§ 10.41 p.m.
§ Mr. Graham Page (Crosby)
Having regard to the hour, Sir Gordon, I do not wish to move the first Amendment and some others standing in my name, but I hope to catch your eye and make my points on the Question "That the Clause stand part of the Bill."
§ Mr. Kenneth Robinson (St. Pancras, North)
I beg to move, in page 1, line 6, to leave out "during his last illness "and to insert:within three months of his death".This Amendment has been put down for the purposes of clarification. The words "during his last illness" seem to be rather a bad piece of Parliamentary drafting and could give rise to a good deal of vagueness in interpretation. When I first thought about the Clause, I asked myself what the words "his last illness" meant. My first reaction was—and I repeat it only at the risk of labouring the obvious—that a man's last illness is the illness which kills him. But then I thought about the people who do not die from an illness at all, but who die, perhaps, from an accident, and who may have been very healthy indeed and whose last illness may have taken place twenty or thirty years previously.
It surely cannot be the intention of the Clause that a wish expressed twenty or thirty years before a man's death brings about the consequences that flow from this Clause. Of course, even if we leave that aspect of it out of the argument and if we act on my original assumption that the last illness means the illness that actually kills a man, again a vital illness can last very easily for ten years, twenty years, and in some cases even longer than that.
For example, a man may suffer from Parkinson's disease and may live with it, getting steadily worse, for a very long period, but in most instances it kills 820 him in the end. Equally, of course, one can look at the other extreme. A man may have a serious illness which is generally regarded as being fatal. He may be expecting to die fairly soon and he may, indeed, express the wish that his body should be used for the purposes covered by the Bill. But, of course, he may die of something different, possibly of something arising out of the other disease, or possibly not.
I hope that it is not being too pedantic to suggest that in that case the wish that he expressed during the illness which did not kill him would, on a strict interpretation of the Clause, not be valid. For these reasons it occurred to us that it would be much better to put in a fixed period within which an expressed wish, either in writing or orally in the presence of two or more witnesses, would carry the consequences that flow from the Clause.
I have suggested a period of three months, but I do not feel strongly about that. It may be thought that it might well be six months. I do not think it was the intention of the Government that it should, perhaps, be much longer than that. It might even be thought advisable to be a little less than three months. For the purpose of clarification, for the purpose of interpretation, and even, if I may be so bold as to say so, from the point of view of Parliamentary drafting, it would be better to have a period such as the one we suggest rather than the all-too-vague phrase "during his last illness".
§ 10.45 p.m.
§ Dr. Horace King (Southampton, Itchen)
The wording of the Clause which the Amendment is intended to alter follows the drafting of the Corneal Grafting Act which Mr. Gerald Williams and I introduced into the House and which has worked rather well. I wish that the hon. Member for Crosby (Mr. Graham Page) had moved his Amendment in page 1, line 5, to leave out from "either" to the end of line 6 and to insert:orally (in the presence of a witness) during his last illness or in writing (purporting to be his writing or to have been signed by him) at any time.821 If there is any criticism of the Clause from the point of view of drafting, it is that it is a little narrow. I think that the Amendment now before us makes it a little easier. The last illness may be a very short one. Three months would, at any rate, be a longer period, and we do not want people in their last hours to be thinking of these things.
In my view, if someone has said in writing at any time, or has expressed to witnesses at any time, his desire that part of his body should be used for beneficent purposes, we should make it as easy as possible for the matter to be dealt with. The Amendment makes it a little easier than the original wording of the Clause, and I therefore support it.
§ Dr. Barnett Stross (Stoke-on-Trent, Central)
I support the Amendment. Everyone wishes to make the Bill as good as it can be. We are all supporters of the Bill.
When my hon. Friend the Member for St. Pancras, North (Mr. K. Robinson) spoke of Parkinson's disease, I had in mind that there are other illnesses which are dramatic in their impact, such as coronary thrombosis or a fatal stroke of the brain. The expression "last illness" is somewhat too vague for our purpose here, which is entirely to help. The words proposed in the Amendment, or words like them—it may well be possible to find better words—would be more suitable.
§ The Parliamentary Secretary to the Ministry of Health (Miss Edith Pitt)
The expression "during his last illness" is generally understood. The hon. Member for St. Pancras, North (Mr. K. Robinson) suggested that it was bad drafting. I assure him that there are respectable precedents for it. There is the Corneal Grafting Act itself, to which the hon. Member for Southampton, Itchen (Dr. King) referred. There is the Births and Deaths Registration Act and there are the cremation regulations, all of which use the same expression. It is accepted as being limited to reference to the illness, or one of the illnesses, which caused or contributed to death.
I accept that in some cases the last illness may be of considerable duration, but the intention in the Bill is that it 822 must have some connection with the events leading to death. The hon. Member for St. Pancras, North thought that it would be valuable to have a fixed period, but has he turned his thoughts in another direction? If we had three months, six months or the shorter period which may, perhaps, have been in his mind, how often, in the case of a long illness such as Parkinson's disease, would one ask the man whether he would bequeath his body or his eyes? One really would not like to contemplate that at least once, and perhaps twice or even three times in the course of a long illness someone might be asked that emotional question.
The expression as it stands has not given rise to any difficulties, either legal or administrative, and I hope that the hon. Gentleman will be prepared to withdraw his Amendment.
§ Mr. K. Robinson
It may be that this phrase in the Bill has not given rise to difficulties in other connections. It has a rather special connotation in a Bill of this kind, as, I think, the hon. Lady recognises. I do not think that the experience of the other Measures, apart from the Corneal Grafting Act, is relevant in this connection. The experience with that Act is somewhat brief.
