§ 7.3 p.m.
§ Lord Henley
My Lords, I beg to move that this Bill be now read a second time. The Human Organ Transplants Bill did not feature in the Government's legislative programme this Session but was introduced as a consequence of certain incidents in January this year which the Government considered to be repugnant. The Bill has been drafted in order to deal specifically with problems which could arise following allegations that kidneys from paid donors from another country had been transplanted at a London hospital, and to combat the threat of a foreign national setting up an agency in the United Kingdom to recruit live donors for payment.
It is the Government's view that trading in human organs or any other human material is abhorrent in a civilised society and is to be condemned. I am pleased to inform the House that this view is shared by many of those in another place who have taken no side in supporting the principles underlying the Bill which, in my view, transcend party lines. The main purpose of this Bill, therefore, is to prohibit commercial dealings from taking place in Great Britain involving human organs intended for transplant.
The Bill deals with a particular problem which demands urgent action and it is the Government's hope that Parliament will enact the Bill at the earliest possible opportunity. It is also our intention upon enactment that the accompanying regulations will 843 be ready for presentation to Parliament as soon as possible thereafter.
The Human Organ Transplants Bill is short—containing just seven clauses—but its brevity belies its importance. The Bill is intended to make a clear, unambiguous distinction between what is and what is not acceptable concerning a particular aspect of health care provision; to protect the vulnerable from becoming subjects of economic, social or emotional pressures; to demonstrate the Government's determination to deal quickly and effectively with a particularly abhorrent practice; and to safeguard the present voluntary organ donor system.
The main features of the Bill lie in its first three clauses. Clause 1 would make it a criminal offence for anyone in Great Britain to participate in dealings involving payment for the supply of human organs intended for transplanting. That applies whether the organ is obtained from a dead or living person, even if the removal of the organ, or its transplantation, were to take place in a foreign country. It would also be a criminal offence under this clause to publish or distribute in Great Britain advertisements relating to commercial trade in human organs. This would include for example advertising by telephone, unsolicited mail, or cable TV.
The Bill is quite clear about payment in regard to supplying or procuring organs, and defines payment as "payment in money or money's worth". However, the Bill would not prevent the reimbursement of legitimate and reasonable expenses incurred in removing, transplanting or preserving the organ to be supplied for a voluntary donation falling with the law. It would also be unreasonable to expect a live donor to incur loss of earnings, or to meet the cost of medical care and other expenses, which were directly attributable to his supplying an organ from his own body and the Bill would allow these expenses to be paid or met.
The maximum penalties specified in the Bill are consistent with penalties prescribed in other legislation for comparable offences; for example, those provided under the Surrogacy Arrangements Act 1985. It may be argued that these penalties are not in themselves a sufficient deterrent. I maintain, however, that in the case of the professions, particularly doctors, the risk to their careers if found guilty of an offence could be devastating.
Clause 2 would prohibit transplants taking place between persons who are not genetically related. This clause is, however, subject to certain exemptions. We have in mind here, for example, the possibility of donations between spouses and between parents and their adopted children. Clause 2 would enable the Secretary of State to make regulations which would provide exemptions to the prohibition in cases where an authority, which would be specified in regulations, is satisfied that conditions, again set out in the regulations, had been complied with before such transplants are carried out. The regulations will provide that in every case the authority must be satisfied that no payment prohibited by the Bill has been made. The Bill provides for these regulations to be subject to affirmative order procedure.
844 The Bill has been drafted to permit organ transplants between close relatives which at present form the great majority of transplants in this country. The existence of a close genetic relationship—as opposed to other forms of relationship—can be supported by laboratory testing. Also, the motives of a donor who is a relative are likely to be altruistic. Genetic relationship are to be determined through tests to be specified in regulations rather than included in the body of the Bill. This is a sensible measure because regulations are more flexible and will enable specific changes to be made in the light of any future developments in the technology of the tests.
Preparation of the regulations under the Bill will be undertaken following consultation with the medical professions and other bodies. Conditions would be specified in regulations, which the authority will have to satisfy itself have been complied with, concerning proposed transplants from live donors into non-related recipients. The work will include reviewing existing guidance and codes of practice prepared by bodies such as the British Transplantation Society (whose guidelines are followed by most surgeons carrying out live donor transplants) the BMA and the International Transplantation Society.
These conditions may also need to be reviewed at intervals so that account may be taken of developing technology and changes in operating the conditions. Once established, the tasks of considering the need for amending the regulations would fall to the authority. We envisage that the authority, which we propose to call the Unrelated Live Transplant Regulatory Authority (ULTRA), would be an independent body which would consider information provided by clinicians where transplantation between non-related live donors and recipients is proposed.
