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Ms Winterton: We will look back at the remarks made earlier in the Committee. I note what the hon. Gentleman has said, and I assure him that, if we feel that more can be done to clarify the position, we will return to the matter.
Question put and agreed to.
Clause 56, as amended, ordered to stand part of the Bill.
Clause 57 ordered to stand part of the Bill.
New Clause 6
Removal of relevant material following death
'(1) No removal from the body of a deceased person, for use for a scheduled purpose, of any relevant material of which the body consists or which it contains shall be effected except by a registered medical practitioner, who must have satisfied himself by personal examination of the body that life is extinct.
(2) For the purposes of this section ''relevant material'' does not include eyes or parts of eyes.'.—[Dr. Evan Harris.]
Brought up, and read the First time.
Dr. Harris: I beg to move, That the clause be read a Second time.
This is a probing new clause, if there is such a thing—I believe that there is. I am very pleased that it was selected. There were alternative ways of raising the issue, such as an amendment, but by the time the matter became apparent, we had considered the relevant clauses.
The new clause consists of the terminology used in an earlier Act that will be repealed by the Bill. I accept that it is clearly ridiculous to suggest that a registered medical practitioner should be the only one to remove organs. The Minister does not even need to put on the record the fact that that is now out of date. I want to find out whether it is the Government's intention to drop the requirement that there should be a personal examination of the body by someone, presumably a registered medical practitioner, before such acts are carried out. If that is their intention, why is the requirement being dropped? That was a requirement in earlier legislation, however imperfect, and it has not been translated into the Bill. If I am wrong, I will accept that, and I hope that the Minister will have mercy on me, given that we are near the end of our proceedings.
Dr. Murrison: I was about to launch into an attack on the hon. Gentleman for holding medical practitioners up as the only profession that could remove organs. He will be aware that a number of professions can do that. I was going to ask him why he had omitted teeth, because dentists are pre-eminently adept at removing teeth—
The Parliamentary Under-Secretary of State for Health (Dr. Stephen Ladyman): Like the tooth fairy.
Dr. Murrison: The Under-Secretary is reflecting on his moment of glory in an earlier sitting.
Dental practitioners would also be included, but quite apart from the medical and dental professions, vast numbers of people are trained and competent to be involved in the procedure. However, the hon. Member for Oxford, West and Abingdon (Dr. Harris) has reassured me by explaining that this is a probing motion, and I look forward to hearing the Minister's response.
2.45 pm
Ms Winterton: What the new clause does and what the hon. Member for Oxford, West and Abingdon is trying to get at seem to be two different things. Let me give some background information about the Human
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Tissue Act 1961, on which the measure is based. That Act was introduced to made it possible for tissue and organs to be removed for transplantation; it also authorised the removal of tissue for other purposes. As the hon. Gentleman said, the Act originally provided that only doctors could remove the tissue. However, in 1986, an exception was made for eyes, when approval was given, as the hon. Member for Westbury (Dr. Murrison) said, for less qualified technicians to undertake the removal of eyes to retrieve corneas. As has been said, although that is to be done under the supervision of a medical practitioner, the measure builds on experience in other countries which shows that properly trained technicians can retrieve a wide range of tissue, such as bone, tendons and heart valves.
The Bill works differently from the 1961 Act. It does not specify exactly who must do what. Removal of human tissue from the deceased for transplantation will fall within the remit of the Human Tissue Authority, which will have a duty to prepare codes of practice on the definition of death and on removal of tissue from the deceased for scheduled purposes, including transplantation. Those will set out the standards of training and experience, and the practices to be followed by persons undertaking such activities. It is clearly preferable—and I feel that this is what the hon. Member for Oxford, West and Abingdon was getting at—for retrieval of organs, tissues or cells to be undertaken by people who are specifically trained for the purpose, whether or not they are medical practitioners.
I was asked why it need not be a doctor who confirms death before tissue can be removed. The general requirement regarding death certification remains unaffected; it has to be done by a doctor. However, the Bill is about the removal of tissue after death. Removal before death without consent and where it is not in the person's best interests is an offence. No further provision is, therefore, needed with regard to that matter.
To an extent, the hon. Gentleman and I are approaching the matter from the same angle. I hope that I have clarified it and that he feels able to withdraw the motion.
Dr. Harris: Yes, I beg to ask leave to withdraw the motion.
Motion and clause, by leave, withdrawn.
New Schedule 2
'Section 46: Supplementary
Qualifying consent
1 This Part of this Schedule makes provision for the interpretation of ''qualifying consent'' in section 46(1)(a)(i).
2 (1) In relation to analysis of DNA manufactured by the body of a person who is alive, ''qualifying consent'' means his consent, except where sub-paragraph (2) applies.
(a) the person is a child,
(b) neither a decision of his to consent, nor a decision of his not to consent, is in force, and
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(c) either he is not competent to deal with the issue of consent or, though he is competent to deal with that issue, he fails to do so,
''qualifying consent'' means the consent of a person who has parental responsibility for him.
