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That takes me on to an interesting point, which I was going to make in passing but I should make now because it is relevant to our deliberations. Some 90 per cent. of people say that they would be willing to donate their organs but only 26 per cent. are on the organ donor list. The figure I have been unable to find is the number who say that they would like to receive an
organ were they in a position where if they did not receive a transplant, they would die—I suspect that that figure is considerably higher than the 26 per cent. of people who are voluntarily putting their names forward. This deliberation contains a large element of quid pro quo; there is a reciprocal nature to the debate. It is not just about the individual choice of the people choosing to donate their organs, because it also involves the choice of the people who need the transplants and have the surgery that they would otherwise not receive. We are trying to balance all kinds of important competing criteria. That is the problem that I am trying to address.
I turn to what my short Bill—it is only a couple of pages long, so it is easy for everyone to read and digest—seeks to achieve. Its essence is extremely simple: instead of having the current opt-in register in the United Kingdom, there would be an opt-out register. There would a presumption that people’s organs would be available for transplant unless they specified that that was not what they wanted. Just as in the current arrangements, where one can also choose to give only certain organs, people would be able to opt out of giving some organs and not others or to opt out altogether. Some people have been slightly cynical about this. I received a letter from somebody—they were clearly untrusting of policitians—who said that they did not doubt for a moment that all of these barriers to opting out would be extremely difficult and cumbersome. I wrote back to him saying that that was not my intention. I want to make it as easy for people to opt out as possible. Furthermore, the Bill puts additional safeguards in place, for example, if someone had not decided to opt out during their lifetime, but their parents or next of kin felt strongly that that would have been their wish, they would have the ability to override other considerations. I am not just trying to get the opt-out figure as low as possible: I want to ensure that anybody who has reservations, whether for ethical, religious or superstitious reasons, can opt out easily. I do not want to coerce anyone into doing something that they do not want to do.
There is widespread support for my proposals. The chief medical officer, Liam Donaldson, has said:
“To meet the current demand for organs, the number of people on the NHS donor register would need to approximately treble. I believe we can only do this through changing the legislation to an opt-out system with proper regulation and safeguards.”
That is precisely what I am trying to do, and I hope that the regulation and safeguards will reassure those who would otherwise be anxious about the Bill.
The British Medical Association has also been supportive. It has said:
“The BMA believes that genuine choice over organ donation can be facilitated through a soft system of presumed consent whereby adults—who have been well informed of the options—can choose to opt out of organ donation during their lifetime, rather than having to opt into donation, as is the status quo.”
Such measures have also received considerable high level political support. The right hon. and learned Member for Rushcliffe (Mr. Clarke) has said—although, admittedly, it was in 2004—
“We have the worst record of any part of western Europe and this weakness in our law should be addressed...presumed consent can be operated in a perfectly sensitive way.”
We now have a higher percentage on the organ donor list than in 2004, but the right hon. and learned Gentleman—a distinguished Member of Parliament—was willing to support the principle of presumed consent then. Indeed, the most senior Member of Parliament—the Prime Minister—has indicated support for the principles behind the Bill. He said in November 2008:
“I’m not ruling out a further change in the law. We will revisit this when we find out how successful the next stage of the campaign has been.”
I am delighted to have the support of Members from all parties.
Such legislation has been proposed before. My short Bill is modelled on such legislation with a couple of significant changes that I should point out. The last time that the House discussed this measure, the age of application was 16, and I have changed it to 18. We can discuss the appropriate age, but I believe that while 16 and 17-year-olds should be able to opt in, the presumption of consent should not apply to those under the age of adulthood.
Laura Moffatt (Crawley) (Lab): I am glad that the hon. Gentleman has made this change. Does he agree that parents may be thrown into utter turmoil and confusion if their child is lying in a bed waiting for their organs to be taken for transplant? It is right to increase the age to 18.
Mr. Browne: That was my instinct, and I am grateful for the hon. Lady’s support.
The other change, which came out of my meeting with the BMA, was that the period between the Bill becoming law and taking effect should be three years. In previous attempts, it was six months. I am sure that those people who are enthusiastic about the measure would prefer the time scale to be shorter, but the BMA made the point that it is not easy to go from a system under which 26 per cent. of organs are available for donation to one in which 90 per cent. are available in a very short time. An educational process is necessary to inform the population, and there are also practical issues such as the availability of facilities in hospitals. A three-year timetable would therefore be more appropriate. I would hope that during that three-year period we would see more people opting in as awareness of the issue increased—in fact, I think that that is inevitable.
Mr. Christopher Chope (Christchurch) (Con): The hon. Gentleman talks about the register, and his Bill refers to “persons”. It does not specify that they have to be UK nationals. What protection would there be for foreign visitors to this country or illegal migrants whose identity was not known to the authorities? They would not wish to feature on the register, but because they were not on it their organs could be used in the way that his Bill suggests.
Mr. Browne: I am grateful to the hon. Gentleman for that intervention, because of the three issues I wanted to speak about. The first was the problem, which I have dealt with; the second was the Bill, which I have tried to explain as best I can; and the third, which I was just coming to and to which his point neatly leads me, was some of the concerns that have been expressed to me.