Clause 3 enables the Secretary of State to make regulations requiring a specified person to supply information about live and cadaveric transplants to an authority specified in regulations and for the same authority to maintain records of such transplants. The authority specified in the regulations related to this clause is expected to be the health authority. It has still to be decided whether this task should be for the regional or district health authority. These activities will be quite distinct from those carried out by ULTRA. Failure to comply with the regulations or knowingly to supply false or misleading information would attract monetary penalties.
These statutory measures were included in the Bill following representation by leading members of the medical profession that a complete record of all organs donated to the NHS should be mandatory.
Clause 4 provides for circumstances in which, if a corporate body is found guilty of an offence under the Bill, individual officers may also be guilty. The effect of this clause is that directors, managers and senior officers of a hospital, for example, must ensure that its staff are aware of the prohibitions under the Bill and take steps to see that the facilities of the hospital are not used for purposes contrary to the Bill.
845 Clause 5 provides that proceedings for an offence under Clauses 1 or 2 of the Bill may not be instituted in England or Wales except by or with the consent of the Director of Public Prosecutions. This is aimed at preventing frivolous private prosecutions.
Clause 6 will enable the provisions of the Bill to be extended to Northern Ireland by an Order in Council subject to negative procedures.
Clause 7 includes the definition of an organ, for the purposes of the Bill, as,any part of a human body consisting of a structured arrangement of tissues which, if wholly removed, cannot be replicated by the body.This definition is limited to reflect the specific purpose of the Bill. The limitation should not be taken to imply that the Government condone commercial dealing in any other human material.
Finally, I should like to say a few brief words about voluntary organ donation. It is the department's aim to increase the number of organ donor card holders and thus the number of organs so that the need for long term dialysis regimens, for example, will become less and less and eventually dialysis machines will be used to stabilise most patients for only a short time before proceeding to transplant.
The department is active in seeking ways to increase public awareness of the voluntary donor card system and, in particular, to encourage those with a card to discuss their wishes with relatives and encourage people generally to talk about donation and the idea of helping others after death. It takes time, however, before the benefits of these initiatives begin to bear fruit. But allowing trade in human organs to develop, as a means of reducing waiting lists, is an expedient which the Government could never support. I beg to move.
§ Moved, That the Bill be now read a second time. —(Lord Henley.)
§ 7.14 p.m.
§ Lord Ennals
My Lords, first, I thank the noble Lord for his clear explanation of the Bill. Secondly, I make it clear that on these Benches we support the measures and do not intend to table any amendments. That is to ensure a rapid completion of the parliamentary stages of the Bill in order that it may become law at the earliest possible moment.
When the Bill came through another place there were no objections from Members of Parliament of Labour persuasion. In fact, the only objection came from the Conservative Benches. Without doubt, the case for this Bill has been clearly made both in another place and in the speech which we have just heard from the noble Lord.
I believe that from all points of view there is something deeply objectionable about selling one's organs for profit. Of course, I take a totally different view in terms of donating organs to assist a relative or anyone else in need. Also, the idea of selling blood is something which I find as objectionable as selling organs. In the United Kingdom the system of blood donation has always been voluntary. In the United States where the private sector is paramount, there is not the same objection to the selling of blood.
This Bill is largely in line with European practice and opinion. It is in general accord with any relevant 846 legislation, agreements or regulations currently operating within Europe. The United Kingdom is party to the Council of Europe's resolution which commends member states to prohibit the supply of human organs for reward. The UK was also party to the agreement at the Council of Europe's conference of European health ministers in November 1987 that commercialisation of organ procurement, exchange and transplantation activities are to be avoided.
My only criticism of the Government—I gave notice to the Minister that I would be mentioning this—is that they have been so slow to take action in spite of calls from the Labour Benches in another place. The Labour health spokesman in another place, Mrs. Harriet Harman, has done a great deal of research into this situation and has drawn attention to the scandal which came to light, not a few months ago, but in 1985.
The 1985 scandal caused public shock and horror. I should like to paraphrase what my honourable friend said about it on Second Reading. A Pakistani man was flown into London from Lahore and was paid £2,000 for his kidney. It was transplanted to a private patient in the private Devonshire Hospital. At the beginning of this year reports emerged of private patients receiving kidneys from Turks who had been brought to this country to be operated on having agreed to sell a kidney. The National Kidney Centre, a private agency under the medical directorship of Dr. Raymond Crockett, provided a Turkish gentleman with a letter to smooth his way through immigration saying that he was visiting a relative in London who was undergoing a kidney operation. In fact, he was coming to sell his kidney so that it could be transplanted at the Humana Wellington Hospital into an Israeli doctor.