I hope that the hon. Lady will at least reflect on what I have said, because I do not think that it is her intention that a wish expressed as long ago as twenty or thirty years should count in this case. I have no wish to limit the effect of the Bill. Certainly, I had not contemplated the possibility of anybody repeatedly asking this question. In most cases, it would be an undertaking which would be given voluntarily by the person himself without any provocation or inquiry from other people.
If the hon. Lady will say that she will at least look at the matter again, with a view, possibly, to making an Amendment, if she thinks it desirable, in another place, I shall be happy to withdraw the Amendment. The fact that the phrase which we seek to delete is taken from other Acts may, possibly, have led to insufficient consideration of the matters which I have raised tonight. I hope that the hon. Lady will think over what has been said before the further stages of the Bill in another place.
§ Dr. Stross
Does the hon. Lady's view preclude anybody writing declaring his intentions at any time in his life?
§ Miss Pitt
No, Sir, The latter point is provided for in the Bill. If the intention is in writing, it covers the whole of the span. It is the question of the person who testifies before two witnesses during the course of his last illness which is the subject of the Amendment. I will certainly look at the matter again. We have considered it, as the hon. Member for St. Pancras, North would expect, since he tabled the Amendment, but we reached the conclusion which I have stated. I am as anxious as the hon. Member to be co-operative about the Bill.
§ Mr. K. Robinson
In view of what the Parliamentary Secretary has said, I beg to ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Dr. J. Dickson Mabon (Greenock)
I beg to move, in page 1, line 10, to leave out "may" and to insert "shall".
I realise that the presence of the Joint Under-Secretary of State for Scotland almost betrays a Scottish ritual, but the Amendment is not simply a matter of form. By the Amendment, the Opposition seek to meet one of the points raised during the earlier stages of the Bill. On 20th December, when the question was raised whether "may" could not in practice imply "may not", its permissive nature being such that it might not always be operative, the Minister said that in hospital there would be no difficulties.
In his later comments, the Minister talked about the person who died at home after making it clear that he was willing to allow any of his tissues to be used for medical education, research or treatment. We felt that that was not quite accepted by the Minister. If hon. Members look back to his answer at Column 1257 of the OFFICIAL REPORT for 20th December, they will, perhaps, agree with us. To use the word "shall" instead of "may" would be to impose a firm obligation on the part of the medical superintendent to authorise; in 824 other words, he would have no right but to authorise. If all the other qualifications and conditions were met, he would have to authorise.
Whether it is done is entirely another matter. It falls within the discretion of other people, for example, in the case of corneal grafting, the surgeon who removes the cornea. Obviously, the persons concerned would be free, for their own reasons, not to carry it out. They might not have a suitable hospital bank or refrigeration or be able to find a patient in whom they can plant the tissue. There are various reasons. That, however, is not the point I need labour.
What I am anxious to stress is that we feel that the word "shall" should be used because we feel, although we cannot prove it statistically—nor can the Minister disprove it statistically—that through deaths occurring at home we lose many tissues which could be of great use, and we lose them because of failure on the part of the various persons concerned to carry out the various obligations. It is everybody's business and, as a consequence, it often turns out to be nobody's business. With the word "shall" in the Clause the onus would be on the general practitioner. After all, the general practitioner would be there to certify the death—or ought to be there to certify death; certainly, to issue the certificate. Therefore, the obligation would fall upon him, to decide whether or not to translate into practice the deceased's wish.
We feel that it is rather a burden on a grief-stricken widow or other member of the family at the moment of bereavement to have to remember all the wishes of the deceased and, in particular, this rather ghoulish one. It appears ghoulish to many people. We have a lot to do to popularise this provision and to get people to understand how it could make for human happiness in the end if it passed into extensive practice. That is why we feel that we shall make the Clause more effective by having the proposed phraseology.
§ Dr. King
I hope that the Minister will resist the Amendment. At the back of our minds is the feeling that the will of the dead person should be carried out, but at the back of our minds, too, is the thought that we should not tamper with the feelings of the nearest and dearest who are left behind. This Amendment, if 825 carried, would compel the nearest and dearest of the dead person, and in possession of the body, someone at home, to authorise the removal of parts of the body—even a widow or widower or mother. I hope that the word "may" will be left.
§ Dr. Stross
I, too, am disturbed at the possible implications of this Amendment in some cases. I hope that we shall not have too much difficulty if our constituents die in hospital, but if they die at home circumstances may be different. Certain desires are expressed in life. In life we are in lawful charge of our own bodies. Technically, I doubt if we are lawfully in charge of our bodies when we are dead. Someone else is in charge, and that may be someone who feels that he cannot accept what was promised on behalf of someone he loved very dearly. In such cases I think that we could well afford to leave it alone, and that we should leave in the word "may"
§ Mr. K. Robinson
I would explain to my hon. Friends the Members for Southampton, Itchen (Dr. King) and Stoke-on-Trent, Central (Dr. Stross) that I think they are under a misapprehension. There is an overriding proviso in subsection (2)that the surviving spouse or any surviving relative of the deceased objects to the body being so dealt with,If the person in lawful possession of the body is a surviving relative, there can be no question of the situation described by my hon. Friend the Member for Itchen arising.
What we are saying here is simply that where the person in lawful possession of the body is an institution like a hospital management committee, or anything like that, he should not be in the position to frustrate the wishes of the deceased. In other words, he shall be obliged to give the authorisation. That, as my hon. Friend the Member for Greenock (Dr. Dickson Mabon) explained, does not mean that any dissection of the body takes place; it is merely that he cannot frustrate the wishes of the deceased by failing to make the authorisation.
§ 11.0 p.m.
