HC Deb 05 November 1976 vol 918 cc1807-18

Motion made, and Question proposed, That this House do now adjourn.—[Mr. Thomas Cox.]

4.15 p.m.

Mr. David Crouch (Canterbury)

The matter that I wish to raise before the House adjourns concerns the death of Mr. Robert James Allan at the Birmingham General Hospital on 14th June. He had been admitted at 3 a.m., suffering from severe head injuries following a fall downstairs. The hospital authorities tried to save his life. They diagnosed that he was suffering from severe brain injury. His condition deteriorated, and at about 2.30 p.m. on 14th June he ceased breathing. The senior consultant surgeon at the hospital certified his death at 2.15 p.m.

In the inquest report, which I have studied carefully, the report of the senior consultant surgeon reads as follows: The deceased was kept alive with artificial respiration following this, and his heart was still beating. He went on in his evidence to say: The respirator was not turned off until the transplant at 4.53 p.m. The surgeon, a Dr. Battan, was cross-examined by the solicitor representing the widow of Mr. Allan. In answer to the cross-examination the surgeon said: I did not make any inquiries as to whether there was anybody who could say whether he would have objected to having his kidneys removed. That is the story of the last 14 hours in the life of Robert Allan. He was 31. The inquest took place on 7th September to establish the cause of death. The coroner's verdict was Subdeural haemorrhage. Fracture at base of skull. Accidental death. I do not dispute that finding. It was not the coroner's duty to find out anything about what was done with Mr. Allan's body after death, but that is what I am concerned about. That is what concerns his widow and his son, Dale, who has also been to see me. That is what Parliament should be concerned about, and that is what the Press is concerned about, as it has already shown in this case. That is what the public wants to know.

Robert Allan was a building worker. He drove mechanical diggers. Like so many workers in such jobs, he went wherever he could find work. It had always been like that since he had been married. Shortly before he died he had been working on a Birmingham building site. It is true that he had in this way been separated from his wife and family, who live in my constituency in Whit-stable. His wife and family are still my constituents.

Mr. and Mrs. Allan had been separated in that way for six years, but his wife kept in touch with him regularly. She had spoken to him on the telephone in Birmingham on 7th, 10th and 11th June. The last phone call was made three days before the accident and his death.

His son Dale has said he telephoned his father every week.

Mrs. Allan said that their marriage had to some extent broken up because her husband had a drink problem. She said that she still cared for him and was worried about him. I have interviewed Mrs. Allan and I am convinced that she had genuine feelings for her late husband. She had not forgotten him, neither had she forgotten the time when they had discussed becoming kidney donors. She had tried to persuade him to become a donor and to sign a donor's card. She said that at this suggestion he went, to quote her word, "berserk". He said he would not sign it. He expressed the opinion that doctors would always try harder to save one's life if one did not carry such a card. He was passionately against being a kidney donor, and yet he became one at 4.53 pm on 14th June.

How did this happen? Are there no laws or guidelines to the medical authorities to protect a person's human rights in such a delicate and personal matter? There is indeed an Act of Parliament— the Human Tissue Act of 1961. There is also a Health Service circular of guidance to NHS authorities dated June 1975. Both are explicit. I am not a lawyer, nor am I a doctor, but in my judgment neither the Act nor the circular was observed in this case.

Explaining Section 1(2) of the Act, the circular says: Where the deceased has not requested that his body or part of it may be used … the person lawfully in possession of the body may still authorise the removal of any parts of it for similar purposes if having made such reasonable inquiry as may be practicable, he has no reason to believe that the deceased in his lifetime had expressed any objection to this or that the surviving spouse or any surviving relative objects.

The circular goes on to say that any relative of a deceased person may object to the use of the body for the purposes specified and that this will override a lack of objection on the part of other relatives, but not the deceased person's own wishes. The person lawfully in possession of the body in hospital at the time of death is the area health authority or certain specified persons authorised by it.

I ask the House to note what the circular says in paragraph 11 about the authorisation of the removal of any part of a dead person's body: Where it is known that a potential donor has relatives but it has not been possible to contact any of them, a person giving authority for organ removal must be especially careful to ensure that the requirements of the Act with regard to the making of inquiries has been met. It is not enough to say in a case where organs must be removed very soon after death that on inquiry is practicable. There is also a note in paragraph 13 of the circular about the coroner's rights, which have to be respected: Where there is reason to believe that the Coroner may require an inquest or post mortem examination to be held, authority to remove parts of the body may not be given nor may a part be removed without the Coroner's consent. In law a Coroner has no jurisdiction until death has taken place but in cases where organs, e.g. kidneys, must be removed very soon after death, Coroner's may wish to be informed of the proposed course of action before death is reported. There is no evidence in this case that the coroner was so notified.