An advertisement then appeared in an Egyptian newspaper offering £10,000 to live kidney donors. The advertisement included Dr. Crockett's name and telephone number. Reports then appeared saying that a kidney taken from a British NHS donor had gone not to one of the thousands of British patients on the waiting list for a life-saving transplant but to a Greek patient who had gone to the Humana Wellington Hospital for a transplant.
In view of the fact that kidneys for sale were back in the news following the scandal of 1985, the Government were under pressure to commission reports. The Bloomsbury District Health Authority was asked to investigate the Humana Wellington Hospital. The Department of Health's letter said that Turkish peasants were duped into donating kidneys. The Barnet District Health Authority was to investigate the National Kidney Centre and the Camberwell District Health Authority was to look into the misuse of a kidney destined for someone on the National Health Service waiting List. However, the Government refused to disclose even in general terms the finding of those investigations.
It will not have escaped notice that all these secret goings on were not, I am proud to say, in National Health Service hospitals but in private hospitals. That is not good enough. It is a reflection on the standards observed. I shall not go into the details of the reports which I have briefly touched upon. They have never been published. The contents never appeared until they came into the hands of my 847 honourable friend in another place. It is very unsatisfactory that reports properly commissioned by health authorities on issues which eventually lead to legislation should still be kept secret.
I should like to ask the Minister several questions of which I have given him notice. First, why were these three reports not published? Secondly, why did the Government wait until 1989 to introduce legislation and why were they not worried about this situation, which they knew about some years ago? Thirdly, were there other recommendations in these reports on which action could have been taken and had any of those recommendations already been implemented? Fourthly, will the department now publish these reports as, in my view, they already ought to have been published?
The actions of the two consultants, Mr. Bewick and Mr. Crockett, and the private hospitals involved are now under investigation by the GMC. Can the Minister inform the House of the state of those investigations? Have any charges been brought? Are the investigations continuing? Will a public statement be made about the investigations?
I have one more question. Does the Minister believe that these scandalous cash-for-organs events could have taken place in the National Health Service as opposed to the private sector? Is there not a natural link between a market in health care and a market in human organs? The purpose of the Bill is to see that in future there is no market for human organs, but I should like to have the Minister's view on whether this scandalous situation could have occurred in the National Health Service.
Certainly, like the noble Lord, I warmly support the kidney transplantation programme and I applaud the work over the years of the National Federation of Kidney Patients Associations. Only yesterday, by the invitation of the noble Lord, Lord Crickhowell, I met many of those who are under treatment. The problems they face are enormous. Those of us who know people who are being subject to dialysis are aware of the misery through which they must go for long periods of time. The facility of transplanting kidneys has given a new lease of life to thousands of people. In so far as we know the suffering of those under dialysis, we also know the joy of those who have benefited from a transplant and who now lead a marvellously open life.
I remember giving a party some years ago—I think when I was Secretary of State—for a number of young women who brought their babies with them to indicate their state of health. It was a situation which could never have occurred without the benefit of transplants. It is a marvellous development. There is also a marvellous development in drug therapy which I believe, eventually, will lead to a much better situation. At present, about 1,500 transplants a year are carried out—which I believe is marginally more than was the case 10 years ago—but about 3,500 people are now waiting for a kidney transplant and there is a serious shortage of donor organs. Dialysis is both costly and unpleasant for patients. It costs the NHS about £15,000 a year. The NHS spends about £60 million a year treating kidney patients.
Like the noble Lords, I warmly support the donor card system. Of course, it requires positive 848 affirmation. I understand that about 14 million cards were distributed in 1988. At Second Reading in another place, on 8th June, the Parliamentary Under-Secretary, Mr. Freeman, hinted at the possibility of legislation in the field of voluntary kidney donation. For myself, I would support legislation which changed the present practice of kidney donation to an opt-out procedure, rather than a opt-in procedure. Therefore, when people die in road accidents, unless they have clearly indicated that they do not wish their organs to be used for the life-saving benefit of other patients, it will be assumed that they are willing to donate their kidneys. That would overnight transform the situation and not for long would there be a waiting list.
I would support such legislation, and we know from opinion polls that many people have indicated support for such a procedure. I would rather be welcoming that legislation than this Bill, necessary though it is. It would produce a massive easing of the plight of those suffering from kidney failure. There would also be a saving of NHS resources and that is an objective in which we are all interested.
