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Dr. Murrison: This is a difficult but necessary clause because it will allow organs that are currently lost to be salvaged. It is quite controversial, particularly among those who might be engaged in harvesting such organs, several of whom are concerned about the ethical and legal implications for them. It is important to get the notion of consent clear, so that that category of people can feel comfortable that what they are doing is fair and reasonable. We have exhaustively defined consent elsewhere in the Bill, and I am not clear about the word ''permission'', which we have not defined, although the hon. Member for Oxford, West and Abingdon implied that there was a common-usage understanding of the word. I would therefore resist an amendment that would substitute the word ''permission'' for ''consent''. I seek your guidance, Mr. Hurst: I assume that we will have a clause stand part debate, in which we may explore other issues. The Chairman indicated assent. Column Number: 233
Dr. Murrison: Thank you, Mr. Hurst. With that in mind, I conclude my remarks on the amendment. Dr. Ian Gibson (Norwich, North) (Lab): Will my hon. Friend the Minister consider in her reply another aspect of consent, which I do not think we have discussed? I am referring to consent from people with motor neurone disease who can neither write nor speak. However, there are other mechanisms, involving the alphabet and so on, by which they can transmit consent. We must be careful about the giving of consent by people with different types of disease. We do not want to miss any tricks at this stage. Ms Winterton: We will resist the amendments. The hon. Member for Westbury touched on the issue of consent, which we debated quite thoroughly earlier. Although amendment No. 124 is designed to reflect the wording of part 1 of the Bill, it is unnecessary. It is clear from the Bill as a whole that the consent that makes removal of an organ or tissues for transplantation lawful is the appropriate consent required by part 1. On amendment No. 125, we argue that ''permission'' would, as the hon. Gentleman said, be at odds with the wording of the rest of the Bill. The consent to which the clause refers is that which makes the removal for transplantation lawful. We know from part 1 of the Bill that that is appropriate consent as defined in clauses 2 and 3. My hon. Friend the Member for Norwich, North (Dr. Gibson) made the important point that the Human Tissue Authority will need to consider, and issue guidance to reflect, the different circumstances that people may face. Of course, people with motor neurone disease will face particular difficulties, and it is important that appropriate mechanisms are available to enable them to indicate that they want their organs or a relative's organs to be available for transplantation should they wish to do so. The authority will be able to indicate that in guidance. Dr. Harris: The Minister has just said that consent means the consent referred to in part 1, but that is not obvious to someone reading the Bill because it does not say—when it could—that for the purposes of the clause, consent shall mean appropriate consent, and that is not cross-referenced. In tabling these probing amendments, I wanted to ask her why she has specifically not included that cross-reference. That would be an obvious thing to do, because everywhere else that consent is mentioned, a qualifying adjective makes it clear that it is appropriate consent or qualifying consent. Why is only the vague term ''consent'' in this clause?
10 amMs Winterton: The wording in this part covers two things: the appropriate person referred to and the fact that the act of obtaining consent has been carried out. The consent cannot be any other consent; the Bill cannot talk about permission. Throughout, the Bill refers to consent—the appropriate consent in terms of the person from whom consent should be obtained. It also refers to the fact that the Human Tissue Authority will issue guidance to help people to obtain that Column Number: 234 consent. To change the wording to ''permission'' would be inappropriate and confusing in this part of the Bill.Dr. Harris: Shall we forget amendment No. 125, which refers to ''permission'', and concentrate on the amendment that would change ''consent'' to ''appropriate consent'', or whatever is the appropriate terminology, as defined in part 1? I do not understand why in every other part of the Bill there is a cross-reference to ''appropriate consent'' as defined in clauses 2 and 3 in part 1, but just in this clause, where one would have thought there was a need to be specific, it is left as ''consent''. It might be implied that it is something other than what is in the rest of the Bill. Courts may have difficulty seeing what the Minister sees as obvious when they have to carry out a literal interpretation of the Bill. Ms Winterton: I assure the hon. Gentleman that in drafting this part, we have been careful to ensure that we are not opening up any loopholes. The method that he suggests would cause greater confusion. I realise that he is finding that difficult to accept, but I assure him that we need to consider the thread running through the Bill, especially in this part when we are discussing transplantation. Obviously consent can be made by relatives as well, and we must ensure that we use the appropriate wording. According to our legal advice from parliamentary counsel and others, the Bill's wording is appropriate. Dr. Harris: I am sorry to press the Minister on this point. She is saying that the wording is correct because she says it is correct and because that is her advice, and I find that hard to accept. I hope that she is saying it is correct because she thinks it is correct and that is her advice, but could she explain why it would be confusing or why loopholes would be created if there were a reference to appropriate consent as defined in part 1? What is being lost? As we shall discuss in the clause stand part debate, this is a controversial issue and people will want reassurance about what the Minister means by consent, versus appropriate consent. Ms Winterton: I draw the hon. Gentleman's attention to clause 1(1)(c); it states that the removal of material from a deceased person is lawful with appropriate consent. The consent referred to in clause 44 cannot, therefore, be anything other than appropriate consent. I assure the hon. Gentleman that we have given thorough consideration to the correct wording to use in this clause. We know that this is the most appropriate way to express the consent to be given for transplantation. Having given the hon. Gentleman that assurance, I hope that he will seek leave to withdraw the amendment. Dr. Harris: The Minister has just said that, because clause 44 refers to consent making removal of the part for transplantation lawful, that is all that is required to refer to part 1 of the Bill. However, I am not sure that that is as helpful as the Minister thinks. The Government have included these provisions in part 3 rather than part 1. I could understand it if they were in Column Number: 235 the same part as those covering the definition of appropriate consent and the issue of qualifying relatives—that would flow naturally. However, some of the provisions and definitions in the Bill relate solely to a specific part, and repeat definitions cover other parts to clarify what does and does not apply to the rest of the Bill. The Minister has explained that she is confident that because the term ''lawful'' is used, the provision must refer to part 1, but she has not explained why it is not necessary, helpful or consistent to make specific reference to the phrase ''appropriate consent''.I will not make much more progress at this point, but I hope that further explanations will be forthcoming. I am not trying to be difficult, as I am a strong supporter of the clause, but there is controversy around it, which is why I used amendment No. 124 to probe the Government's thinking. That said, I beg to ask leave to withdraw the amendment. Amendment, by leave, withdrawn. Question proposed, That the clause stand part of the Bill. Dr. Taylor: I want to raise some ethical concerns about the clause. Its laudable aim is to increase the supply of organs for transplantation, but it has raised troubles in the mind of some of the clinicians who harvest those organs. The concerns are similar to those surrounding the separation of those who ask for consent for a post mortem from those who carry out the examination. The idea troubles clinicians who work in accident and emergency departments, intensive care units, medical wards and coronary care units. As we understand it, the clause makes legal without consent the measures necessary in a non-heart-beating donor to preserve the organs within the dead body until consent can be obtained. That could involve ventilation and operations on the groin to insert cannulae in the femoral artery and vein to perfuse the organ. An intensive care consultant from Leeds, Dr. Dominic Bell, who has written about the ethical aspects of non-heart-beating donation in the Journal of Medical Ethics, has written to me:
Column Number: 236 I will be grateful to hear the Minister's comments, and if she wants me to, I shall pass her the letter so that she can consider it more deeply.
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