Scottish Council on Human Bioethics

15 Morningside Road, Edinburgh EH10 4DP, Tel: 0131 447 6394 or 0774 298 4459

22 August 2005

Press release:

Scottish bioethics body expresses grave ethical concerns relating to the draft Human Tissue (Scotland) Bill

The Scottish Council on Human Bioethics (SCHB) indicated, today, that it was extremely concerned about new changes in the proposed Scottish legislation relating to organ transplantation.

The new provisions proposed in the Human Tissue (Scotland) Bill [1] are being considered by the Health Committee of the Scottish Parliament. A deadline for responses to a consultation on this subject by the Health Committee ends on Wednesday 24 August 2005. [2]

The SCHB is concerned that in Section 7 of this Bill, a ‘nearest relative’ will be able to authorise the removal of body parts from a deceased person for research, education, training or transplantation even though this person may have left no expression of wishes to do so. [3]

In this respect, Dr. Calum MacKellar, Director of Research of the SCHB, indicated that "it would not be right for a ‘nearest relative’, which could mean an unknown relative or just a friend of long-standing, to authorise the use of body parts of a deceased person who has left no wishes" [4] adding that "this is because there is no certainty that the decision of a ‘nearest relative’ is a true reflection of the wishes of the person at the time of his or her death."

Indeed, to go beyond the express and specific wishes of a person by letting others make important decisions on what they ‘assume’ or ‘presume’ are the wishes of this person is what specifically lead to the scandal at Alder Hey Children's Hospital in Liverpool. At this hospital, body parts of children were retained after post-mortem examination when healthcare professionals ‘presumed’ that this would be acceptable to parents without consultation.

In the light of this, Dr. MacKellar stated that "the present draft Human Tissue (Scotland) Bill may result in the removal of organs from deceased persons which is as unacceptable as that which took place in Alder Hey Children’s Hospital in Liverpool” adding "if this Bill is enacted as it stands, it would undermine public confidence in the organ transplantation system."

The SCHB is of the opinion that as with the present voting procedure at elections, people are entitled and have the right, in Scotland, not to make a specific decision. Thus, it would be unacceptable for electoral officers, after an election, to ask the nearest relatives of those who did not vote to ‘presume’ their wishes and thereby cast a vote for them.

In addition, the SCHB is concerned that according to the draft Bill:

• Even if a person has authorised the donation of particular parts for transplantation after death, a ‘nearest relative’ can then authorise the use of additional body parts for research, education and training, which were not originally mentioned in the statement given by the person whilst he or she was still alive.
• A person cannot stop his or her potentially unknown or unreliable ‘nearest relatives’ making the decision to use his or her body parts after death even if he or she does not wish to do so. Indeed in the present UK context there is no national Register in which one can object to organ donation.