There is another legislative approach that would increase the availability of organs for donation, without going as far as I have just suggested. This comes from a memorandum prepared by the British Medical Association on revised ethical guidelines on the transplant of tissues and organs. I refer to two paragraphs. I quote:There have been suggestions that the UK should institute a system of 'required request', that is, that doctors should be required by law to ask for the consent of relatives of all suitable potential donors for permission to remove organs. This would not allow the doctor to observe any sensitivity relating to his knowledge of the patient's specific objections, or religious beliefs. We believe that this will cause additional pain and distress to a number of the recently bereaved and should be avoided".That is one route to be avoided.The Association accepts that organs are not obtained from the maximum number of potential donors.I think we all accept that.This is almost certainly due to the difficulty which some doctors experience in discussing the issue of organ donation with relatives.That is a subject on which the noble Lord, Lord Winstanley, may touch.
The BMA continues:We believe that doctors have an ethical obligation to seek such permission where there is a potential donor and where they know of no reason to suppose that their approach will cause further pain and distress to the relatives. Where the doctor has not the personal knowledge and skill to approach the relatives in person, he/she must ensure that the approach is made by a doctor with those skills.I have quoted those two paragraphs partly to indicate that there are problems, and partly to indicate that I believe we should not just carry out a closing of the door operation. We have a responsibility, in closing one door, to open another. The department should be considering a range of proposals, including the kind of Bill that I said I would support. I hope the department will look at all proposals, because if we can do something positive then, as I said earlier, we might bring about a massive easing of the plight of those who suffer from kidney failure. That is a responsibility that we should accept in this House. However, I willingly support this Bill, as late and as inadequate as it is.
§ 7.27 p.m.
My Lords, I join the noble Lord, Lord Ennals, in thanking the noble Lord, Lord Henley, for introducing this Bill and explaining its provisions with such brevity and clarity. The noble Lord, Lord Ennals, may indeed be right in suggesting that there was some regrettable delay before the Government finally decided to take action on the deplorable and scandalous events which came to light and which were described by the noble Lord.
However, this admirable little Bill, the way it has proceeded through Parliament hitherto and the way in which I believe it will continue to proceed on its way to the statute book henceforth, provides an example of the fact that, when necessity so dictates, our political machinery in this country is perfectly capable of acting effectively and extremely rapidly. One sometimes wishes that certain other complicated matters could be finalised with the same rapidity.
On the general matter of transplants and human organs for transplantation purposes, I genuinely believe that the shortage of human organs for transplant purposes is a tragic and unnecessary human problem. It necessarily follows that I would do anything possible to encourage, and make more available, organs for transplantation purposes. The noble Lord, Lord Ennals, rightly said that one need only speak to a patient who has been on regular dialysis because of renal failure, to realise all that that involves for the patient, the patient's family, the hospital staff, the vast expense that it involves, and in particular the extremely unpleasant life in being tied to a machine day in, day out, for month after month.
Yesterday many of us had the remarkable experience of talking to some of these patients, as the noble Lord, Lord Ennals, has said, after the patients had been relieved of a burden by a successful renal transplant. It is enormously encouraging to see a human being full restored to health, vigour and happiness and to recognise that a burden has been lifted from human shoulders in that remarkable way. One regrets very deeply that human organs are not more readily available.
It necessarily follows that I shall support proposals that will possibly lead to them becoming more readily available. However, I am not sure that this is the appropriate time at which to ventilate that subject. I have no wish to raise any controversial matters that could in any way imperil the passage of this Bill, which I believe should reach the statute book as quickly as possible. I do not wish to encourage people to try to amend or alter the Bill in other ways so that it deals with other functions. So far as I am concerned the Bill as it stands is entirely satisfactory.
I have no doubt that if I tried hard I could find some defects in it and possibly suggest some improvements, but I am not going to try to. I am very glad that, in deciding how to deal with this matter, the Government have agreed to deal quite sensibly and liberally with allowable expenses. I am sure that is necessary and proper. Any person who regularly gives blood to the transfusion service would feel deeply upset and outraged if he or she were 850 suddenly deprived of his or her cup of tea, because it is regarded as a proper reward for having turned up. I am very glad that this legislation has been drawn in such a way that it remains perfectly possible to pay necessary out-of-pocket expensers to people who come forward to give this splendid service to their fellow creatures.
Clause 2 deals with genetically-related donors, and I am glad that it is drawn fairly loosely. We are in a situation at the moment in which medical science is advancing so rapidly that had this cluse been drawn extremely tightly with no provision made for exceptions, we should have found that medical advances had overtaken us. It would then have become necessary to make certain changes.
I do not believe that anyone can look other than with horror at the outrageous events which have led to this Bill coming forward. The idea of human organs being purchased in the way that they were is scandalous and macabre. It is something that should not happen in a civilized country. Whether it happens in a private or public hospital or elsewhere I care not. It should not happen. I hope that this Bill will ensure that it does not happen. In addition, I hope that, while we are speeding this Bill on its way, we shall do what we can in parallel to make sure that human organs become more readily available for transplantation purposes. I believe that the impediments to that provision at the moment are much less real than imaginary. I believe that many of them can be overcome. I hope that this small Bill reaches the statute book very quickly indeed.
