Human Tissue Bill

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The Chairman: With this it will be convenient to discuss the following:

Amendment No. 11, in

clause 24, page 15, line 28, at end insert—

'(ca) grandparent;'.

Amendment No. 102, in

clause 24, page 15, line 28, at end insert—

'(cb) grandchild;'.

Government amendment No. 110.

Amendment No. 12, in

clause 56, page 34, line 9, after first 'sister', insert 'grandparent'.

Amendment No. 103, in

clause 56, page 34, line 9, after first 'sister', insert 'grandchild'.

Ms Winterton: I have good news. It is either ''Guilty, m'lud'' or well done to the Opposition for spotting the deliberate mistake in the Bill. I wanted to give them something to get their teeth into and to test whether they were awake. Indeed, they proved to be awake.

We are grateful for having been alerted to the fact that we had inadvertently left out grandparents and grandchildren from the list of qualifying relations of a deceased person who can consent to the removal, storage and use of that deceased person's tissue for scheduled purposes where the deceased made no decision about that prior to death. We have tabled the amendments to cover that. The amendments to clauses 24 and 56 cover the hierarchy and the list of qualifying relationships.

It is appropriate to put grandparents and grandchildren on the same rank in the hierarchy, and after brother and sister, rather than on successive levels, as in the Opposition's proposals. That is simply because it is unlikely that both a grandparent and a grandchild of a person would be alive and able to give consent at the same time. Therefore, there is little point in ranking one above the other.

I hope that the hon. Member for South Cambridgeshire will not press his amendments and triumphantly welcome mine.

Mr. Lansley: We do indeed welcome the Government's acceptance of the point that we put to them, and we applaud their amendments Nos. 108 and 110. They go further than we had divined: the Government noticed that it is unlikely that any person would at the same time have grandparents and grandchildren in a qualifying relationship. Happily,

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we do not have to determine whether grandparents should stand higher in the hierarchy of qualifying relationships than grandchildren, although that had been our intention.

We commend amendments Nos. 108 and 110 to the Committee.

Dr. Harris: I share that welcome for this group of amendments. However, I may have missed something. I wish to make a point that has only just occurred to me. I thought that I might raise it now, although I accept that it is not a big issue because it might be possible to answer it immediately by directing me to the right place. At what age does a child or grandchild who might be quite young become old enough to qualify to give that consent? Is it the sort of consent that is referred to in the rest of the Bill—in other words, must they be capable of giving consent in the terms of the Gillick competence? If so, where is that provided for, or is there a different standard of age? I imagine that there will be sad occasions when a child is asked to give consent. I would be grateful for clarification on that.

Ms Winterton: The same principle would be applied as that applied earlier in the Bill to consent to anatomical examination: the Gillick principle—the age of understanding as applied in that sense.

Amendment agreed to.

Mr. Lansley: I beg to move amendment No. 21, in

clause 24, page 15, line 38, leave out subsection (7) and insert—

'(7) If the relationship of each of two or more persons to the person concerned is accorded equal ranking in accordance with subsections (4) and (5), it will be necessary to obtain the consent of each of them if they are a spouse or partner, parent or child.

(7A) In relation to qualifying relationships in paragraphs (4)(c) to (g), if two or more persons concerned who are accorded equal ranking do not agree as to whether consent should be given, it will be sufficient to obtain the consent of one, if there are two, or the majority of them if there are three or more.'.

The Chairman: With this it will be convenient to discuss the following:

Amendment No. 19, in

clause 24, page 15, line 40, after 'sufficient', insert

', except in relation to a spouse or partner,'.

Amendment No. 20, in

clause 24, page 15, line 40, at end insert—

'(7A) In relation to persons in a qualifying relationship under subsection (4)(a) or (b), it will be necessary to obtain the consent of each of them.'.

Amendment No. 27, in

clause 56, page 34, line 7, at end insert—

'(8A) Subsection (8) does not apply in relation to any person to whom paragraphs (b) to (f) of subsection (4) of section 24 applies.'.

Mr. Lansley: This debate might be a little more complex than the one about including grandparents and grandchildren.

Subsection (7) states:

''If the relationship of each of two or more persons to the person concerned is accorded equal highest ranking in accordance with subsections (4) and (5)''—

with the qualifying relationship hierarchy that we have just started discussing—

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''it is sufficient to obtain the consent of any of them.''