§ Miss Pitt
I appreciate the point behind the Amendment. It is similar to Greenock (Dr. Dickson Mabon) in the Second Reading debate, when he was concerned about the frustration of the 826 wishes of the deceased in the case of eyes. But to accept the Amendment would be difficult; because its terms cannot be fulfilled. No time limit is suggested; therefore it could be evaded by delay. Indeed, it might not come to light until much too late that the donor had so wished to his body or his eyes.
As the hon. Member for Stoke-on-Trent, Central (Dr. Stross) said, there is no problem where the death takes place in a hospital, nursing home, or other institution—and that accounts for about 50 per cent. of the deaths that take place. There is no question of frustration of the donor's wishes so long as the hospital remains lawfully in possession of the body. That is the situation. It is not the case that the doctor "may", or the doctor "shall". It is the authority responsible in law for possession of the body for the time being with whom we are concerned.
There is no problem with eyes, as I think the hon. Member for Greenock knows, because I wrote to him in the interval between the Second Reading debate and now and told him of the survey we had made following his point. I should not like to pretend that we have all the eyes that could be made available, but there is no evidence of serious frustration. I feel that there would be no practical gain in accepting the Amendment, and I hope that the hon. Member will feel able to ask leave to withdraw it.
§ Dr. Dickson Mabon
I am sorry to hear that reply. It may be that I have presented my case clumsily, but I thought that my learned Friends would have supported me, as in the case of the Corneal Grafting Act, with which my hon. Friend was closely associated. My intention was not to cause any embarrassment to relatives, but to tighten up the transmission of the material donated by the deceased for the use of hospitals. As the Minister has indicated, this is a quantitative Amendment. Perhaps it seems to be too ambitious, but I should like this matter of supply to be referred to again when we discuss the Question "That the Clause stand part of the Bill." In the knowledge that we may be able to tighten up procedures elsewhere, I beg to ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.827
§ Dr. Donald Johnson (Carlisle)
I beg to move, in page 2, line 5, to leave out from "himself" to "that" in line 6 and to insert:in the manner to be prescribed by regulations".On the face of it this Amendment appears a little obscure and uncertain. I hope that even at this late hour the Committee will forgive me if I take a few minutes in explaining it, with a view to sounding some note of warning on one aspect of the Bill. This point was put into my mind by the speech of my noble friend the Member for Hertford (Lord Balniel) in the Second Reading debate—a speech which I should like to see reported more widely than it has been, especially in the medical Press—in which he reminded us rather forcibly of the full implications of the Bill, the essential one being that the body can be available almost immediately after death, without any restriction of time, instead of the forty-eight hours for which previous legislation has provided.
That speech rather reminded me of the gruesome nightmares of my medical student days, when we started in hospital and imagined that we had every possible fatal disease in the textbooks. In those days, our forensic medicine books were not unwilling to admit that doctors occasionally made mistakes, and we read of bodies, apparently dead, being moved to the post mortem room and there reviving. Nowadays, the textbooks are reluctant to admit that for a varying number of hours afterwards the diagnosis of death is not absolute. The person stops breathing, the heart stops, the person looks dead and, in all but the very, very exceptional case, is dead.
It is because of that very exceptional case that I have moved this Amendment, the purpose being that the diagnosis of a single doctor should not be relied on when a body is being used a short time after apparent death. In correspondence, my right hon. Friend told me that he had been advised that the possibility of mistakenly presuming death was very remote. Within a few weeks of my getting that reply, there was the three-quarter column report in The Times of 28th April, 1961, of the case in Leeds where such a thing actually happened.
A man was certified dead, and was moved to the mortuary, where the 828 pathologist discovered that the man was not dead. Death, in that case, did not take place until three hours after the doctor had certified. That man had been electrocuted, and there have been other instances in drowning cases. It is said that those are the only cases where this has happened, but it may be that these are the only cases that gain publicity.
That being so, I submit that, where a body is to be used within a few hours of apparent death, the certificate of a single doctor should not be relied on without the safeguard of some procedure. I do not press the Amendment in its present form, but in view of what I have said, I hope that my hon. Friend will give me an assurance that the matter will be looked at; and that the further advice available to her will be taken before the Bill appears in its final form.
§ Mr. K. Robinson
Will the hon. Gentleman tell the Committee what kind of procedure he has in mind to present the safeguard he wishes to introduce into the Bill?
§ Dr. Johnson
I feel that there are others more distinguished and more experienced than I who could better advise the Minister. I suggest that between now and the time when the Bill is in its final form the matter could be put to a small committee of distinguished advisers.
§ Dr. Stross
I have some sympathy with the spirit which lies behind the Amendment. It would not be difficult to devise a simple method by means of which one or two doctors, by opening a vein, could make sure that there was no circulation, and if there were no circulation after twenty minutes or half-an-hour it might well he presumed that death was certain. The hon. Member for Carlisle (Dr. D. Johnson) spoke of the exceptional case. He should have said the very, very exceptional case.
§ Dr. Stross
But these cases are in the literature and I have met a few. The most fantastic in the literature is that told by Euripides in the play "Alcestis". Hercules, when very drunk, rescued from the shades the wife of Admetus and brought her home to her husband who selfishly had thought that his wife should 829 die instead of himself. In this case the lady, Alcestis, must have been taken out in a coma but she recovered. Hercules, who was very drunk at the time, probably found her sitting up and took her back home.
If we look at the literature over hundreds of years we find that there have been very exceptional cases in which death has been presumed when the person was not dead. In these cases where dissection is to take place and tissue is to be removed fairly early after presumed death it seems that consideration should be given to using certain simple tests which would make certain that death has in fact taken place.