§ 7.33 p.m.
§ Lord Trafford
My Lords, I welcome this Bill. I must declare an interest, because this is a field in which I exercise my professional activities. I deprecate and deplore the circumstances that give rise to this Bill. I share the hope of the noble Lord, Lord Winstanley, that the Bill will help to prevent similar recurrences in the future. I believe it is extremely unlikely that such things could happen in the National Health Service, which is one of the questions that the noble Lord, Lord Ennals, asked. I shall not press my noble friend the Minister today on the subject of the reports, because disciplinary proceedings or inquiries are taking place and it would therefore be improper to inquire further into the nature of reports which, if made public, might prejudice those proceedings. It will be a totally different matter if the proceedings are completed shortly, as they probably will be, then to request their publication.
§ Lord Ennals
My Lords, I am grateful to the noble Lord for giving way. I am sure that he will accept that I would not expect the Minister to give any information that could in any way be in breach of the inquiries now being conducted. I simply wish to know the state of the art at the moment. I shall not be pressing the Minister to go beyond what he has already said.
§ Lord Trafford
My Lords, I am very glad to hear that because I agree with the noble Lord on that point. I join the noble Lord, Lord Winstanley, in welcoming the Bill unreservedly. I wish, like him, that I could say that on many other occasions as 851 regards many other Bills that come before us. It would make life easier all round. But many of them are more complicated.
I do not believe that the brevity of this Bill should allow us to underrate the difficulty of obtaining professional agreement in all fields in producing such a Bill. It is not easy. I know the noble Lord made a point about the time factor. To get everything right on this kind of occasion is terribly important. Working in this field I know that a great deal of discussion has gone into getting the wording and agreement on the basic principles right in order to stop a repetition of recent events and to look to the future as regards the management of transplantation.
I welcome this Bill unreservedly. I wish to raise a couple of points. As regards Clause 2, I believe that the question of genetically-related persons is a very interesting one. It raises as many moral as medical questions. In many respects a doctor is no better qualified to come to conclusions than any other person. These questions concern relationships between people; the rectitude of live donor transplant patients; whether people should or should not be donors and how one operates the mechanism of achieving a live donor transplantation.
I believe that the noble Lord, Lord Winstanley, was a little more cautious than the noble Lord, Lord Ennals, in making his comments about live donors. Perhaps as a doctor he is aware that, for all kinds of reasons, it is not always easy to effect a live donor transplantation arrangement. Not the least of those reasons is the fact that one has to leave an escape clause for a donor who changes his or her mind. That can and sometimes does happen. At the same time one does not wish to destroy the relationship which may previously have existed.
There are a number of social, moral and medical considerations that make matters difficult. I believe that my noble friend Lord Henley dealt with the three questions that I wanted answered. I assume that at the present moment the genetically related will be tested by HLA testing or something similar as well as by blood group. I assume that the Clause is phrased in such a way that future technological changes will allow any other form of genetic matching (whether it is fingerprinting or anything else) to establish the relationship.
I was very glad to see that the clause allows exemptions. There are two particular circumstances not mentioned in the Bill but mentioned by my noble friend. The first is spouses and the second the extended family. The latter is a term that is open to various interpretations. In the changing society that we have, particularly in some of our bigger cities, we shall have to give consideration to this kind of situation in relation to transplants and the acceptability of live donor transplantation.
I welcome Clause 3 and the registration of all NHS activities in this field being made mandatory. On previous occasions I have expressed my total support for the National Health Service. Having worked in this area for so many years I should be horrified if there were any irregularities of the kind that have given rise to this type of legislation.
852 I welcome very much what my noble friend said concerning the programmes and plans that he may have to promote organ donation. Again probably because he is a doctor the noble Lord, Lord Winstanley, was slightly more cautious than the noble Lord, Lord Ennals. This is not a simple matter. Personally, I am not in any way totally sold on this opt-in type of legislation. I can see many difficulties and hazards. The noble Lord read from the BMA handout an example of the anxiety and distress that may be caused by so-called "required requests". Equally, there are problems with opting in and opting out. However great one's sympathy may be for people in renal failure who need transplants, one must also consider a whole range of other people —their rights, the rights of their families, and so on. There are considerable difficulties.
Perhaps I may say to the noble Lord, Lord Ennals, that there are also problems when one is faced with a patient in an intensive care unit who is a potential donor, or a patient who a doctor may have reason to believe would wish to be a donor but whose relatives cannot be contacted. The patient may have appeared out of the blue. It is a terrible dilemma. Those are the problems that arise on the ground, and, just like the live donor example which I gave just now, those are difficulties which occasionally occur.
