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Standing Committee G
Thursday 29 January 2004
(Afternoon)
[Mr. Alan Hurst in the Chair]
Clause 3
''Appropriate consent'': adults
Amendment proposed [this day]: No. 90, in
clause 3, page 3, line 40, at end insert—
'(2A) In relation to the purposes in paragraph 7 in Schedule 1, where it is not contrary to his interests and would benefit persons with the same or similar conditions, a person who stands in a qualifying relation to him can consent on behalf of an adult who lacks the mental capacity to make decisions on his own behalf.'.—[Mr. Lansley.]
2.30 pm
Question again proposed, That the amendment be made.
The Chairman: I remind the Committee that with this we are discussing the following:
Amendment (a) to the proposed amendment, in
line 1, leave out 'paragraph' and insert 'paragraphs 3, 5 and'.
Amendment (b) to the proposed amendment, in
line 2, leave out 'would' and insert 'might'.
Amendment No. 91, in
clause 24, page 15, line 24, after '(ii)', insert '3(2A)'.
Dr. Evan Harris (Oxford, West and Abingdon) (LD): When we adjourned, I was explaining why I think that there is some merit in including further purposes in paragraphs 3 and 5 to enable those who lack capacity to participate in research. If one relies only on best interest, it is difficult to argue that material from such people can be used, because it is harder to prove that that would be in their best interest. The test of whether it is not contrary to their best interest is more valid.
I was about explain briefly that patients with a ruptured aneurysm in their head are usually, but not always, in a pretty bad way and unconscious, and may proceed to acute surgery when samples may be taken. Those samples might be useful for research on the cause and treatment of, as well as the inflammatory response to, such aneurysms.
It is not clear whether such tissue may be stored for the purposes of research to await any recovery of the patient. Sadly, people with such a serious condition sometimes do not recover and there may be a particular interest in looking at the material for research purposes rather than for treatment or diagnosis in such cases. It is likely, but not certain, that there may eventually be benefits for similar patients.
I could give other examples involving more chronic incapacity—it would be sad if the Bill failed to take account of that. The Government may intend to amend the Bill through other legislation covering incapacity. The hon. Member for South
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Cambridgeshire (Mr. Lansley) and I may find that satisfactory, but it should be clarified.
My amendment (b) would clarify amendment No. 90. It proposes words that are a little less specific than ''would benefit persons''—we are in the realms of future research—and would to change them to
''might benefit persons with the same or similar conditions''.
It is not against the interests of an incapacitated person for their tissue, with appropriate consent from an appropriate person, to be subject to research when there is a chance, although not a certainty, that that might benefit people with the same or similar conditions.
The same extension could be made for education and training, because it will be difficult to obtain material for clinicians' education and training, which will aid future treatment and cures, if samples from such patients are never available for the purposes of paragraph 3 of schedule 1. I wait with interest to hear the Minister's response.
The Minister of State, Department of Health (Ms Rosie Winterton): I understand the contributions of the hon. Member for South Cambridgeshire, my hon. Friend the Member for Leyton and Wanstead (Harry Cohen)—he made valid comments not only about people with mental incapacity, but about people with mental illness—and the hon. Member for Oxford, West and Abingdon (Dr. Harris).
Perhaps I may say first to my hon. Friend that it is important to be clear that people may have a mental illness, without losing capacity, but be able to make decisions. We are looking particularly at the issue of people who are mentally incapacitated and we must distinguish between the two.
Under common law, nobody can consent to medical procedures on behalf of a mentally incompetent adult, although treatment can be carried out if it is necessary and in the person's best interests. A person without capacity to give consent will not be able to provide the necessary consent for the use of their material for the purposes listed in the Bill, including research. When such a person dies, their relatives will be able to consent to their body, or material from it, being used.
The Mental Incapacity Bill covers questions of consent on behalf of incapacitated persons. The Bill has recently undergone pre-legislative scrutiny, and we will consider any changes that have to be made to the common law position. If changes have to be made to this Bill as a result, they will be made through the relevant channel.
Mr. Andrew Lansley (South Cambridgeshire) (Con): I am grateful to the Minister for at least making clear what I suppose we had expected, but she does not say what the Government's intentions are. In advance of legislation that covers the whole field, it may be premature to ask them to state their intentions in relation to the important aspect of consent for mentally incapacitated persons, but that means that we will not be able to consider the issue in the context of the Bill.
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Although we hope that the Bill will in due course become the Human Tissue Act and that it may be amended, there will be a time during which the review process has clearly failed to complete its course in this significant respect. Those of us who are focusing on the provisions in the Bill may not have the opportunity to give future amendments the same scrutiny.
There is little scope for us to press the Government further, when they consider themselves procedurally, if not constitutionally, constrained from being able to say more. On that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Dr. Richard Taylor (Wyre Forest) (Ind): I beg to move amendment No. 51, in
The Chairman: With this it will be convenient to discuss the following amendments:
No. 52, in
No. 73, in
No. 74, in
clause 3, page 4, line 23, at end insert—
'(5A) Where the person concerned has died and the activity does not involve storage for use, or use, for the purpose of anatomical examination or public display and the person concerned cannot be identified, ''appropriate consent'' means the consent of the coroner.'.
Dr. Taylor: I am afraid that I must start by craving your indulgence, Mr. Hurst. When I was penetrating the tortuous depths of the Bill, to meet the deadline for tabling amendments, I had not reached the striking clarity of clause 56, so I framed amendment No. 51 under the misunderstanding that an anatomical examination implied post mortem examination. With your indulgence, may I ask the Minister to clarify some matters regarding post mortem examination, which are not clear in the Bill?
My problem arises from my experience as a practising physician. A patient, perhaps one whom I had known for years, might die from a rare, puzzling illness, but one would find that they had no relatives. A medical value post mortem—to use the phrase ''medical interest'' would be wrong—was crucial to confirm the diagnosis, see the effect of treatment and demonstrate a unique case for teaching purposes. As far as I can see, the Bill does not contain any provision for a request for a post mortem when no family can be found. The point of the amendment is to find out whether that is the case.
Dr. Harris: I rise to speak to amendments Nos. 73 and 74, which probe on an issue separate from but
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analogous to the framing of the amendments tabled by the hon. Member for Wyre Forest (Dr. Taylor). They deal with what happens when there are no relatives available from whom consent can be obtained, the subsequent position on organ donation and what happens when a person is unidentifiable.
Amendment No. 73 states that
''if neither paragraph (a) nor paragraph (b) applies and no person who stood in a qualifying relationship to him immediately before he died exists or can be found in a reasonable time, the hospital authority''
would be the appropriate body to decide whether organs could be used. Under the Human Tissue Act 1961, those lawfully in possession of the body are able, though not required, of course, to use organs for transplantation if the person consented or if there is no reason to believe that they did not. The debate has long been about who has lawful possession of the body.
The Bill clarifies many matters, but it still does not deal with someone who is identified and is known to have no family, friends or reachable friends who would fit the qualifying relationship. Will the Minister provide clarification on whether hospital authorities can use organs—for transplantation, for example—or absolutely cannot?
Amendment No. 74 would add proposed subsection (5A). I am not certain of the circumstances in which the terms of the amendment would be appropriate. If someone were unidentified, it might be difficult for the purposes of transplantation to be certain that there were not unknown medical contra-indications. It would be useful to clarify the appropriate consent, if any might exist, in those circumstances.
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