§ Miss Pitt
The purpose of the Amendment is to make sure that life is extinct in these cases before the post mortem. My hon. Friend the Member for Carlisle (Dr. D. Johnson) suggests that we should specify in greater detail the manner in which this should be done and that it should be subject to Parliamentary control through regulations. I have taken advice in the matter and I am advised that to diagnose death respiration and heart sounds must be absent for a continuous period of several minutes. I am also advised that a mistake is an extremely remote possibility—and I am glad to have the reinforcement of the hon. Member for Stoke-on-Trent, Central (Dr. Stross) about that. I admit the instance which came to light, but that does not disprove the general contention that such a situation is very remote.
The hon. Member for Stoke-on-Trent, Central suggested opening a vein. I am advised that the very first steps of the procedure for post mortem or the removal of tissue would show the absence or the presence of life. It seems to me that we do not need this extra precaution.
Express responsibility is placed on the doctors, and I wonder whether it might not be offensive to the members of the profession to lay down the procedure in regulations. There is no indication that this is necessary. I am glad that my hon. Friend said that he would not press the Amendment because I have to advise the Committee not to accept it.
§ Dr. D. Johnson
I am willing to withdraw the Amendment, because I do not 830 want to embarrass the Committee at this late hour by pressing it to a Division, but I must tell my hon. Friend that I do so reluctantly. I do not think that the profession would object to some simple procedure such as the hon. Member for Stoke-on-Trent, Central (Dr. Stross) suggests—opening a vein. An eye can be removed with very little bleeding indeed. That is the fallacy of the Parliamentary Secretary's argument. It would be a very simple procedure. It would not be in the least resented. If I withdraw the Amendment, I hope that my hon. Friend will look at this again. We can discuss it again on Report. Because I do not wish to embarrass the Committee at this late hour, I beg to ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 11.15 p.m.
§ Mr. Graham Page (Crosby)
I beg to move, in page 2, line 6, at the end to insert:(5) In the case of a body lying in a hospital, the person having control and management thereof may authorise the movement of the body to another hospital under his control and management for the purpose of such examination or removal and section nine of the Anatomy Act, 1832, shall not apply to such movement.It has not been mentioned tonight, but I understand that the human tissues around the larynx of my right hon. Friend the Minister are in a bad way. I am sure that the Committee will wish to express sympathy. I hope that I am not out of order in saying that.
The Amendment is an effort to avoid doubts which arise from the Anatomy Act, 1832, over the removal of bodies. I can explain it by an example. The example refers to a teaching hospital and a unit in the group of the teaching hospital, although it might well refer to any other group of hospitals. In this case the research work is done at the main teaching hospital. When a death occurs in a smaller unit hospital attached to the teaching hospital and consent has been given by the person to the use of his body for medical research or education or for the removal of tissue, the body is removed from the small unit to the main teaching hospital so that the medical research or education can proceed. There is not accommodation for that sort of thing in the small hospital.
831 Section 9 of the Anatomy Act lays down certain very strict rules about the removal of bodies. Although the Anatomy Act is usually taken to refer only to the use of bodies by schools of anatomy, Section 9 does not restrict itself to the use of bodies by schools of anatomy. Section 9 reads:Provided always, that in no case shall the body of any person be removed for anatomical examination from any place where such person may have died until after forty-eight hours from the time of such person's decease, nor until after twenty-four hours notice, to be reckoned from the time of such decease, to the inspector of the district, of the intended removal of the body. …Various other conditions are set out in the Section.
If a body is to be of any value at all, it should be used within a very short time of death. If the terms of Section 9 are carried out, the whole exercise is purposeless. Getting the inspector of the Ministry of Health to allow the body to be removed and waiting forty-eight hours for it to be done sets the whole purpose at nought.
In the case I have mentioned, because I thought that the hospital was acting in contravention of Section 9, I took the matter up with the Director of Public Prosecutions. He agreed with my view. I want to read one or two paragraphs from a letter I received from the Director, in which, although he says that he will not take any steps himself, he undoubtedly agrees that this was in breach of Section 9. I shall refer to the small hospital and the main hospital and substitute those words in the letter:Presumably the bodies at the small hospital from time to time are there either under the jurisdiction of the coroner, or under the provisions of the Anatomy Act, 1832, and the necessary consents have been obtained and the notices given under that Act. In the first class of case presumably the coroner's consent to the use of the main hospital mortuary can be obtained for future autopsies and for the removal of existing bodies from the small hospital for this purpose.Clearly the cases with which this Bill deals do not come under the coroner's jurisdiction.In the other class of case—these are the ones of importance to this Bill—once the necessary permissions under the Anatomy Act have been obtained there does not appear to be any restriction as to the place at which the autopsy is performed …832 I draw the attend of the Committee to the phrase:once the necessary permissions under the Anatomy Act have been obtained.The Director goes on to say:… other than that such place shall be licensed for that purpose, and the proper notices given to the inspectors under the Act. Accordingly it would appear that there should be no difficulty in dealing with future autopsies and that the consent of the inspector should be obtained for the removal of those bodies at the small hospital in respect of which notice has already been given that the body is there.It is certainly the opinion of the Director of Public Prosecutions that where one is removing a body from a small unit hospital attached to a teaching hospital to the teaching hospital for the purpose of carrying out either research or education, one has to go through the formalities laid down in Section 9 of the Anatomy Act. I started by saying that this Amendment was designed to remove a doubt. But it is to remove what is almost a certainty. I think it very important that the matter should be put right in this Bill.
I have given an example of a teaching hospital where a body, by consent, is used for the benefit of pupils, but there must be cases in ordinary group hospitals where qualified medical men would like to carry out research on a body which may be lying in one hospital of the group and which they wish to remove to another hospital where research could be undertaken under proper conditions.
