Joint Committee On Human Rights Twenty-Sixth Report

8. Letter from the Legal Adviser to Cheryl Gillan MP


As part of its function to consider human rights in the United Kingdom, the Joint Committee on Human Rights examines all bills introduced to either House with a view to reporting to each House on their compatibility with Convention rights under the Human Rights Act 1998, and with other rights which arise in international law under human rights instruments by which the United Kingdom is bound. The Committee is considering whether to report to each House on the Organ Donation (Presumed Consent and Safeguards) Bill. It has carried out an initial examination of this Bill, and would be grateful for your comments on the following points raised by its Legal Adviser. I should make it clear that the Committee's remit extends to human rights in a broad sense, not just the Convention rights under the Human Rights Act 1998.

As you know, the Bill would provide (among other things) for a presumption that a person aged 17 or over has consented to have his or her organs used for transplantation after his or her death, unless—

—  the individual had registered an objection in an official register during his or her lifetime, or

—  the person with control or management of the hospital or institution in which the individual's death occurs (the 'designated person') was satisfied, on the basis of information provided by the individual's spouse or partner, that the individual had expressed an objection to donation that had not been registered, or

—  proceeding with the donation would cause distress to the deceased individual's spouse or partner, or, where there is no spouse or partner, to a parent or child of the deceased.

The Bill provides a safeguard against removal of organs before the death of the donor, which would threaten the donor's right to life under ECHR Article 2 and the right to be free of inhuman or degrading treatment under Article 3: no organs must be removed unless two registered medical practitioners have satisfied themselves that the person is dead. Death, for this purpose, would mean—

the irreversible loss of the capacity for consciousness, combined with irreversible loss of the capacity to breathe, determined by permanent cessation of heartbeat or, where the heartbeat is being maintained artificially, by brain stem tests carried out in accordance with the criteria set out by the Conference of Royal Colleges... [clause 4]

However, the Bill does not require the doctors who satisfy themselves that the donor is dead to be independent of the transplant team, nor would they have to certify their satisfaction to any specified person or record it in any particular form. Furthermore, in relation to the criteria for brain stem tests, it is unusual for Parliament to delegate responsibility for setting standards in relation to a matter as sensitive as this, with clear human rights implications, to a body which, however eminent, is not accountable to Parliament.

The Committee would therefore be glad of any comments you may wish to make on the following questions—

(a) Should the Bill require the two registered medical practitioners who have to be satisfied that death has occurred to be independent of the doctors who would be responsible for removing and transplanting the organs, and to record their conclusions and report them in a particular form or to a particular person?

(b) Should Parliament retain ultimate responsibility for approving the criteria to govern brain stem tests, either by including them on the face of the Bill or by requiring them to be contained in a statutory instrument to be made by the Secretary of State subject to the affirmative resolution procedure?

The Committee understands the difficulties which the sponsors of private members' bills, with limited resources, often face in responding to questions from the Committee about the human rights implications of their bills. Nevertheless, without suggesting that you are under any obligation to respond to its concerns, the Committee would of course give full weight to any representations which you might wish to put before it. If you wished to submit a response, the Committee would appreciate receiving it by Friday 4 October.

24 July 2002

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