I do not consider that the medical authorities at Birmingham General Hospital observed and adhered to the Act with sufficient care. I do not consider that they made such reasonable inquiry as may be practicable. They did not try hard enough to find out Robert Allan's views or whether his surviving spouse or any surviving relative might object.

Mr. Allan was accompanied into the hospital by a woman whom the doctors assumed to be his wife. After a few hours, they discovered that she was only a friend, a Mrs. McKewan. The only mention made in the coroner's report of the inquest of an attempt to contact his wife is in the statement of Dr. Battan, who said: We asked the police to trace his wife. That appears to have been at around 2.30 p.m. on 14th June. Robert Allan was already dead then, nearly 12 hours after his admission to the hospital.

Mrs. McKewan, on the other hand, tried to find his wife's address by going to his flat at about 10 a.m. She said in the report of her evidence at the inquest: I knew she lived in Whitstable. She had told Police Constable Dean at 3 a.m. at the time of the accident that she was a friend of Mr. Allan and not his wife. I repeat—not his wife.

Sergeant Helpman of Queen's Road Police Station, Aston, stated that P.C. Hallgarth was handed a report to trace Mr. Allan's wife at some time after 1.40 p.m. Mrs. Allan believes that the police tried to trace her within two or three hours of the accident.

The Minister has, with great courtesy, told me of his inquiries into this whole affair. He has told me that Mrs. McKewan telephoned the police at 10 p.m. on the 14th and gave them two addresses which she had found and which might help them find Mrs. Allan. Mrs. Allan was so traced and went to the hospital the next day, the 15th.

The question I ask the Minister is: why did the hospital authorities delay for 12 hours before trying to trace Allan's wife? Police Constable Dean knew that Mrs. McKewan was only a friend. Was that reported to the hospital? If not, why not? When the doctors knew that Mrs. McKewan was not his wife, why did they assume that she could express an opinion on his views about being a kidney donor? Were they especially careful to ensure that the requirements of the Act … have been met? I do not think so. The circular says: It is not enough to say … that no inquiry is practicable". I submit that proper inquiries were not made.

Consider Mrs. Allan on her arrival at Birmingham on the 15th. It was a terribly tragic day for her, and she was no doubt extremely distraught. She tells me that the doctor she saw at the hospital "showed her no sympathy whatever"—those are her words to me—and that he made her feel as if she was intruding. She says: He spoke of my husband as a perfectly healthy specimen. She said that they told her that he was dead on arrival at the hospital. That was not so. He died 14 hours after admission.

Mrs. Allan has told me another piece of disturbing evidence in this case of which I have written to the Minister. When she went round to her husband's flat she found his wallet, which appeared to have been ripped open in a hurry. There was nothing in it that would have identified him—no photographs and no addresses. She says that this was utterly unlike him, as he was a very tidy man, who liked to keep things in order and to keep momentos and photographs of his family. She believes that someone had got there before her and "removed the evidence"—evidence that she was his wife and lived at 67 St. John's Hospital Road, Swalecliffe, Whitstable.

This is a very worrying case. It is the most worrying case that I have ever had to speak to on an Adjournment debate in this House. I speak advisedly as a member of the regional health authority and, therefore, one who might be said to be on the side of the doctors.

The fact that Mrs. Allan had been separated from her husband is not relevant. There is nothing in the Act about the marital location of the spouse. The Act is there to safeguard the public and to respect their views on this very personal subject. A person's views regarding his or her body must be respected.

I have the highest regard for the medical profession and, in particular, for their constant effort and search to save lives. Kidney transplants are a magnificent break-through in medical science. They have given new hope to thousands—and literally new life to thousands more people. We need more kidneys to save more lives. We are short of them today, and people are dying each year because of a lack of them. That is why I support the kidney donor scheme. I want to see more publicity for it and to attract more people to come forward as donors voluntarily, declaring it.

In this tragic case of the death of Robert Allan, I do understand that two people have been given new life with his kidneys. He did not waste his life. But his widow says that this transplant would have been against his wishes and that she herself would never have given permission. I believe that, even though lives have been saved, it was wrong that those personal views of the individual were not observed and were not obtained. I believe that it was wrong that this transplant should have been made.