§ Miss Pitt
I think that my hon. Friend's Amendment is based on a misunderstanding, because where a body is lying in a hospital the person lawfully in possession is the person managing or controlling that hospital. I am advised that there is nothing contrary to the law for the person in charge to move that body to any place except as provided under Section 9 of the Anatomy Act, 1832, to which my hon. Friend has referred. That Section specifically prohibits the removal of a body to a school of anatomy for the purpose of anatomy until forty-eight hours after death.
If we accept the Amendment it would give a specific power, which I am advised is not needed, for the body to be moved from one hospital to another under the same managers for the purposes of the Bill. Were the Amendment 833 accepted, it could raise doubts about the power of removing to a hospital under the management of another committee or in fact to a teaching hospital.
My hon. Friend has referred to the fact that there are a number of cases where bodies are removed to teaching hospitals. This happens often and I am advised that it is covered by the existing law. We are in an entirely different field from the Anatomy Act and I hope that my hon. Friend will agree to withdraw the Amendment.
§ Dr. Stross
I wonder if the hon. Gentleman the Member for Crosby (Mr. Graham Page)—and I say this with due respect to him—has confused one matter which has led him astray; the fact that the Anatomy Act is concerned only with the dissection of dead bodies for the purposes of medical education.
We know why that Act was produced and it is not concerned with the subject under discussion—portions of tissue to be made available for scientific and healing purposes as a result of a promise made, with the agreement of a close relative. If I am wrong I hope that the Parliamentary Secretary will correct me, but I have the impression that we are not dealing with that 1832 Act, which was especially brought in to regularise a situation which was very disorderly at that time. We are now dealing with an entirely different situation in this Bill, and it is not connected with providing bodies for the purpose of dissection by medical students.
§ Mr. Graham Page
I hope that the hon. Gentleman the Member for Stoke-on-Trent. Central (Dr. Stross) will not narrow the purpose of Clause 1 (1) of the Bill to the removal of parts of bodies for medical purposes. That subsection contains the words:… or for purposes of medical education or research …".I am speaking as a layman and I would not know, but I should have thought that one needs to examine the body to remove those parts and to have the body in a proper place to do that.
I am, therefore, asking for it to be made legal to remove the body from one hospital to another under the same management. The Parliamentary Secretary says that this is already legal, but I have quoted a case in which the advice 834 of the Director of Public Prosecutions was taken and the Director was under the impression—more than that, he was quite firm about it—that the Anatomy Act did apply. If, however, my hon. Friend is correct in saying that it does not apply, then I see no harm in making that absolutely clear in the Bill.
I realise that the Amendment may raise some doubts concerning another matter, but that is merely a question of draftsmanship. I wish to legalise something which the Parliamentary Secretary thinks is already legal but which, as I have pointed out, the Director of Public Prosecutions thinks is illegal.
§ Miss Pitt
I would not wish to accept the Amendment at this stage in case we incorporate something in the Bill which later may raise doubts and which may make more difficult what we all wish to do.
I can assure my hon. Friend the Member for Crosby (Mr. Graham Page) that I will certainly look at this point—particularly his quotation from the Director of Public Prosecutions—before the Bill goes to another place.
§ Amendment, by leave, withdrawn.
§ Mr. K. Robinson
I beg to move, in page 2, line 18, after "institution", to insert:it is hereby declared that the person lawfully in possession of the body is the person having the control and management of that hospital, nursing home or institution and that
§ The Deputy-Chairman
It may be for the convenience Of the Committee if, with this Amendment, we discuss the next Amendment in line 19, leave out from "of" to "by" in line 20 and insert "that person".
§ Mr. Robinson
That will be convenient. This Amendment is, like the last one I moved, solely for the purpose of clarification.
The Parliamentary Secretary will remember that we had some discussion on Second Reading about this strange entity who has never been defined—the person lawfully in possession of the body. In the course of that discussion the Minister told us and, indeed, it is implicit in the 835 Bill, that where the person dies in hospital, the person lawfully in possession of the body is, in fact, the hospital management committee.
All that this Amendment seeks to do is to make that clear, and I feel that it is desirable that this should be stated, in terms, in the Bill. What is in the Bill at the moment is an authority to the hospital management committee to give the necessary authorisation for the purposes of the removal of tissue. But this Clause, in subsection (7), does not say in terms that the hospital management committee—in this case the person having the control and management of the hospital, nursing home or institution—is, in fact, the person lawfully in possession of the body. My hon. Friends and I feel that it is desirable that this should be stated clearly in the Bill.
I am not pressing the hon. Lady to import a definition of the words "the person lawfully in possession of the body", because it would probably be difficult to do so to meet all the circumstances in which death arises. Indeed, we are in a very difficult and nebulous field here since, as the Minister explained on Second Reading, there is no property in a deceased human body. Indeed, in that case I wonder whether that phrase is the right one. Can we really use the phrase "the person in possession of the body" if there is no property in the body? However, I do not press this unduly, though I should have thought that "the person in custody of the body" would be a better phrase.
In the specific case in which a person dies in hospital, which will be the majority of the cases in which the removal of tissue takes place, we feel it desirable to declare in the Bill that "the person lawfully in possession of the body" is the hospital management concerned.
§ Miss Pitt
As the hon. Gentleman has just said, the law does not recognise any property in a body after death. The expression in the Bill,lawfully in possession of the bodyhas been recognised for a long time. It appears in the Anatomy Act, 1832, to which we have already referred, and it appears also in the Corneal Grafting Act. There has been no trouble in the 836 use of that expression, so far as is known.
As the law stands now, the person lawfully in possession of the body is the person responsible for caring for the body after the death and seeing to its disposal. In the absence of executors—the hon. Gentleman raised this point on Second Reading—there is a common law duty to see that the body is buried, and the person lawfully in possession is normally the occupier of the premises where the body lies, or the person who has the body.