I want to attempt to allay some of those concerns. The hon. Gentleman’s point was one of the concerns expressed. It leads into an interesting and perhaps separate discussion, because it could apply equally to wider access to NHS services such as blood transfusions and so on. The nature of the arrangement, however, is that there should be an element of quid pro quo. If I put my organs up as being available for donation, I would hope that if I needed organs I would receive them. I would be happiest if this were a system that applied to UK nationals and which was administered by the national health service. I know that a lot of people would be very uncomfortable if they thought that their organs would be sold, for example, as that would breach their moral trust in the system. It will be interesting to hear what the Minister has to say on this point, because it can be widened to cover access to drugs in the NHS and other areas. It is not unique to this field.
Mr. Stephen O’Brien (Eddisbury) (Con): The hon. Gentleman will be aware that the question of the number of transplants that are finding their way into non-EU nationals has been topical over recent days. He said that there was an element of quid pro quo and I want to ensure that we are referring to the right things. There has been a finding that more than 800 organs are going into non-EU nationals, but close to 100 are coming as part of the quid pro quo. The situation is clearly asymmetric and out of balance, and I am glad to see that after the campaign that has taken place, which I have had something to do with, the Government are holding an inquiry. That is an important point regarding confidence and trust.
Mr. Browne: I think that we have general agreement on that principle.
Mr. Andrew Dismore (Hendon) (Lab): I have read the hon. Gentleman’s Bill very carefully and I support it. I have carried a donor card for nearly 25 years, and whether it is right or wrong to do so, to get over the problem that is being described I have written on it, “NHS patients only”. That is my personal preference. However, the question I want to put to him concerns the fact that his Bill deals with organs. Has he considered the position of other tissue that might be used, such as bone tissue, which is dealt with in the tissue bank in my constituency?
Mr. Browne: Inevitably, the Bill could have a wider scope and, of course, there are new fields of scientific research that make it more useful to have different parts of the body available for treatments that would not have been available in the past. The Bill is fairly narrowly drawn and its scope is confined to the organ checklist that one can opt into at the moment—the organs that one can choose to donate if one does not want to donate the entire list.
I want to divide the concerns that have been expressed to me into two groups: practical and ideological concerns. Let me skip quickly through the practical concerns—I might not have them all—to ensure that people appreciate that they have been considered. The first is the question whether the measure will compromise the relationship between the patient whose organs will be taken from them after their death and the doctor. A number of people have asked me whether the patient will be sufficiently
confident that the doctor has his or her best interests at heart. I put that question directly to the BMA, which was adamant that that would not be a practical concern and that the processes for deciding who is a suitable donor and who is a suitable recipient work separately in the NHS. The idea can be that two people would be lying at opposite ends of a ward with one donating directly to the other, and that the doctor would have to make some sort of judgment about which was the more worthy person to have the organ, but that situation would never arise in practice. I have never worked in a hospital, but the BMA is adamant on that point, so I was reassured by the description of the procedures that would apply.
A second concern is that it would be administratively difficult to make a transition to the arrangements, which is precisely why I have provided for a three-year time scale rather than the six months specified in previous attempts to introduce similar legislation. I recognise the administrative difficulty and I have tried to change the measure accordingly.
A third concern is cost. All changes have cost implications, but the implications would not be particularly dramatic for my Bill, although it is hard to be certain about them because we cannot be certain how many people would choose to opt out. I imagine that fewer people would choose to opt out than currently opt in, so the number of names on the register could be smaller. Although there would obviously be cost implications in transferring and holding the additional number of organs available, a number of people have pointed out that the cost of drugs for people who languish on the list for a donated organ but cannot receive one is far greater than the cost of carrying out a transplant. As I said when citing the example relating to my constituent, if the person can be put back into productive life, there are all kinds of cost benefits.
Lorely Burt (Solihull) (LD): I was just about to make that point. It is important to take all the costs into account. We can never quantify the cost of quality of life for people who have been in pain and suffering for a long time, but the Bill makes a great deal of sense simply in terms of economics and I congratulate my hon. Friend on introducing it today.
Mr. Browne: I am grateful to my hon. Friend for that intervention.
The final practical concern that has been put to me was whether there would be sufficient ease in opting out. I hope that I have already addressed that point, because I have bent over backwards to try to make the safeguards as large as I can. If there is a criticism to be made of my Bill, it is probably that the safeguards are too widely drawn, such that some people who died unexpectedly would have been willing to donate but their parents or next of kin decided otherwise. I do not accept that the safeguards are too narrowly drawn; they are as wide as I can possibly make them, to reassure as many people as possible.
Those are the practical concerns. The ideological concern is expressed to me far more often by Members of Parliament than by members of the public. There is nothing inherently wrong with that; Members of Parliament tend to think in more political and ideological terms—that is often the nature of politics. MPs have expressed
concern that the measure is tantamount to the state requisitioning our bodies. Many Members have told me somewhat airily and dismissively, “Oh, you’ve got that presumed consent Bill; I’m against that”, and gone on their way without, I fear, engaging in the logic of their argument as much as I would wish.