Therefore, if there were two parents in a qualifying relationship, it would be sufficient to obtain the consent of either of them. If there were several siblings, it would be sufficient to obtain the consent of any of those siblings. I must confess that when I read that I was surprised. It seemed that there was a risk of expressly contemplating, for example, that the consent of one parent would suffice even though there were objections from another parent. That did not seem consistent with best practice.

Amendment No. 21 would change the structure of subsection (7) so that it said:

''If the relationship of each of two or more persons to the person concerned is accorded equal ranking in accordance with subsections (4) and (5), it will be necessary to obtain the consent of each of them if they are a spouse or partner, parent or child.''

The first question that occurred was whether one could have more than one spouse. The answer is no, but one could have more than one spouse or partner. Legally, one could have a spouse at the same time as having a partner under the terms of clause 56, which we shall come to discuss. Let us contemplate the unhappy set of circumstances in which consent was given by an estranged spouse, but was objected to by a partner. As a consequence of the amendment, one would have to obtain in such circumstances the consent of each of them rather than either of them.

There is also the question of number of children and siblings, and so on. Proposed subsection (7A) says:

''In relation to qualifying relationships in paragraphs (4)(c) to (g)'',

which is from siblings downwards on the list in subsection (4),

''if two or more persons concerned who are accorded equal ranking do not agree as to whether consent should be given, it will be sufficient to obtain the consent of one, if there are two, or the majority of them if there are three or more.''

The drafting may be not absolutely happy, in that one cannot get a majority of four. No doubt that is why one has parliamentary counsel. However, the purpose of the amendment is to ensure that it is not enough just to find the consent of one person. The principle should be that when the qualifying relationship is very close—that is, it involves a spouse, partner, parent or child—they should all consent. When the relationships are less immediate, one should look for the majority view.

Amendment No. 19 would also amend subsection (7). If amendment No. 21 were not acceptable, amendment No. 19 would be a different route to entrenching the right of a spouse or partner to object. Amendment No. 20 would insert a new subsection. It would go along with amendment No. 19, because amendment No. 19 would take out the provision in subsection (7) that means that ''the consent of any'' of the spouse or partners would be sufficient. Amendment No. 20 would insert a proposed subsection (7A), which would mean that where a spouse or partner, parent or child is concerned,

''it will be necessary to obtain the consent of each of them.''

Amendment No. 27 relates to clause 56. In the qualifying relationships under clause 24, we are talking about spouse or partner. We are not engaging in a definition of ''next of kin''; we are setting up structural

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qualifying relationships. The Civil Partnerships Bill will, no doubt, give the House an opportunity to consider the issues surrounding the relationships between persons who are not blood relatives or legal spouses. Clause 56 needs, for the purposes of the Bill, to tell us what a partner is.

Clause 56(8) says:

''For the purposes of this Act . . . a person is another's partner if the two of them (whether of different sexes or the same sex) live as partners in an enduring family relationship.''

To say that the definition of partners is that they live as partners is a circular argument. One is a partner if one is a partner. The important phrase is ''enduring family relationship.''

I do not want to get into a long discussion about civil partnerships, although I could—you would not be happy if I did, so Mr. Hurst. However, I think that the hon. Member for Oxford, West and Abingdon is with me when I say that this is known colloquially as a spinster sisters amendment. One cannot and should not be able to elevate somebody in the ranking by virtue of an enduring family relationship where an individual's relationship to the person in question is defined elsewhere in the qualifying relationship.

3.45 pm

One could say that even though the spinster sister who is living as a partner in a household with the person in question is not the person who ranks highest in the list of qualifying relationships, they should still be treated as such. I am arguing that we should not take that view; the qualifying relationship should not permit that argument to be won, not least because of the difficulties that will ensue for the NHS if it has to become arbiter of disagreements. We must try to be as clear as we can. If somebody is lower down in the list of qualifying relationships but is a blood relative, they should not be able to be treated as if they were a partner. For this purpose, a partner is exclusive of people who are otherwise specified in the list of qualifying relationships.

Amendment No. 27 states:

''Subsection (8) does not apply in relation to any person to whom paragraphs (b) to (f) of subsection (4) of section 24 applies.''

Paragraphs (b) to (f) refer to people who could be next of kin. I have left out paragraph (g)—''friend of longstanding''—as it is entirely possible that a friend of longstanding might well be the same type of person who qualifies as a partner. I am concentrating on the question of blood relatives. I admit that my point is arguable, and that if one qualifies as a partner, one ought to be able to move up the qualifying relationship ranking. For clarity and to make decision making more straightforward for the NHS, I propose that we exclude that possibility.

 

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Prepared 3 February 2004