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|"In section 37(9), the words "or undertaking".|
|In section 39(9), the words "or undertaking"."|
|"Section 269(2A) and (3A)."|
|"Housing (ConsequentialProvisions) Act 1985 (c. 71)||In Schedule 2, paragraph24(2)(d)."|
"( ) Schedule (New Schedule 5A to the Housing Act 1985: initial demolition notices),"
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Page 171, line 26, after "171," insert "(Tenancy deposit schemes) to (Sanctions for non-compliance),"
Page 171, line 26, after "206," insert "(Authorisations for enforcement purposes etc.),"
Page 171, line 27, at end insert
"( ) Schedule (Provisions relating to tenancy deposit schemes),"
House adjourned at eighteen minutes before eight o'clock.
The Deputy Speaker (Viscount Allenby of Megiddo): The Grand Committee should have before it a second Marshalled List dated 15 September, also a revised list of groupings printed on green paper, copies of which can be collected by the door. The usual procedures of Grand Committee apply.
Baroness Andrews: I wish that I could spin out this amendment and make it difficult by keeping the Opposition in suspense. I am afraid that I cannot. We have much pleasure in accepting the amendment: it is a bit of forensic analysis.
Lord Jenkin of Roding: There was a time in another place when, in order to while away the time, I managed always to find a misprint in every Bill in which I was asked to take part. It became a bit of a joke: "Where is it this time, Patrick?" I do not think that the noble Baroness, Lady Andrews, needs to chide herself or her officials. These things happen.
Earl Howe: The Bill has for the most part generated consensus across the party divide and across the medical and scientific community, subject to points of detail. Two areas, however, have been criticised. One is the absence of any detailed provisions relating to coroners and the failure to synchronise publication of the new coroners' rules with our debates in Parliament on the Bill. We will come to that.
The other is the failure to synchronise the Bill with a new Mental Capacity Bill. We find ourselves in what can only be a most unsatisfactory situation, in which
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we are asked to debate Clause 6 without having the benefit of knowing how it will marry up with the provisions of the Mental Capacity Bill in its final form. I made a similar complaint when we debated the clinical trials regulations earlier this year. Both the regulations and the Bill pre-empt the Mental Capacity Bill. It is unfortunate that in two of its major subject areas, we should be considering the Bill in what amounts to a vacuum.
Clause 6 did not receive much debate in another place, as it was inserted only on Third Reading. We must be clear about one thing straight away. If informed consent is a principle that the Government believe runs like a golden thread throughout the Bill, Clause 6 is the pair of scissors which breaks that thread. The idea of deemed consent in the context of the Bill is one that we should entertain only with extreme caution and in exceptional circumstances.
In Clause 7, which we shall debate later, it must be the High Court which decides on deemed consent where the donor is untraceable or dead. I agree with the Government that the High Court is the right place for such matters to be decided. In Clause 6, on the other hand, it is the Secretary of State who will decide how through regulations when the cardinal principle of informed consent is to be set aside. He will do so before knowing what conclusions Parliament has reached on the matter in primary legislation. That is a fairly rum state of affairs. We do not know what the regulations are likely to contain but we are potentially talking about a third party, such as a doctor in a hospital, being given absolute legal authority to decide that his team should be taken from a mentally incapacitated adult for the purposes of researchor, indeed, any purpose listed in Schedule 1, theoretically, even transplantation.
I find that passage quite extraordinary. To my mind, you have to argue in fairly roundabout fashion that it is in a patient's best interests to carry out invasive surgery which is not designed to treat a condition in that patient. Clinically speaking, that can never be true. It can only be true on quite a different level where the considerations were not clinical at all.
Any judgment on whether it is justified to remove bone marrow or a kidney from a mentally incapacitated adult will depend on a whole host of issues, which no doctor, however competent he is professionally, can cover on his own. We should ask the Minister to spend a little time elaborating the Government's intentions regarding the content of the regulations.
On deemed consent for transplantation, what considerations will govern the decision to remove tissue from a patient, and who exactly will have the power to decide? On deemed consent to remove tissue for research, I would very much hope and expect that several conditions would apply. First, that the research
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in question has been approved by a research ethics committee. Secondly, that the tissue for such research should be limited to surplus tissue removed for diagnostic or therapeutic purposes. Thirdly, that the type of research to be permitted in these circumstances should be restricted to research specifically related to incapacity, which could be demonstrated to be of benefit, or potential benefit, to the patient or to others with the same incapacity. Can the Minister give me those assurances?
We are treading on very delicate ground in this clauseconsiderably more delicate than the ground we tread in the rest of the Bill. I hope that the Minister can provide some measure of reassurance on it, although I fear that with the Mental Capacity Bill not yet debated, let alone enacted, she is not likely to be able to go more than a certain distance in putting my mind at rest.
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