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Lord Brooke of Sutton Mandeville: My Lords, like the noble Viscount, Lord Chandos, I appreciate that these amendments are controversial, against the background of the tragedies and scandals of Alder Hey and Bristol. But I think that your Lordships' House should be grateful to the noble Viscount for having brought forward these amendments so that we may discuss these matters.

On Second Reading in the other place on 15 January, my right honourable friend, Mr Kenneth Clarke—speaking, incidentally, as an ex-Secretary of State for Health—described the introduction of his Transplant of Human Organs Bill of 2001, in which he won seventh place in the ballot, seventh place being inadequate to take a Private Member's Bill through if its subject were controversial. He appreciated the Government's reply that they were waiting for a comprehensive survey of all the legislation on which they would then embark. He applauded the arrival of the Human Tissue Bill as sooner than might have been expected. But he felt that the Government had missed an opportunity to do something positive regarding a continuing shortage of donor organs. The issue is
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sensitive, so of course it is understood why the Government are cautious, but opportunities for legislation are rare and therefore important.

The bulk of the public recognise the value of having donor organs, especially hearts and kidneys. Several hundred die each year awaiting a transplant, but the quality of life while waiting can also be awesome. Nearly 6,000 people were waiting on the list in November of last year. Donors are, I believe, declining and of course I acknowledge that legislation itself is not the determinant solution.

I may have got my author wrong, but under the lines of Lovelace:

a prisoner had written the graffiti, "But they sure do help". Legislation, likewise, would help in this instance—mutatis mutandis.

I welcome what the Government are doing and the tidying up of the law, but the critical issue, as the noble Viscount said, is consent.

The assumptions of the public are that once one has secured a donor card, the issue is decided. But it may be only the trigger for the process of persuading sorrowing relatives that that consent should be implemented. If the Minister in the Commons originally could not answer a question about the status of donor cards, what chance has Joe Public—or even, to coin a phrase, "Lord Private"—to understand that status? Mr Tam Dalyell, during research for his 1971 Bill, found a significant number of relatives, as the noble Viscount alluded, who, when they dwelt on the matter, greatly regretted having refused their consent at the time it was asked for. The process itself can put people off. On the chessboard the queen's move, the king's move, the bishop's move, the rook's move and the pawn's move are easy even for a child to understand. But the knight's move is more difficult—and there is an element of the knight's move regarding the process that is involved in this case. The other place devoted some significant time to the new clause moved on this subject—in slightly different terms—by Dr Evan Harris on Report on 28 June, cols. 39 to 94 of Commons Hansard. That was a large proportion of the time devoted to the Bill on Report in the other place—about 60 per cent of the total Report stage, which took up cols. 26 to 115. Those supporting the new clause were overwhelmed fivefold in the Division Lobbies, but it is worth recording as an index of all-party support, that 19 Labour, 18 Conservative, 22 Liberal Democrat, two Plaid Cymru and one independent Members backed it.

The noble Viscount has given comparative statistics that relate to Austria and Belgium. This country's figure is only two-thirds of France's and barely more than a third of Spain's. If registered donors are only just over a fifth of those who support the principle of organ donation, happily three times that proportion in 2000 supported presumed consent with opt-out. That
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descending spread to three-fifths and one-fifth is a lively index of the present confusion and potential ignorance of the public at large. As the noble Viscount said, Belgium and Austria's organ donation rates are nearly twice that of this country.

Of course I recognise that a system of presumed consent with opt-out would ideally require extra infrastructure, a dedicated transplant co-ordinator in every hospital and proper training for care unit staff and other professionals in approaching patients and relatives for donation. That would mirror the production of Spain's remarkable figures. I recognise the Government's pause for caution, but I hope that the Government also recognise that those supporting the new clause also support a step-by-step process. When crossing a Rubicon one should always ensure that each step will carry one's weight before proceeding to the next.

In conclusion, like Mr Dalyell's contacts, who, in 1971, later regretted not consenting when they were asked to, I hope that we shall not regret a missed opportunity in the Bill.

Lord Biffen: My Lords, I have an interest as a patron of the National Kidney Research Fund and, in his closely argued introduction to this new clause, the noble Viscount, Lord Chandos, referred to my own problems of renal failure.

I am very much in favour of this new clause, and I realise that it is part of a campaign to obtain greater recognition of the move away from "informed consent" to "presumed consent" for transplants, with an opt-out. One has to reflect only that such a doyen of lobbyists, Tam Dalyell, has been campaigning on this subject for so long, with such modest success, to realise that to obtain the changes that one desires is a pretty Herculean task. Yet, the challenge is there in that all western European countries have higher performances in that respect than ourselves. Therefore, it is reasonable to make such requests to the Minister, realising that it is not a matter of delivery tomorrow or in the immediate future. But when the number of transplants substantially increases, all the pressures will be to supply the hospital facilities, the nursing staff and everything that will bring to this country, for those suffering from renal failure, an alleviation which would otherwise be unlikely to occur.

Therefore, although the argument is being made for a gradualist approach, none the less I hope that it will bring an approach with a clear destination.

Baroness O'Neill of Bengarve: My Lords, I have much sympathy with the intention of noble Lords who have put their names to this amendment. I am not sure whether they will have complete sympathy with my comment—which is that they have burdened the amendment with the label of advocating presumed consent. When I read the amendment, I do not think that that is what they wish to propose. They propose to take seriously the consent of the deceased and I would put to the Minister the question of whether the
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present situation is not one in which systematically the consent of relatives is allowed to override the actual, rather than the presumed, consent of the deceased.

Baroness Finlay of Llandaff: My Lords, I am grateful to my noble friend Lady O'Neill of Bengarve for pointing that out. We are talking not only about kidneys, but also about hearts and lungs. When there has been a sudden death, it is incredibly difficult to go to relatives and even raise the issue of transplants. I have done that. You feel absolutely terrible. But you know that you have also seen someone, perhaps that week, who has been told that they are going on the transplant waiting list and you know that they will die before they ever receive a transplant. That is the problem. We are talking about organs from someone who has died. We are not talking about any change in clinical practice. It is a difficult question to ask—and during that time when the relatives are completely distraught because the death is almost always sudden and unexpected, they desperately clutch at any indication of what the person might have wished for.

But the default mechanism at the moment is always, "if in doubt, don't". I hope that an amendment such as this might help such families tip towards, "if in doubt, do", but still allow for them to say, categorically, that although that person did not carry a card to say that they did not wish to be a donor, one would know that they had said that they did not wish to be. That would be it; end of story. The way that relatives currently wrack themselves in trying to determine the best course of action, and then have regrets later, is a matter that we must take seriously.

I undertook my own study through the Compassionate Friends, which was published in the British Medical Journal under the title, "Your child is dead". Years later those parents whose children had died were drawing comfort from the fact that an organ had been used for transplant. I should like to end by quoting a child who, on the anniversary of her father's death, said:

She was referring to two kidneys, a liver and a heart/lung. But, as she said, they would only have been burned with his body anyway. That is what we are talking about. This matter is very different from the main context of the Bill and the way that we have been debating it. This is an opportunistic way of including this matter, because we are dealing with transplants. But I do not think that simply ignoring the amendment would allow the issue to go away. We must return to it if the amendment is not accepted.

We really must look at better alternatives to young people dying while they wait for messages on their pagers to tell them that a heart, lung, kidney or a liver has been found for them. This issue is not about the George Bests of this world; it is about young people, often under the age of 25, who can do incredibly well
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and who are very compliant with all their medication. They really could live and contribute to our society if they were freed up by a transplant.

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