken the opportunity to clarify the issue. However, in doing so, we did not want to create any doubt about the status of other material.

The clause allows for material that has come from a human body during the course of medical treatment, diagnostic testing or participation in research, or is relevant material that is no longer required for scheduled purposes, to be disposed of as waste. However, it does not insist that the material be disposed of as waste, not least because that may be against the person's wishes. For example, we would not intend to criminalise the use of human material for non-scheduled purposes, such as the development of cosmetics, if that is the wish of the tissue donor.

I hope that that clarifies matters for the hon. Gentleman.

Dr. Harris: I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 45 ordered to stand part of the Bill.

Clause 46

Offences relating to non-consensual analysis of DNA

Mr. Lansley: I beg to move amendment No. 184, in

    clause 46, page 28, line 22, leave out paragraph (a) and insert—

    '(a) he analyses or procures the analysis of any human DNA in any bodily material without qualifying consent intending—

    (i) that the person from whose body the DNA has come be identified as such, and

    (ii) that the results of the analysis be used otherwise than for the excepted purposes (see section 47),

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    unless he reasonably believes that he does the activity with qualifying consent or that what he does is not an activity to which this subsection applies,'.

The Chairman: With this it will be convenient to discuss the following:

Amendment No. 179, in

    clause 46, page 28, line 22, after 'material', insert

    'not covered under section 7'.

Amendment No. 131, in

    clause 46, page 28, line 23, after 'DNA', insert 'or RNA'.

Amendment No. 98, in

    clause 46, page 28, line 23, after 'material', insert

    'or derived from that material'.

Government amendments Nos. 157 and 158.

Amendment No. 187, in

    clause 46, page 28, line 33, at end insert

    ', or

    (c) it has been imported or come from a body which has been imported.'.

Government amendments Nos. 159 to 161.

Amendment No. 188, in

    clause 46, page 29, line 5, at end add—

    '(6) In this section, references to bodily material which has been imported do not include bodily material which has been imported after having been exported with a view to its subsequently being re-imported.'.

Clause stand part.

Amendment No. 186, in

    schedule 5, page 54, line 8, at end insert—

    '(1A) The analysis shall be regarded as being the subject of qualifying consent if the analysis of DNA for the listed purpose would be authorised under section 1(1) if the analysis were done in England, Wales or Northern Ireland.'.

Schedule 5 stand part.

Amendment No. 132, in

    clause 47, page 29, line 10, at end insert 'and RNA'.

Amendment No. 185, in

    clause 47, page 29, line 19, at end insert—

    '(g) in England, Wales and Northern Ireland, purposes specified in sections 1(1)(f) and 1(1)(g).'.

Amendment No. 133, in

    clause 47, page 29, line 21, at end insert

    'providing the material is anonymised'.

Amendment No. 134, in

    clause 47, page 30, line 3, leave out subsection (7).

Amendment No. 135, in

    clause 47, page 30, line 6, leave out from '(2)' to end of line 7.

Clause 47 stand part.

Government amendments Nos. 163 to 166, Nos. 180 and 181, and Nos. 167 to 175.

Government new schedule 2—Qualifying consent.

Mr. Lansley: As amendment No. 184 leads the group, I shall speak to that before we hear the Minister explain how the Government intend to remove clause 47 and what was schedule 5, and insert instead new schedule 2. That will help us for a couple of reasons. I hope that she will not feel the need to talk to amendments Nos. 185 and 186 because amendment No. 185 is redundant, as is, I think, amendment No. 186 because it would ensure consistency between Scotland and other parts of the United Kingdom. That consistency has become clearer by virtue of the way in which new schedule 2 is expressed.

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Most of our amendments, other than amendments Nos. 184 and 98, are affected by the way in which the Government have rejigged the structure, so they probably lose their immediate effectiveness. However, they were tabled in order to raise issues. Rather than refer at length to amendments and how they work, it is simpler to refer to the subjects they raise and how they arise.

My first question relates to the creation of an offence of intent. Amendment No. 184 is designed to question the nature of the offence that we are creating. When we considered retained organs and tissue generally, we discussed the offence of storing and using materials for which consent had not been received. At no point have we created an offence of an intention to do something. When considering DNA analysis, we should ask why the offence should be constructed around an intention.

Amendment No. 184 would change the clause's structure. The offence would be to undertake or procure the analysis unless it was, for example, consented, identifiable or for an excepted purpose. The idea of intention is questionable in principle and would be difficult to define in practice. The prospect is worrisome, particularly to those engaged in medical research who might feel that they are liable for an offence arising from an intention rather than from undertaking an activity.

My second question arises from amendment No. 98. Clause 46 refers to

    ''human DNA in the material''

and the question of its analysis. I hope that nobody—especially not the hon. Member for Norwich, North—will ask me how it works. Apparently, it is possible and indeed common to undertake DNA analysis not necessarily on material, but following a procedure known as PRC—

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