In the case of hospitals and institutions, this will be the managers until the executors or the relatives come to claim the body. This is the position under the Bill and under the Corneal Grafting Act. Hospital authorities can act as the person lawfully in charge unless and until the deceased's executors or relatives or other persons with a right to do so claim the body. While they are in possession of the body they are entitled to authorise the removal of parts of the body in accordance with the provisions and the safeguards of this Bill.
I am advised that to accept the Amendment would go further than I imagine the hon. Gentleman has in mind. It would mean that the persons lawfully in possession of the body, particularly in the case of the hospital managers, could deny the relatives or the executors that body and could take their stand against all comers. I think that is not the intention that the hon. Gentleman has in mind. Certainly it would alter the general law if that were what he had in mind, and I do not think that the way to do that is through the medium of this Bill.
§ Mr. K. Robinson
It was certainly not my intention to give such an overriding power to a hospital management committee in the circumstances described by the hon. Lady.
I think that this Amendment was worth moving because we have learned a bit more than we learned on Second Reading about this curious figment. I presume, since it is not defined in any Statute, that the law as expounded by the hon. Lady is the result of decisions in the courts.
However, I am satisfied that it would not improve the Bill to press this Amendment, and in the circumstances I 837 beg to ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Motion made, and Question proposed, That the Clause stand part of the Bill.
§ Dr. Dickson Mabon
I wish to raise several points. The first thing I wish to say is that I am sure everyone agrees that we have a great deal to do in the way of popularising the donation of human tissue for the benefit of the living. We tend in these debates to concentrate on and to talk about the donating of eyes, but there is no doubt that in ten or twenty years' time many tissues will be recognised by medical science as being able to be transferred with good effect. People will gradually get to understand this. It is only in recent times that the transfer of corneas has come into being.
I have been in correspondence with a number of people on the subject, particularly with one very energetic and almost blind man. He is not registered as a blind person. He writes to me very frequently on the subject. He points out that the Corneal Grafting Bill, now an Act, introduced by my hon Friend did a very great deal to encourage this kind of procedure. I have a letter here from this man, and it is rather important in the light of what the Parliamentary Secretary said to me about correspondence between her Ministry and myself on the question of corneal grafting. The letter reads:I was told in 1954 … that I should consider transferring from the East Grinstead Hospital that I was then attending to a Glasgow hospital. I did so in 1956 and jumped out of the frying pan into the fire, as, of course, it was abvious that I would go to the bottom of the list, and it is now 1961 and I am at the top of the list".One realises that however satisfactory the position may look statistically in relation to England and Wales, it is certainly not satisfactory in relation to Scotland. None of us can be satisfied with the position until the supply of tissues keeps up with the demand.
People should not have to wait five, ten or fifteen years for this treatment, particularly when we believe that there are donors available who have indicated their wish to donate or people who know nothing of the matter and who have never been invited to donate tissue. Why 838 cannot we have in hospital the same kind of procedure that is followed when a patient is to undergo an operation? In that case the doctor has to ask the patient to sign a certificate to the effect that he accepts the risk of anaesthesia and is willing to undergo the operation under an anaesthetic. The next of kin is aware of this procedure, and in the case of a child the mother or father gives legal sanction.
It would surely be reasonable to have a form of declaration to be signed by patients in hospital agreeing to the removal of such human tissue as may be required for whatever surgical purpose it may be after death. In fact, the next of kin should be asked there and then to endorse the declaration made by the donor. We have twice been told previously that under the Corneal Grafting Act the next of kin of the person in hospital has no veto. We are told that under this Bill the position will be the same. I cannot see any objection to our having a provision of this kind. It would bring to the attention of patients the fact that they were in the position to help many of their fellows after they had passed over.
There is another matter which has come to my attention. I have no wish to name the noble Lord concerned. He is a very prominent person in Government service. He recently had cause to arrange for his mother to have the corneas of her eyes donated after death. It was not a very pleasant affair to arrange, and there were numerous administrative difficulties. If these are the difficulties experienced by a noble Lord, what must they be for an obscure commoner? Even after that, when the noble Lord's mother had died and the eyes were removed, he received a bill from the surgeon. We managed to clear the point up with the Secretary of State for Scotland, that no charge ought to have been made for that procedure.
I want the hon. Lady the Parliamentary Secretary to tell us what idea she has for popularising this matter. Also, will she confirm that no monetary obligation falls upon anyone as a consequence of a person being generous enough to donate his tissues for the benefit of the community.
§ Mr. Graham Page
The hon. Member for Greenock (Dr. Dickson Mabon) is quite right to say that we want to make 839 the Clause as simple as possible so that people will understand it and it will be, as he put it, popularised and will be used.
On an earlier Amendment, my hon. Friend the Parliamentary Secretary referred to the long illness and said that we should not wish to ask the patient to repeat every three months that he wished parts of his body to be left for this purpose. That raised a doubt at once about the words "during his last illness" in relation to the words "in writing" I hope that my hon. Friend will consider the first two lines of the Clause again and put it beyond doubt that neither the provision as to witnesses nor the provision as to "during his last illness" governs the words "in writing."
Why two witnesses? A few weeks ago I read in a report—I forget which it was—that most patients go through an agony of embarrassment when they are in hospital. They will lie there not asking for a glass of water for hours, until they are so dry that they can hardly ask, because they are in strange surroundings and they are embarrassed to be there. What, then, will be the embarrassment of asking two people to come and stand by one's bed so that one may say that one wishes one's body to be used for therapeutic purposes or for medical research? A word to the sister or a word to the charge-nurse should he sufficient—not two witnesses. The Clause will not work easily if it is so formal as to require a patient in hospital having to have two witnesses, let alone the patient in his own home having to gather witnesses in order to tell them.