I should add for those who are interested that required request—if that is not a contradiction in terms—has been operated with some success on a voluntary basis in various areas. We know from experience in other countries that required request produces an increase in donor kidneys. In certain states in the United States where required request has been introduced the number of donor kidneys increased, although the number may have increased for other reasons. In my view we should look carefully at required request because it is a very much better line to pursue than any of the opt-in proposals. However, we would have to consider exemptions on religious grounds, and so on.
Like everybody else, I should like to see more donors, more transplants and more relief given to the renal services system. One of the largest blocks in this field is the shortage of donors. I therefore support guardedly—perhaps I may be somewhat arrogant and say "with some experience"—statutory intervention in this area. Nonetheless, I would encourage my noble friend to pursue his known interest and support for these programmes.
To return to the Bill, I support it unreservedly and congratulate my noble friend on the clarity with which he introduced it.
§ 7.43 p.m.
§ Lord Hatch of Lusby
My Lords, when I expressed an intention to speak on this Bill I thought that I might have to provide some Byzantine way of introducing the single point that I wanted to make. However, the noble Lord, Lord Henley, spared me that in the latter part of his speech. He repeated and paraphrased what his honourable friend the Under-Secretary of State Mr. Freeman, said in Standing Committee A in another place. It is worthwhile quoting what Mr. Freeman said in 853 connection with the point that I want to make. He said (at cols. 16–17 of the Official Report of Standing Committee A on 8th June 1989):When the Committee and the House make progress and the legislation is enacted, I shall turn the attention of the Department of Health to a conference in the autumn on the voluntary donation of cadaveric organs to improve supply".He went on to say:I should like to chair a conference later this year in which all parties involved in voluntary donation of organs can discuss what steps need to be taken to improve supply".All noble Lords who have spoken in this debate have agreed that an increase in the number of donors is needed. My noble friend Lord Ennals quoted figures which were also given by Mr. Freeman. Between 3,000 and 3,500 people are on the waiting list for kidneys even though there are 1,500 transplant operations a year. Mr. Freeman continued:Further improvements in the quality and quantity of voluntary donations are my top priority. I shall take all possible administrative steps and, if necessary, make representations to my right hon. and learned Friend the Secretary of State on the practical and statutory steps that may have to be taken".I welcome the Bill and hope to speed it on its way. Nevertheless, an important issue seems to have been covered up. Every speaker referred to the need for more donors and more donations. What is in the way? What is the obstacle? I gave the Minister an idea of what I would say on the Bill, and I raised it with his predecessor, the noble Lord, Lord Skelmersdale, some 18 months to two years ago. Is it not the case that of the donations made only a small proportion come from those who wish to give them? Is it not the case that donations from those holding donor cards is not very high when compared with the number of people holding donor cards? What is the obstacle?
We are all agreed that we need an increase in the supply of donations. We are also agreed that we need an increase in the number of donors. This could be achieved and I believe that the Government want it to be achieved, They have certain measures in mind which I do not think are adequate for increasing that supply.
When one becomes a donor one does not automatically know that one's card will be honoured. The card simply requests that a person's organs be donated. I discovered from the noble Lord, Lord Skelmersdale, that, although the card is a legal document, the practice of the medical profession is to consult relatives. I strongly object to that on two grounds. I object, first, because this reduces the number of donations from those who have expressed their wishes about what should happen to their bodies. Secondly, I object to the whole concept that anyone other than the donor has a right to determine what should happen to his body after death. If we want more donations it should be law that, irrespective of what anybody else thinks, an individual has the right to make those donations. If one believes, as I do as a matter of principle, that one's body belongs to oneself and that what happens to it after death is solely one's responsibility, this reference to relatives should be removed.
I hope that it will be removed either by the Government or by a Private Member's Bill. As the 854 Minister will know, there has been much discussion about this in the United States. My noble friend Lord Ennals put forward a suggestion for an increase in the number of donors and in donations; that is, the opting-out system instead of the opting-in. I support him totally on that suggestion.
However, in my view, one needs to do more. I say that because, if the practice continues that the donation of organs cannot be confirmed without some reference to the relatives, then you are really doing two things. First —and I am sure that all doctors here present would support me on this—in the case of many donations time is of the essence. Unless those donations are made immediately, or very shortly after death, they are of no use. That is especially true as regards certain organs. The reference to relatives delays the availability of that donation.
It is also well-known that we carry donor cards in our wallets. But, in the case of accidents, how many people are examined to see whether they have a donor card? I suggest, in addition to the suggestion of my noble friend as regards the opting-out system, that the Government look seriously at the matter and that they consult with the relevant organisations involved to see whether there is a better way than simply holding a donor card, which would indicate quickly, immediately, that the person killed in an accident had expressed the desire that his or her organs be donated.
