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Lord Turnberg: My Lords, I rise briefly to make only one point. I strongly support the amendment. It is likely to be popular with the public at large. If the public were educated about what is really meant by presumed consent with an opt-out, it would be widely accepted. We should move that agenda along.

Lord Rea: My Lords, as a former clinician, I am acutely aware of the huge price in terms of inconvenience and subjective discomfort which patients with kidney failure have to pay as they hold on to life in their need for frequent, intermittent dialysis on a kidney machine. As the noble Baroness, Lady Finlay, has just said, many of those patients die prematurely before they receive a transplant and many do not get that far. It is also labour-intensive and costly for the NHS to keep renal units functioning.

Renal transplantation frees those patients to lead a relatively normal life, although the immuno-suppressive drugs that they need may make them more susceptible to infections. I restrict my remarks to kidney failure and renal transplant. My noble friend Lord Chandos has indicated that other organs are equally in demand, but perhaps not quite to the extent of kidneys. Kidneys are the great success story of organ transplants.

The BMA and the great majority of the medical profession believe that presumed consent would considerably increase the supply of donated organs. As other noble Lords have clearly pointed out, there is evidence of that from other countries.

In terms of this country, I can provide slightly different figures from those which have already been given. In December 2003, 7,278 people were on the renal transplant waiting list. That list has grown by 34 per cent in the past 10 years. In 2002, 401 people died prematurely while waiting for transplants. Like the BMA and many others, I feel that the Bill is a suitable vehicle for introducing presumed consent legislation. I understand the Government's reluctance to do so as the tenor of the Bill is obtaining consent wherever possible for procedures involving human tissue. However, evidence shows that the majority of the population—90 per cent in one study—would be willing to donate their organs after death. Opting out rather than opting in does not mean that consent would not be sought. The opt-out could continue, the difference being that where there was any doubt or where relatives could not be located, the organ would be donated rather than cremated or buried.

I am sorry that the movers of the amendment judge that the time is not ripe to press for presumed consent legislation, but I thoroughly support my noble friend and his colleagues in putting the subject high on the agenda for further government consideration.

Lord Walton of Detchant: My Lords, like other noble Lords who have spoken—in particular, my noble friend Lady O'Neill—I am not certain that the
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amendment, as drafted, would have the outcome that the noble Lords who have proposed it are seeking. Nevertheless, during the past 15 years, there has been a sea change in the attitude of the medical and other caring professions toward the acceptance of the principle of presumed consent. I venture to suggest that even if the amendment were not accepted by the Government tonight, presumed consent will become law in this country and I hope that it will do so sooner rather than later.

Lord Chan: My Lords, I, too, support presumed consent, whether the amendment is accepted or not. Its advantage is that it overcomes the inertia of the large majority of the population who do not hold organ donor cards.

Presumed consent would also be an advantage among ethnic minority groups, where organ donation is even less common than it is among the general population, and would certainly reduce, if not eliminate, the illegal practice, referred to in Clause 33, of going abroad and buying an organ. That would be of great advantage to our population.

Lord Warner: My Lords, first, I pay tribute to the National Kidney Research Fund for all its work in this area and to my noble friend Lord Chandos for what he is doing to improve knowledge and understanding.

The Government's document, Saving Lives, Valuing Donors—A Transplant Framework for England, was published in July 2003. It set out the direction for organ and tissue transplantation in England over the next 10 years and encouraged the NHS, commercial and voluntary organisations and the general public to play their parts to optimise the number of potential organ and tissue donors and increase transplant rates to save lives.

Our aims are simple. They are to encourage 16 million people to register on the Organ Donor Register by 2010; and to build a patient and donor-centred service which achieves standards of excellence built on a genuine partnership between the public, charities, the NHS and commercial organisations—a true partnership between those in need and those who can help.

Last year, the Government provided £3.6 million via UK Transplant to support initiatives in hospitals and specific publicity campaigns to increase transplantation rates and raise the profile of organ donation. I am delighted to say that as a result of this investment, the dedication of staff in the NHS and UK Transplant and the generosity of donors, 2003-04 was a record year. Perhaps I may give your Lordships a few statistics. The highest number of organ transplants ever was recorded; the highest number of patients for 14 years received a kidney-only transplant; a further 2,365 people had their sight restored through a cornea transplant, the highest number for seven years; we saw a 20 per cent increase in non-heart-beating donation, which meant that more people than ever received a
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transplant from these donors; 147 people received a lung-only transplant, the highest number ever; and more than 800,000 people added their names to the NHS Organ Donor Register, bringing the total number registered to well over 11.5 million.

However, I accept that, great as these successes are, we cannot be complacent. As well as continuing to support existing hospital-based programmes such as donor liaison nurses, live donor and non-heart-beating donation units, we are providing funding via UK Transplant to provide a wide range of new initiatives, ensuring that donation rates continue to rise and more people can benefit from a transplant.

These include a year-long publicity programme to celebrate the 10th anniversary of the Organ Donor Register, with the aim of encouraging an additional 1 million to add their names to the register by October 2005. People can already sign up to the Organ Donor Register electronically. As part of the National Programme for IT, we are building an Electronic Patient Register which in time will also enable people to record their wishes on organ donation on their own patient records.

It has been argued that a move to presumed consent would further help increase organ donation rates. That is, unless someone has registered their unwillingness to be a donor, their organs could be taken and used. I say to the noble Lord, Lord Brooke, that possession of a donation card would be treated as presumed consent under the Human Tissue Bill.

When considering presumed consent, we looked closely at the experience of other countries. It is important to note that the practice in most countries is still to ask relatives for their permission before organ donation goes ahead. If they object and permission is not given, the donation will not proceed.

By far and away the most successful organ donation country is Spain, which, although it has a presumed consent law, has never used it. The architect of the "Spanish model" has repeatedly stated that the legal basis of consent is irrelevant to organ donation. What is critical is the organ donation and retrieval system—in particular, ensuring that only healthcare professionals with appropriate training approach relatives to discuss donation.

Learning from the experience and success of Spain and other countries, UK Transplant is holding, in conjunction with trainers from outside this country who are skilled in approaching families, training sessions for transplant co-ordinators on how to approach and discuss organ donation with relatives and friends. Although these are early days, those have proved helpful.

The French also had a presumed consent law, but that was modified in 1996 following an outcry from relatives who had not been informed about a corneal donation. A change in the law was made so that relatives had to be informed before organ removal, thus giving them the opportunity to object. Donation rates have increased by 30 per cent since the law was changed back to consent rather than presumed consent. I was in French hospitals on Thursday and
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Friday and saw that notices clearly identify the need for doctors and nurses to secure consent from relatives in relation to the donation of organs.

It is important that any measure aimed at increasing donation commands public and professional confidence. In the responses to our consultation document, Human Bodies, Human Choices, of those who responded on the subject of presumed consent, two-thirds were against a system of presumed consent. I also believe that the medical profession is largely content with the Bill and with the need to frame consent provisions in statute.

In conclusion, I have a great deal of sympathy with some of the ideas expressed, but we believe that this particular route is not the way forward. We need to pursue the path of education and consent with donors. I say gently to the noble Viscount, Lord Chandos, that if subsection (2) of the proposed new clause in his Amendment No. 41 were applied to other parts of the Bill, I would be very surprised.

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