The public must be assured that the medical authorities do not have a free hand in these matters. That is why the Human Tissue Act was passed in 1961. The public today are very concerned, and are looking to see that Parliament cares. I speak as one who wants to see an expansion of the care that the health services can give the public, who are their patients, sometimes, in these tragic cases. However, above all I want to see that Parliament exercises that amount of authority which ensures that the public's rights—the individual's human rights— are never forgotten.

4.30 p.m.

The Minister of State, Department of Health and Social Security (Mr. Roland Moyle)

I am grateful to the hon. Member for raising this matter, because it enables us to discuss a practical example of the way in which the Human Tissue Act works.

It is always sad when somebody's best motivated actions and efforts result, as in this case, in grief and distress for another person. I hope that I can reassure the House and Mrs. Allan that every effort was made to save the life of her late husband and that, when it became clear that all the efforts of the hospital could not succeed, the authorities acted in a proper manner before Mr. Allan's kidneys were removed. On the basis of the information that it had at the time, the hospital acted in a proper manner.

I shall first deal with the facts of the specific case. Mr. Allan was admitted to the Birmingham General Hospital at 3 a.m. on Monday 14th June suffering from severe head injuries. At the time of his admission he was accompanied by a woman who was taken to be his wife. In the course of the next few hours it became clear that this woman was not his wife but a Mrs. B. McKewan. At the inquest Mrs. McKewan stated that Mr. and Mrs. Allan had been separated for six years, and that she had been a close friend of Mr. Allan. The police were then contacted and asked to assist in tracing Mr. Allan's wife. The police have subsequently been consulted and checked their records for their 6 a.m. to 2 p.m. shift on that day, which have indicated that they carried out a full search for Mr. Allan's wife. The consultant concerned initially requested the police to make a search and in fact contacted them in total on three occasions regarding the progress of their search.

The decision that Mr. Allan was dead and that the kidneys should be removed was taken at 5 p.m. No written consent was obtained, as the staff were aware of the existence of a wife who could not be located. However, the registrar concerned with the case telephoned Mrs. McKewan during the afternoon and inquired of her whether or not Mr. Allan would have had any objections to the removal of his kidneys, and she indicated that he would have had no objections. This discussion took place at about 3.45 p.m.

At 10 p.m. Mrs. McKewan telephoned the police and gave them two addresses which she had found and which she thought might possibly assist them in locating Mr. Allan's wife. It was through these addresses that the police were eventually able to contact Mrs. Allan, who attended the hospital the following day—15th June. With regard to the point concerning the handling of Mr. Allan's wallet, about which the hon. Member for Canterbury (Mr. Crouch) is so concerned, the hospital patients' property records show that the existence of the wallet was recorded but that no other papers or mementoes were recorded at the same time. The coroner's officer, prior to the inquest, raised the question of the possibility of there being documentation in the wallet which might have assisted in locating Mr. Allan's wife. In view of this, the sector administrator at the hospital immediately interviewed the two nurses concerned, who were emphatic that no such contents ever existed. The routine procedure at the general hospital would have required any such documentation, even down to individual envelopes, being listed separately on the property record, in addition to cash and other valuables.

I now turn to the broader issues. The legislation that governs the use of parts of a deceased person's body for therapeutic purposes, including transplantation, is the Human Tissue Act 1961. This says that, save in a case where the deceased person has made express wish to this effect, organ removal may be authorised only after there has been such reasonable inquiry as may be practicable into the views of the deceased and of any surviving relatives. It is not possible to lay down any hard and fast definition of "such reasonable inquiry as may be practicable", which must always be interpreted in the light of the facts of an individual case. If kidneys are to be used for transplantation they must be removed very shortly after death—preferably within half an hour.

Because of this, it has been argued on occasion that no inquiry can be reasonable or practicable. I do not accept this, and only last year my Department so advised health authorities. Inevitably, the fact that Mr. and Mrs. Allan had been separated for six years must further cloud the issue. In this case the hospital authorities, through the police, made considerable efforts to trace Mrs. Allan, and when these efforts failed, the matter was discussed with Mrs. McKewan, who was Mr. Allan's close friend, as far as the hospital could ascertain. In what must have been difficult circumstances, it is my opinion that the hospital acted in a proper and reasonable manner.

Mr. Crouch

My concern is that there is confusion among medical authorities, doctors and consultants about the exact meaning of the Act and the explanation of the Act given in the Department's circular. I have discussed the matter with the BMA and medical authorities at regional level. Consultants are worried, as a result of this case, about what steps they should take to help in the future. The Minister should consider giving still further clarification about what "practicable" steps should be taken at a time when there is a need for urgency.