For instance, I suggest that one could consider a small tattoo mark on the wrist. That would be permanent and a visible indication in the case of an accident. However, that is only one suggestion and, of course, there may be many others. But, the central issue, to which I should like the noble Lord to address himself when he comes to wind-up the debate, is whether the Government stand by the right of the individual to donate his or her organs, irrespective of the wishes of anyone else; or, whether they will continue with what I understand is the general medical practice of allowing relatives to put a veto on the donation which has already been determined by the individual concerned.
My Lords, I am most grateful to the noble Lord for allowing me to intervene briefly. I think that he should be aware of the real situation rather than an unreal one. He referred to the right of the individual to determine what happens to his organs. The individual has no such right.
The noble Lord, Lord Hatch said that his body belonged to him. It does at the moment, but as soon as he dies it does not. The instructions which he leaves regarding the disposal of his body have no validity whatever under the present law. The decision is taken by his next of kin. One would, of course, expect them to take note of any wish which had been expressed. However, in order for the kind of thing to happen which the noble Lord requests —and I have no doubt it would be immensely helpful—there would have to be fundamental changes in the current law. I merely wished to emphasise the fact that, at present, the law is not as the noble Lord would wish it to be.
§ Lord Hatch of Lusby
My Lords, I am grateful to the noble Lord, Lord Winstanley, for what he said. If he is right—and I do not know whether he is—then he is simply reinforcing my case for new legislation. But, as I understood the answer I received from the noble Lord, Lord Skelmersdale—although the conversation took place some time ago now—it suggested that in law the individual had the right to donate organs and that relatives did not have the right to intervene; but that that was, however, the general practice. I hope that the noble Lord can clear up the matter when he comes to reply.
§ Lord Trafford
My Lords, one of the noble Lord's problems, as regards why donors do not end up donating their kidneys, is this. If the noble Lord wishes to donate, he must die in the right place, at the right time, in the right conditions, of the right diseases, in the right hands and in suitable circumstances. That is the difficulty with regard to the wishes of the donor and donor cards. Forty million cards are carried. One million people may die, but only a few end up donating their kidneys. It is the sheer complication of the situation. It has nothing to do with the relatives' permission, or otherwise. On that latter point, he may think he stands alone. But my view of a man is that he stands in relationship to his family and he should not forget that fact, even in death.
§ Lord Hatch of Lusby
My Lords, I accept what the noble Lord said. However, I am not just talking about the donation of kidneys. In fact, I went into the matter legally and discovered that the only way in which one can donate one's body for medical research is to put that request in one's will. Again, this is a legal matter and I wish to give the Minister the chance to wind up the debate. Nevertheless, I hope that he will be able to answer some of those questions.
§ 7.55 p.m.
§ Lord Henley
My Lords, I thank the noble Lord for what he said. It is indeed gracious of him to give me time to wind up the debate. We had a most interesting Second Reading debate. I welcome the support we have received from all sides of the House for what I call, and what others have called, a small but useful measure. I should probably make the best use of my time—although I think we are likely to continue beyond eight o'clock—if I tried to answer as many as possible of the questions which have been put to me by noble Lords in the course of the debate. Perhaps I may say, in passing, that I am most grateful to the noble Lord, Lord Ennals. I must thank him for giving me notice of various questions he wished to raise.
The noble Lord asked first why we have not published the reports from Bloomsbury, Barnet and Camberwell health authorities. Those reports were passed to us in strict confidence. The matters they deal with are the responsibility of the health authorities. Moreover, we are satisfied that inquiries have been properly conducted.
The noble Lord then asked why there had been this delay between 1985 and 1989 before we introduced legislation. The 1985 allegations concerned people 856 who, as the noble Lord said, came from the Indian sub-continent, bringing live donors with them who were allegedly paid for their organs. It was decided that legislation was not an appropriate course of action as any payment would almost certainly have been made outside the United Kingdom. It would therefore have been impossible to obtain proof of any financial transaction. Alternative action, which was warning the private hospitals by letter that they could lose their registration if they were found to have been involved in such practices, was therefore taken.
The current allegations, which emerged earlier this year, were different as the alleged donors and recipients were not from the same countries and appeared to have been brought together here. It therefore seems probable that at least some financial transactions would have taken place in this country. There is also the concern about the threat by a German national to set up an agency to buy and sell organs in this country. Legislation in that case therefore seemed to be an effective way of dealing with such matters. The Bill was introduced to stamp out such practices.
The noble Lord then asked whether there were other recommendations contained in the reports upon which action could be taken. As I said, the reports are confidential and we cannot reveal their contents. He also asked whether we would now publish the reports. Again, that is a matter for the health authorities because the reports belong to them.