(3) In relation to analysis of DNA manufactured by the body of a person who has died an adult, ''qualifying consent'' means—
(a) if a decision of his to consent, or a decision of his not to consent, was in force immediately before he died, his consent;
(b) if paragraph (a) does not apply, the consent of a person who stood in a qualifying relationship to him immediately before he died.
(4) In relation to analysis of DNA manufactured by the body of a person who has died a child, ''qualifying consent'' means—
(a) if a decision of his to consent, or a decision of his not to consent, was in force immediately before he died, his consent;
(b) if paragraph (a) does not apply—
(i) the consent of a person who had parental responsibility for him immediately before he died, or
(ii) where no person had parental responsibility for him immediately before he died, the consent of a person who stood in a qualifying relationship to him at that time.
3 (1) In its application to Scotland, paragraph 2 has effect with the following amendments.
(2) In sub-paragraphs (2) and (4)(b)(i) and (ii), for ''parental responsibility for'' there is substituted ''parental responsibilities in relation to''.
(3) At the end there is inserted—
''adult'' means a person who has attained the age of 16 years;
''child'' means a person who has not attained the age of 16 years;
''parental responsibilities'' has the meaning given by section 1(3) of the Children (Scotland) Act 1995 (c.36).''
Use for an excepted purpose
4 This Part of this Schedule makes provision for the interpretation of ''use for an excepted purpose'' in section 46(1)(a)(ii).
5 (1) Use of the results of an analysis of DNA for any of the following purposes is use for an excepted purpose—
(a) the medical diagnosis or treatment of the person whose body manufactured the DNA;
(b) purposes of functions of a coroner;
(c) purposes of functions of a procurator fiscal in connection with the investigation of deaths;
(d) the prevention or detection of crime;
(e) the conduct of a prosecution;
(f) purposes of national security;
(g) implementing an order or direction of a court or tribunal, including one outside the United Kingdom.
(2) For the purposes of sub-paragraph (1)(d), detecting crime shall be taken to include—
(a) establishing by whom, for what purpose, by what means and generally in what circumstances any crime was committed, and
(b) the apprehension of the person by whom any crime was committed;
and the reference in sub-paragraph (1)(d) to the detection of crime includes any detection outside the United Kingdom of any crime or suspected crime.
(3) In sub-paragraph (1)(e), the reference to a prosecution includes a prosecution brought in respect of a crime in a country or territory outside the United Kingdom.
(4) In this paragraph, a reference to a crime includes a reference to any conduct which—
(a) constitutes one or more criminal offences (whether under the law of a part of the United Kingdom or a country or territory outside the United Kingdom),
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(b) is, or corresponds to, conduct which, if it all took place in any one part of the United Kingdom, would constitute one or more criminal offences, or
(c) constitutes one or more offences of a kind triable by court-martial under the Army Act 1955 (3&4 Eliz.2 c.18), the Air Force Act 1955 (3&4 Eliz.2 c.19) or the Naval Discipline Act 1957 (c.53).
(5) Sub-paragraph (1)(g) shall not be taken to confer any power to make orders or give directions.
6 Use of the results of an analysis of DNA for any of the following purposes is use for an excepted purpose if the bodily material concerned is an existing holding—
(b) determining the cause of death;
(c) education or training relating to—
(ii) research in connection with disorders, or the functioning, of the human body;
(d) establishing after a person's death the efficacy of any drug or other treatment administered to him;
(e) obtaining scientific or medical information about a living or deceased person which may be relevant to any other person (including a future person);
(f) public health monitoring;
(h) research in connection with disorders, or the functioning, of the human body;
7 Use of the results of an analysis of DNA for any of the following purposes is use for an excepted purpose if the bodily material concerned is from the body of a living person—
(b) education or training which is incidental to medical diagnosis or treatment;
(c) public health monitoring;
8 Use of the results of an analysis of DNA for a purpose specified in paragraph 6 is use for an excepted purpose if the use in England and Wales, or Northern Ireland, for that purpose of the bodily material concerned is authorised by section 1(1) or (7)(c).
9 Use of the results of an analysis of DNA for the purpose of research of a kind mentioned in subsection (1) of section 51 of the Adults with Incapacity (Scotland) Act 2000 (surgical, medical, nursing, dental or psychological research) is use for an excepted purpose if the carrying-out in Scotland of the research is authorised under that section.
10 The Secretary of State may by order amend paragraph 5, 6 or 7 for the purpose of—
(a) varying or omitting any of the purposes specified in that paragraph, or
(b) adding to the purposes so specified.'.
Brought up, read the First and Second time, and added to the Bill.
Clause 58 ordered to stand part of the Bill.
Schedule 7 agreed to.
Clause 59 ordered to stand part of the Bill.
Schedule 8 agreed to.
Clause 60 ordered to stand part of the Bill.
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