Written evidence submitted by The Law
Society
- The Law Society is the representative body for
over 100,000 solicitors in England and Wales. The Society represents
and supports solicitors, negotiates on behalf of the profession
and lobbies regulators, government and others.
- In Wales the Law Society has a permanent office
which is resourced to enable solicitors across England and Wales
to respond to both law and policy consultations and to respond
to current legal issues both stemming from the devolution of law-making
and consequent upon a developing and distinct legal community.
- This paper is submitted in response to the Welsh
Affairs Committee's short inquiry into the Pre-legislative scrutiny
of the proposed Legislative Competence Order in Council on Health
and Health Services.
1. Is the LCO request in the spirit and scope
of the devolution settlement?
In light of the advice offered in Devolution Guidance
Note (DGN) 16, it is deemed that this LCO request is in the spirit
and scope of the devolution settlement. Health and Health Services
is one of the most devolved areas at executive level. It is therefore
compatible with the requirement in Section 13 of DGN 16 that devolution
in Wales is deepened, rather than broadened.
2. Is the use of the LCO mechanism in accordance
with the Government of Wales Act 2006?
In accordance with Sections 28 and 29 of DGN 16,
it appears that there are no Bills currently before the UK Parliament
that have an effect on this matter. The use of the LCO mechanism
is therefore in accordance with the Government of Wales Act.
3. Does the Order relate to Field 9, Part
1 of Schedule 5 and Subject 9, Schedule 7 of the Government of
Wales Act 2006?
The matter of Human Tissue is not expressly stated
as an exception to Field 9, Part 1 of Schedule 5 or Subject 9
of Schedule 7. However, for the reasons stated at question 11
below, we are concerned that the impact of this proposed LCO on
the non-devolved field of criminal law is of concern.
4. To what extent is there is a demand for
legislation on the matter(s) in question?
The evidence submitted to the National Assembly for
Wales Health, Wellbeing and Local Government Committee in 2008
by Kidney Foundation Wales and the British Medical Association
undoubtedly reflects the demand for legislation on this matter.
However, it is the responsibility of The Law Society,
in the interest of its members to ensure that all legislation
is fair, effective and properly scrutinised. The Law Society Manifesto
2010 sets out this commitment:
"..too much legislation is enacted with serious
unintended consequences due to a lack of proper consideration.
Legislation must be driven by considered debate, scrutiny and
evidence rather than hasty, populist headline-grabbing. Equally,
the efficacy of legislation should be assessed post-passage to
ensure that it is having the intended effect.
Too much legislation is fragmented and unclear, necessitating
clarification of detail through secondary legislation or through
'soft law', such as government guidance. Neither secondary legislation
nor 'soft law' is subject to sufficient scrutiny."[80]
The answers to questions 5, 6 and 11 of The Law Society's
submission to this Call for Evidence (set out below) reflect the
reasons why it is believed that the Legislative Competence Order
in question will lead to an ineffective piece of legislation.
5. Are there any cross-border issues relating
to the LCO? (eg financial or policy issues)
The LCO raises a number of very important policy
issues. Specialist Public Law solicitors from across Wales have
highlighted a number of possible scenarios where policy considerations
have not been fully explored:
SCENARIO A
X has learning difficulties. He can make basic decisions
about his day to day life but he does not have the capacity to
understand or to consent to medical treatment. Bristol Social
Services commission a placement in a community home in Gwent.
It is run by a private agency and the residents are encouraged
to live as independent a life as possible. He is registered with
the local GP and has been living at the accommodation for 4 years.
X suffers a cerebral haemorrhage. He is admitted to hospital but
the prognosis is poor. A decision is taken to make his kidneys
available for transplant. The records indicate his sister lives
in Somerset but she is currently on secondment to a University
in Dubai. She cannot be contacted quickly due to an administrative
slip up so the decision is made. When she learns what has happened,
she is horrified as she normally lives in Somerset and believes
she had the right as a relative to be involved and make it clear
that she would not have consented for deeply held personal beliefs.
How could they say Gwent was his home, he came from Somerset and
that is where he is to be buried and re-united with his beloved
parents.
SCENARIO B
Z is a free spirit. He plays in a folk band and moves
around the country staying with friends or in squats. In the summer
months he lives in west Wales with friends who have a permanent
mobile home in a residential park. A medical condition means he
has to register with a GP and he does so for the summer. An RTA
results in serious injury, the hospital feel his organs are fit
for donation. No one knows where his family are but his friends
say west Wales was the place he always wanted to be. His organs
are removed. A friend contacts his family in London who have come
back from holiday in Australia. They are angry. They say proper
inquiries at the hospital would have revealed he had a wife and
child in London and that he said he would always go back to them
as it was his true home. He would have hated the idea of his organs
being removed as he was squeamish.