The noble Lord also asked about the state of investigations into the case of Dr. Crockett and Mr. Bewick. As my noble friend Lord Trafford has already pointed out, it is known that inquiries are under way. However, they are a matter for the General Medical Council and the timetable is in its hands.
Finally, the noble Lord asked whether we believed that cash-for-organs events could have taken place in the National Health Service. It is obviously impossible to be certain that no one has benefited financially from donating an organ within the National Health Service. However, we think that is most unlikely, as indeed did my noble friend Lord Trafford.
It must be remembered that the vast majority of transplants are from dead donors. In the National Health Service, all such organs are obtained via the United Kingdom Transplantation Service. The great majority of live organ transplants carried out in the National Health Service are between genetically-related people whose relationship will generally have been established in the course of verifying their compatibility for the purpose of transplantation. The patient and his family will be known to hospital staff. We believe it unlikely that a relative would be involved in a commercial transaction for the organ.
The noble Lords, Lord Ennals and Lord Hatch, made various suggestions how to increase the supply of organs. The noble Lord, Lord Ennals, dealt with what I think we can call opting out. Our position remains that the gift of an organ is an altruistic gift. It is a positive statement of intent. Without a positive 857 statement of intent to donate by patients, an assumption that they are willing for their organs to be removed, because there is no record of them opting out, would be wrong and would add unreasonably and unnecessarily to the distress of their relatives.
The noble Lord also mentioned required requests which were discussed in another place. The Hoffenberg working party advised us that there was a better approach than required-request legislation. We have put the measures that it suggests into action. We intend to give them time to work before we consider other proposals. Several American states have enacted required-request legislation in recent years; there is no clear evidence that such legislation has a sustained impact on donation which cannot be achieved by alternative means.
The noble Lord, Lord Hatch, went on to the question of the enforceability of donor cards. The problem is that doctors would not insist that organs should be removed from a donor if the relatives objected. Relatives' views should be respected even though, in law, the donor's wishes, as he has made them known by signing a donor card, could be enforced. A further problem arises in that adverse publicity could result from any such enforcement against the relatives' wishes.
§ Lord Ennals
My Lords, I should have thought that the noble Lord was right, but there seemed to be evidence from his noble friends and my noble friends that once the body is dead the donor's views are no longer relevant. It would be helpful to have a clarification of the law.
§ Lord Henley
My Lords, my advice is that the donor's wishes could be enforced. My understanding always was that on the death of the individual, his wishes had no further effect. Whatever the position, doctors would rather not start removing organs against the wishes of the donor's relatives, because of the danger of adverse publicity which might in the long term do much greater harm to the whole principle of voluntary organ donation.
I am sure that the noble Lord, Lord Hatch, could find a way round his problem by putting clauses into his will, suggesting to his relations that they might benefit only if they perform certain actions.
§ Lord Henley
My Lords, I leave that to him and the advice that he obtains from his solicitors. My noble friend Lord Trafford asked about tests to establish relationship. We are consulting the medical profession about details of the tests that will be used. Those details will be set out in the regulations. We expect them to be a combination of blood tests and DNA tests. As I said in my opening remarks, due to technological changes we feel that they are best put into regulations and not enacted.
I should say a few words about donor cards which were mentioned by several noble Lords. They are obviously important in terms of increased supply, which every noble Lord has mentioned. It is the 858 department's aim so to increase the number of organ donor cards—thus the number of organs—that the need for long-term dialysis, for example, will decrease and that eventually, as I said in my opening remarks, dialysis machines will be used for fairly short periods only.
We are already actively introducing measures to achieve that aim, following the report of the Royal Medical Colleges and the working party under the chairmanship of Sir Raymond Hoffenberg in December 1987. In December 1988, we issued a health circular (HC88/63) asking health authorities to report by the end of June 1989 confirming that their procedures for identifying potential organ donors have been drawn up. The circular also requests that authorities record all deaths in intensive care and submit completed forms for analysis centrally of the potential availability of organs, as well as giving reasons why suitable organs were not used for transplants.
The first results of that two-year audit period will not become known before the end or the year. We have also increased the department's publicity expenditure to £200,000 to increase public awareness of organ donation. In 1988, some 14 million donor cards were distributed, which is 9 million more than the previous year and in collaboration with the Healthcare Foundation we began an initiative to make donor cards available to High Street stores.
We shall shortly be releasing a video and new publicity displays for use by transplant co-ordinators who perform valuable education and publicity work. Some new leaflets are already available.
As I said, this is a small but important measure. I welcome the support that it has received from all sides of the House. I commend it to the House.
On Question, Bill read a second time, and committed to a Committee of the Whole House.