Why was the word "request" used in the Clause? Is a patient likely to say, "I ask you", or "I request you to use my body"? Surely, he is more likely to express a wish or desire. Might it not be better to use the expression, "express a desire" or "express a wish"? Again, I think it is much too formal.
At what age is a person capable of making a request of this sort? In various sections of the law, the age of consent can be seven, 12, 16, 18 or 21 years. Let us suppose that there is a request by a teen-ager. Will that be sufficient under the Clause, or will the person to whom the request is made be left in doubt about whether it is a proper request? Can we provide that 840 the request on behalf of very young children can be made by the guardian?
The practice of human grafting is growing rapidly, particularly amongst the young and the use of young tissues. A particular branch of research is being undertaken in that sphere, not only the transfer from living bodies, such as one of the kidneys, but from the young dead body. We ought to consider how the tissues of the young or of those of teenage can be used in the event of their death. I hope that we will not apply any rules about the age of making a will, but that somehow we can say that a request by a responsible person, even though he is not 21 years of age, can be taken as a request under the Clause.
The Clause refers to the removal of a part of the body, but only to the removal of a part, for medical education or research. Surely, for the purpose of medical education and research, one may often require the removal of the whole body. This is somewhat related to my earlier Amendment, but it is a separate point in itself. When the Bill becomes an Act, it can be of great value from the viewpoint of research and education if it deals with the examination of bodies for the purpose of research and education and not merely the removal of parts of the body. I hope we can put it beyond doubt that moving the whole body for examination or research is legal under Clause 1.
I should like my hon. Friend the Parliamentary Secretary to confirm a point of interpretation. Under subsection (1), a person may give a request that his body maybe used after his death for therapeutic purposes or for purposes of medical education or researchSome people might wish parts of their body to be used for therapeutic purposes but would not like the idea of their body being used for research or education. They might have a horror of a lot of pupils standing round. If they felt that they could give a specific request for therapeutic purposes and that there would be no chance of their body being used for other purposes, they might make the request. If, however, they felt that they were giving the request for therapeutic purposes and their body might be used for teaching, they might not give the request.
841 From subsection (2) there is doubt whether the person eventually in charge of the body can give permission for its use for any purpose. I should like my hon. Friend to say that if a request is made for a specific purpose, the body can be used only for that specific purpose. In that case, more people are likely to give consent. I am sorry to have taken so long over these points, but each of them is of importance in making the Clause clear and ensuring that it will be used by people both when they are in hospital and when they are ill at home.
§ Dr. King
The hon. Member for Crosby (Mr. Graham Page) always brings great gifts to debates of this kind. I do not wish to follow him in the legal and, some of them, legalistic points which he has raised, but I want to follow up what my hon. Friend the Member for Greenock (Dr. Dickson Mabon) said in opening this short debate. This is almost the heart of the Bill. This is a wonderful piece of legislation, this Clause particularly. I urge the Minister to make full use of the powers given under the Clause to give the public notice of what can be done.
We have brought back sight to some blind. When we were campaigning for the original Bill about corneal grafting we showed on television examples of men who had been given back sight because behind the diseased cornea was a perfect eye. I am hoping that when this Clause is carried the Ministry will tell to the public by all kinds of ways some of the wonders of modern science to which my hon. Friend the Member for Greenock, a medical man, referred, and which are in their infancy. I am convinced that, if the British public knew what was possible, at least 90 per cent. of them would want their bodies after death to be used for some beneficent purpose.
We want to make it easy. I do not like the idea that when one goes to hospital one signs a document saying one wants one's body to be so used. That is not the psychological moment, when one is just going into an operation, to ask what they do if the operation fails. The psychological moment is when one is in health. I should like there to be a certificate anybody could sign when quite well, certainly not at the moment of the last sickness.
842 My dream is that every hospital ultimately will have a record of pretty well 90 per cent. of the British public each of whom will have said, "If part of my body can be used to bring comfort and health to somebody else, I shall be happy that it should be so used." I hope that the Minister will think of practical ways to achieve this. It is probably literally true to say that we have just gat enough eyes for corneal grafting. I think that every grafting hospital has a few, but what the surgeons want is a bank of eyes. They want to be able to choose between a number of eyes what is best for their purposes. In the same way, these new tissue grafters want to be able to choose the best tissues for their purposes.
Everything that can be done to give publicity to this great new discovery I hope the Minister will do.
§ Dr. Stross
It is, of course, obsolutely true that the power we give in this Clause, which we hope will be fully used, will be of benefit to people for all time, and, as time goes on, of more and more benefit, as our knowledge waxes greater and our scientific approach improves. That is the point of what my hon. Friend the Member for Southampton, Itchen (Dr. King) said. We must find a method by means of which the public at large will feel that it is a true joy to give such a gift. I also agree with my hon. Friend when he says that as a result of publicity we can utimately persuade people to offer parts of their bodies which may be useful while they are well. That is the right way, I am quite sure.
I know that my hon. Friend the Member for Greenock (Dr. Dickson Mabon), who is so well qualified to speak on such matters, will agree with me that people like himself and myself must be careful that we do not have too tough an outlook on these matters, an outlook which is insensitive to what the lay person may feel. Certainly I try to guard myself against that. I am sure that we must be a little careful. There is no doubt about it that as time goes by, and by the use of these modern methods of disseminating knowledge, the excitement at the discovery of these new life-saving and health-saving techniques will answer the problem about which we are talking. It is right that the Parliamentary Secretary and her right hon. Friend should encourage a full dissemination of 843 knowledge, and make it known how wonderful and exciting it is that we can give something for which we have no longer any use ourselves to bring health and perhaps life to someone who otherwise would be deprived.