SCENARIO C
M is the husband of S. She has suffered a sudden
illness and is in a coma. She had not given any indication as
to what she felt about organ donation. M is distressed and when
approached says he doesn't know about her wishes but he understands
that the Welsh NHS like to help others to survive. He is too upset
to think about it and will not discuss it any further. Her lungs
are removed. When he tries to find out what has happened to them,
he is told they have been taken to a hospital in Newcastle. He
is horrified. Why is there a separate law for Wales allowing a
patient to benefit who would not have been entitled to an organ
in similar circumstances from England? His brother J has been
waiting for a kidney for months but it is of no benefit to him
to have a separate law for Wales, should he not be given priority
now?
The scenarios above reflect the fact that this matter
deals with fundamental issues that would be best dealt with on
a UK basis.
6. Are the purpose and scope of the LCO clearly
defined, including the terms and definitions used?
The background, rationale and scope of the LCO are
clearly defined in the explanatory Memorandum. However, the terms
and definitions used are unclear.
The proposed term "ordinarily resident"
is not defined in statute. Whilst Shah v Barnet London Borough
Council [1983] gives a definition of the term, this does not address
the issue of "settled purpose". Residency may be assumed
voluntarily within a very short time period for a number of reasons
as explained in the examples given in response to question 5 (above).
Any presumed consent resulting from this residency may not be
as a result of the communication of information and a subsequent
decision not to opt-out.
The use of the GP register to ascertain consent also
leads to difficulties. Issues would inevitably arise for patients
in England and Wales who are registered with GP practices on the
opposite side of the border. Patients in rural areas in the Welsh
Marches would be obliged to follow the regimes (opt-in or opt-out)
relevant to their GP's practice, as opposed to where they live.
7. Does the LCO have the potential to increase
the regulatory burden on the private or public sector?
The regulatory burden imposed on Local Health Boards
and The Organ Donation and Transplantation Directorate of NHS
Blood and Transplant (NHSBT), an England and Wales Special Health
Authority, will be significant. Under the current regime, all
organs donated in Wales are allocated on a UK basis by NHSBT.
8. Would the proposed LCO necessitate the
formation or abolition of Welsh institutions and structures? If
so, where does the legislative competence to exercise such changes
lie?
The proposed LCO would necessitate the formation
of an institution to maintain a register of individuals who opt-out
of the proposed scheme.
9. Is the use of an LCO more appropriate than,
for example, the use of framework powers in a Westminster Bill
to confer competence on the Assembly?
The use of framework powers in a Westminster Bill,
addressing the issue on a UK-wide basis, would be more appropriate
than an LCO.
10. Has full use been made of any existing
powers to issue statutory guidance and/or secondary legislation
in relation to this Matter?
The Law Society is unaware of statutory guidance
or secondary legislation in relation to this matter.
11. Does the LCO have the potential to cause
confusion regarding legal jurisdiction and the individuals to
whom any Measure would apply to?
Yes. Insufficient scrutiny of any Measure and the
terms and definitions therein would undoubtedly lead to confusion.
Another aspect to consider is the possible overlap
with criminal law, which is certainly not within the powers contained
in Schedule 5 of the Government of Wales Act 2006.
Whilst Live Donation of Kidneys is a crime under
the Human Tissue Act 2004, the issue of the removal of organs
from dead bodies is a more complex common-law matter. Interfering
with the rights of executors to arrange the decent burial or disposal
of the body is a common law crime. Returning a body stripped of
organs could be argued to constitute that crime. Offences of causing
a public nuisance, or wrongfully desecrating a corpse could be
invoked. This argument has been dealt with at length by Professor
Margot Brazier, Chair to the Alder Hey Commission.[81]
12. What are the implications of Article 8
and Article 9 of the European Convention on Human Rights on any
such Measure?
The issue of a person's organs being removed, after
death, without consent having been obtained during his or her
lifetime would invoke the right to private life under Article
8 of the European Convention on Human Rights. This was recognised
by the European Court of Human Rights in X v Germany.[82]
The use of an organ for transplant, after death,
may invoke Article 8 (Respect for Private and Family Life) and
Article 9 (Thought, Conscience and Religion).
In order for any legislation subsequent to this proposed
LCO to comply with Articles 8 and 9, efficient schemes for the
promotion of public awareness and consultation with family would
need to be implemented.
February 2011
80 http://www.lawsociety.org.uk/aboutlawsociety/influencinglaw/manifesto/goodgovernance.page Back
81
http://www.nature.com/bdj/journal/v193/n4/full/4801521a.html Back
82
X v Germany 24 DR 137 Back
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