I have quite libertarian instincts. If people look at my voting record since I came into the House four years ago, they will see that my votes tend to conform to a fairly libertarian perspective. I have an innate suspicion of the state wielding excessive power, so given those instincts, why have I come to the conclusion that I am comfortable—indeed, enthusiastic—about the Bill? I think the reason is that the subject is in a different category from some of our other debates where there is a divide between MPs of more libertarian or more authoritarian tendencies.
There is inevitably a reciprocal element in our deliberations. We talked about blood donation earlier. Everybody is free not to give blood, but the implication of that is that if we need blood for treatment, none will be available. There is an obvious mismatch between what people with busy lives, who may have other pressures on their time, are willing to put themselves forward for, and what they would like to be in a position to receive if they suddenly found themselves severely medically compromised. On how we can try to bridge the gap between how people behave when they do not anticipate being unwell, and the treatment that they need when they are unwell, there is a responsibility to the people who are on the list, waiting, but who did not necessarily give the issue much consideration when they were healthy. I think that Conservative Members are keen on what is called nudge theory, the theory that one does not compel people to make decisions—that is too authoritarian—but nudges or encourages them to go along a certain route, and tries to make it easier for them to take the position that one would like them to assume. However, one gives them the option of not doing so. That is essentially what I am trying to achieve.
If I were in a road accident on the way home today, and I was unconscious and bleeding heavily, I assume that the paramedics—if they arrived in time—would seek to treat me without first acquiring my assent, and asking whether I had opted in to treatment. The presumption would be that I would wish to be treated. It is the same with inoculations. I remember having all kinds of inoculations when I was a child. There has been some controversy about the new human papilloma virus vaccine, which is being introduced for 12 and 13-year-old girls. I understand that there is the choice to opt out of those measures, but the presumption is that people will be treated and that there is a broad benefit to being included. Nevertheless, there is scope for parents to opt out on the girl’s behalf.
The same is true of blood transfusions. Some people, such as Jehovah’s Witnesses, have expressed opposition to receiving blood transfusions. There have been notable cases in the past in which parents have sought to prevent doctors from giving a blood transfusion to their child for religious or ethical reasons, and the courts have overruled the decision of the parent and decided that it was in the interests of the child to receive the transfusion, even though there was religious hostility to that.
I suppose that the point I am trying to make is that we are talking about a complicated subject; it is not as straightforward as the right to free speech, say, or issues such as smoking bans, which have been discussed in Parliament. There is a reciprocal nature to health care, and that is very obvious when it comes to organ donation.
Mr. Chope: Ought not the essence to be the right to choose? Surely it should be possible for a person to specify that they are willing to give their organs, provided that it is to a member of their own family?
Mr. Browne: I am being tempted down a slight side path. I wish to conclude shortly, but I point out that there are difficulties. Of course, there are examples of people giving a kidney to their spouse or brother, because they themselves can function without one, but obviously it is easy to exercise that choice when one is living and in good health. There are some difficulties with organs being allocated only to certain people, because one may get into difficult ethical issues. What if a person is willing to donate a liver only if it is not used for somebody who has been an alcoholic, or, more controversially still, willing to donate an organ only if it goes to someone of a specified ethnicity and unwilling to give it to someone of a different ethnicity from theirs? We will get involved in a lot of difficult moral judgments. In the example that I just gave, the doctor might presume that medically, the best beneficiary of the organ was someone of a different ethnicity from that specified by the donor. Although I am tempted by the point that the hon. Gentleman makes, because it does, on the face of it, look reasonable, I fear that it will open up all kinds of unanticipated difficulties.
In conclusion, I am in favour of choice. Most opinion polls show that 90 per cent. of people—I think that the figure is generally accepted—would like their organs to be used if they died unexpectedly and prematurely. I would like that choice to be reflected in what actually happens. At the moment, it is often the case that when something terrible happens to that person, what would have been their wish had they been alive is not exercised because they never got around to putting themselves on the register in the first place. I want to ensure that the choices of people who do not wish to donate are completely respected and that it is easy for them to exercise that choice and opt out.
Ultimately my test is this: we can have protracted ideological discussions, and I have no problem with that because there are important issues to consider, but it is incumbent on all of us to say what we would do if confronted by a constituent, or anyone else, who said to us, “I have months or weeks to live unless I receive a new organ. At the moment, 1,000 people a year are dying in the United Kingdom because they do not receive an organ. What are you as a Member of Parliament doing to ensure that I have a chance of staying alive at a time when lots of perfectly useable organs are being discarded because we did not take the time or trouble before someone’s death to ascertain whether they would be willing to have their organ used for a transplant?”
When meeting a constituent or any other person in those circumstances, it is hard to give them a convoluted ideological answer, and they would see it as entirely reasonable and sensible if we went for a properly administered presumed consent opt-out scheme. It would
be widely accepted very quickly and it would be in the interests of the country as a whole, particularly those who are gravely ill at the moment. Who knows whether in two, three, four or five years from now we may be in that position ourselves? Think how pleased we would be that we gave the Bill a Second Reading this afternoon.
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