The hon. Member for Crosby (Mr. Graham Page) made a very real point when he read a fragment from subsection (1) and aked whether we should not have it made clear. He pointed out that there is a great difference between a body being used for therapeutic purposes and for purposes of medical education or research. We should not cloud the issue. We must not deceive anybody. Many people would gladly accept that their bodies, or parts of their bodies—or even the bodies or parts of the bodies of persons they cared for very deeply—should be offered, but would not wish the bodies of their beloved ones to be handed over for dissection to a medical school. We must make it clear, so that no one will be deceived. In any event, the Clause is so good that we should have no fears for the future.
§ Miss Joan Vickers (Plymouth, Devonport)
I want to follow up what has been said about the need for publicity. It is very important. One thing that may put people off is the Title of the Bill, but we have not yet been able to think of a better one. As a lay person, I suggest that we might use a lay organisation—the Red Cross—to put these matters over to the general public, and to explain what can be done with various parts of the human body. It is in touch with the very people who are likely to be willing to give this service, and who may also be in touch with those who are willing to offer their bodies. The Red Cross might also help to bring to the attention of the public the point raised by the hon. Member for Stoke-on-Trent, Central (Dr. Stross). I hope that my hon. Friend will consider this when we are trying to put over to the public the great benefit that we can bring to people. It is too complicated as set out in the Clause.
§ Miss Pitt
The hon. Member for Greenock (Dr. Dickson Mabon) asked what we could do about popularising the Bill. Perhaps that is not the best way of speaking about it, but I cannot think of another. I assure him and other hon. 844 Members who raised the same point that we have it very much in mind. During the Second Reading debate my right hon. Friend said that the Royal National Institute for the Blind has it in mind to issue a new leaflet, and that we are cooperating with it on the subject of the gift of eyes for corneal grafts. The leaflet is in draft, and it is the intention to launch it at the same time as publicity for the Bill, when the Bill has reached its final stages. Obviously, it would not be fully effective if the earlier publicity about eyes had started off and we then repealed the Corneal Grafting Act and brought in this comprehensive Bill.
To try to get the maximum impact we intend to issue this leaflet about eyes and tell hospitals about the Bill and its operation. We intend to remind regional hospital boards about arrangements for the supply of eyes, particularly on an inter-hospital basis, and to tell general practitioners, through executive councils, about the leaflets relating to eyes, and about the other purposes of the Bill, so that they, in turn, may advise their patients.
Publicity for eyes will probably command the maximum appeal. There is already public interest, and great sympathy with the thought that by donating one's eyes after death one can help the living. There has been a change in the public outlook or we should not be talking about this Bill so freely now, but I am not sure that we have yet got to the stage where we are ready for a great publicity drive on the general question of donating bodies or parts of bodies.
We intend to ensure that such publicity as we can, and certainly such help as we can give, will be undertaken when the Bill has passed its final stages, and I promise to bear in mind the suggestion of my hon. Friend the Member for Plymouth, Devonport (Miss Vickers) that we might do this through one of the voluntary organisations—
§ Mr. W. R. van Straubenzee (Wokingham)
Before my hon. Friend leaves that point, might I also suggest that she should contact the profession of solicitors, to whom probably people go most frequently at that solemn moment when they have faced the possibility of death?
§ Miss Pitt
I shall certainly bear that suggestion in mind.
The hon. Member for Greenock referred to eyes, and particularly to the time people had to wait for the corneal grafting operation. As I said on an earlier Amendment, there is a shortage in some areas, and the demand is also increasing as operative techniques develop. One of the present difficulties is that eyes must be removed within four hours of death, although—who knows—that pattern, too, may change.
We think that one way in which the supply can be helped is by hospitals enrolling a substantial number of the fit people in their area who are willing to consider this gift, and near the corneal grafting centres so that the eyes can quickly be made available. That, in part, answers the point about the eye bank.
The hon. Member mentioned a waiting time of as much as two years, but it is, perhaps, not quite as long as that. I had a quick look at the survey I told him we undertook after he raised the question during Second Reading. On average it is about twelve months. We find periods like twelve months, eighteen months, fifteen months, two months, two years, three to six months. I would say an average of about twelve months, but one would like to improve on that. I can assure the hon. Gentleman that the costs would be the responsibility of the hospital receiving the gift.
My hon. Friend the Member for Crosby (Mr. Graham Page) asked about writing. I think that the words… in writing at any time …are as clear as words can be. I do not think that they are qualified by the words… in the presence of two or more witnesses. …Indeed, I feel that two witnesses is quite a useful provision in the Bill, because one can corroborate the other if questions or difficulties arise later. Since I have already said that about 50 per cent. of deaths takes place in hospitals or institutions, it would be very natural for a relative and a nurse to be the witnesses.
My hon. Friend asked about the word "request." This is a completely general non-technical word. It does not require 846 the donor to use a particular form of words. He also asked whether young people are eligible, and the answer is that there is no age limit. He asked about the wording of the Bill in relation to people who might be willing to donate their bodies or part of their bodies for therapeutic purposes, and wanted to know whether it also extended to the other purposes.
If they wished to donate for a particular therapeutic purpose, the bodies would be so used. If the request is made for a specific purpose under Clause 1 (1), the body can be used only for that purpose, but this does not apply to subsection (2), where no specific request has been made. Nevertheless, obviously, the body would not be used for a purpose when a request had been expressed to the contrary.
I think that that meets all the points which have been raised on the Clause. I am most grateful for the expressions of help and support which have been included in the comments, and I hope that we shall enjoy the support of hon. Members when we reach the point of needing publicity fully to implement the Bill.
§ Question put and agreed to.
§ Clause ordered to stand part of the Bill.