Mr. Moyle

That is a point of view, but there are considerable difficulties in providing further guidance. We wish to reassure the public and the profession as much as possible, and have therefore issued extensive guidance. But, given the pressures of time and some other pressures to which I shall come shortly, we have been able to think of no better solution than to leave the judgment as to what is a "reasonable" and "practicable" inquiry to the people on the spot.

In recent years it has been argued that the Human Tissue Act should be changed. Some have argued that before organs may be removed the next of kin must give specific consent. Others, mindful of the critical shortage of kidneys for transplantation, as we all must be, have argued that consent should be presumed in the absence of a previously recorded objection by the deceased, thereby giving relatives no say. Having given careful consideration to these arguments, we still conclude, on the basis of present evidence, that the existing system is the best.

I think it right that, if the deceased has requested that his kidneys should be used, the necessary authority may be given forthwith. In other cases the requirements of the Act are such that the present system is close to one in which the next-of-kin's specific consent, where available, is required. In the great majority of cases the two systems would be to all intents and purposes indistinguishable.

It would be wrong for a health authority passively to await relatives' objections and in their absence after a certain time authorise organ removal. The onus is clearly on the health authority to make positive attempts to discover any such objections. I think that the health authority did this in the case we have in mind, albeit not with a great deal of success.

The circumstances in which the removal of kidneys will be contemplated will almost always involve a sudden death—for example, after a road accident. It requires no great imagination to envisage the situation. Inevitably, relatives of the deceased will be particularly distressed. At this trying time, I think there is considerable advantage in placing the responsibility for the final authorisation on officers and doctors of the health authority. They are in a position, as far as anybody is, to know the requirements of the law. They will, I hope, make the necessary inquiries in a sensitive manner and allow the views of relatives to determine a decision to give or withhold authorisation for organ removal.

In conclusion, I wish to make it clear that it is a doctor's clear responsibility to give his patient the best possible treatment. That responsibility can never be in any way diminished because the removal of kidneys is considered. That almost goes without saying.

I hope that I have been able to reassure the hon. Member that both in this case and generally the removal of kidneys is carried out in a legal, ethical and sympathetic manner in so far as the legislation and guidance by the Department can make it so. A kidney transplant can offer a patient suffering from chronic renal failure the opportunity to live a near normal life once again. But we must face the problem that at present an insufficient number of kidneys are becoming available to meet the need and that doctors can help fewer than half of their patients who might benefit in this way.

One of the ways in which this problem can be overcome is by people considering their own position on this matter and making their own positive wishes known by carrying kidney donor cards. The hon. Gentleman and I are in total agreement on the fact that that is an ideal solution. In such circumstances all doubt is removed and the position is made much easier for the health authority, the doctors and the deceased's relatives.

In this case, I apologise on behalf of the NHS for the fact that our best-laid attempts to provide sympathetic and clear procedures were clearly unsuccessful in the circumstances which surrounded the unfortunate accident suffered by Mr. Allan. It is regrettable that this happened. I think that in the circumstances the hospital authorities did their best to try to trace relatives and to make inquiries to discover the exact position. I am satisfied that they behaved in a reasonable manner, despite the fact that in many ways it was not a totally successful procedure.

Mr. Crouch

I would be concerned if the Minister's remarks in this debate might be construed by the medical profession and the public as indicating that in view of the need for kidneys there is perhaps not so much need to take care in respect of the obtaining of consent and being sure that it has been given. I would encourage him in the need for people to come forward, but I am concerned lest his reply should be considered as encouraging hospital authorities—

Mr. Deputy Speaker (Mr. Oscar Murton)

Order. I understand that the hon. Gentleman is asking a question.

Mr. Moyle

I am sorry if I gave that impression to the hon. Gentleman. My aim was to set out the considerable procedures which have to be followed at law and in departmental circulars in situations where kidney donation has to be considered, and to emphasise the considerable lengths to which hospitals have to go to try to contact relatives. I wanted to make it absolutely clear that the prime consideration was the care of the patient. I was so adamant about that matter that I wondered whether it was worth while saying it. It seemed such an obvious point. Health authorities are under an obligation to do their utmost to discover, in the absence of a clear statement from the kidney donor himself, who his closest surviving relatives are and to make clear the position so far as they can. I take my stand on that principle.

Question put and agreed to.

Adjourned accordingly at sixteen minutes to Five o'clock.