15 Morningside Road, Edinburgh EH10 4DP, Tel: 0131 447 6394
16 December 2005
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 on the 20th of December 2005 during stage 2 of the legislative process.
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. [2]
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" [3] 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."
In addition the SCHB is concerned that the assurances given by the Deputy Minister for Health and Community Care (Lewis Macdonald) in his presentation before the Scottish Parliament on the 30th of November 2005 that "The lesson of Alder Hey is that we should not presume consent and that we should encourage authorisation" (Col 21237 of the Official Report) may not be fulfilled.
This is because 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 indeed aware of a number of single persons who are already considering taking their names off the NHS Organ Donor Register and obtaining legal advice if the provisions proposed in Section 7 are not amended by the Scottish Parliament.
1. Human Tissue (Scotland) Bill, http://www.scottish.parliament.uk/business/bills/billsInProgress/humantissue.htm
2. Policy Memorandum, paragraph 12., http://www.scottish.parliament.uk/business/bills/pdfs/b42s2-introd-pm.pdf
3. Section 7(5) provides that ‘unwillingness’ should not be implied simply by the fact that the adult had not provided authorisation as respects the particular purpose, use or part. Human Tissue (Scotland) Bill – Explanatory Notes: http://www.scottish.parliament.uk/business/bills/pdfs/b42s2-introd-en.pdf