Kidney Transplant Bill [HL]

My Lords, I am grateful to the noble Lord. We have borders that are not borders at all. Someone from Scotland may be on a day trip south of the Border and have a fatal road accident. He may be taken in and his identity may be established, in addition to the fact that he is dead and has a good tissue match with someone waiting on the transplant register. However, this House cannot legislate for health matters in the devolved Administration in Scotland. I would hope that if my Bill became law, the Scottish Parliament would follow and introduce its own compatible legislation. Indeed, we have seen compatible legislation on issues such as mental capacity. I hope that that answers the question. I return to the issue of age. In law, a minor aged 16 or 17 can consent to a procedure and their withholding consent can be overridden at this age. The Bill concerns instructions left to the family about what a person wants done with their body parts after death. It concerns gifting after death; in this case, the gifting of organs. The Human Tissue Act applies in this case more than any other legislation, and in that Act 18 is the age of adult consent in England and Wales. Thus, for anyone under 18, a parent would have to consent to use of the organ. The Mental Capacity Act seems not to apply after death; the Bill does not concern consent to remove organs for transplantation from a live donor however much they have lost capacity. However, for the avoidance of doubt regarding a person’s wishes, the Bill allows a person registered as having power of attorney for welfare decisions to be able to override the presumed consent, because that may be the only person with whom the person who lacked capacity and who is now dead has had the relevant conversation, rather than with their relative. As time is of the essence in the viability of organs, the Bill ensures that the relevant transplant authority has access to the list of persons registered with the Court of Protection as having been granted such a power of attorney. The maintenance of a register of those who have opted out could be held on a separate database by UK Transplant or by the NHS body that has been tentatively proposed as overseeing transplantation in the UK. However, the individual should write out any objection to donating and discuss it with their family and GP so that their wishes are clear. There are also specific safeguards in the Bill to address concerns raised by the task force. The doctor certifying death must be independent to avoid any pressures that might affect end-of-life decision making. Clear protocols already exist for establishing brain-stem death, but kidneys can certainly be taken also from donors whose hearts have stopped and who have died more in accordance with what one might call the more old-fashioned, and more standard, way of certifying death. Only an authorised transplant team can remove the kidney for human transplantation to a UK resident who is already on the transplant register, and only after carefully establishing that there is no evidence of an opt-out. The team must discuss that with the family or next of kin. In practice, if a family was too distraught to give medical details of the dead donor then that would effectively mean that the organ was unreliable and could not be used. I have received some helpful suggestions on how my Bill can be improved. The important point is that the transplant team must have taken all reasonable steps to discuss with the next of kin the voluntary donation of other organs, including the other kidney. This would underpin exploring the application of clinical indicators to donation, as proposed in the task force report. I have already drafted wording to amend the Bill in this way, so that the donation of other organs has to be considered and spoken about. The BMA has this week called for, "““a system of presumed consent with safeguards””." My Bill does precisely that and steers a middle path. By normalising giving, the Bill will open the door to ensuring that healthcare professionals have the important conversations with those who may become donors, or with their relatives when death is very sudden. It will help to ensure that people think about their own death and what they want to happen to their organs and that they discuss this with their next of kin well in advance. I hope that the Bill will change the face of transplants. As the task force report recommended, we need to make organ donation usual. My Bill will ensure that we relieve the terrible suffering of those currently waiting for a transplant, knowing that they will probably die during that wait. We are only talking about a kidney—one kidney that can be taken presuming consent, and then the door will be opened for people to give the gift of life to others after their death with other life-saving organs, rather than have them rot in the ground or burnt in a crematorium after a young, fit person has died tragically in an accident or through brain trauma. The Bill is needed. For many patients who are facing death, a new kidney can bring life. The Bill will increase the number of kidneys that are available, which will in turn increase the number of successful transplants performed, because it will be possible to find much closer tissue matches. Furthermore, it is completely compatible with this week’s report from the Organ Donation Taskforce. I commend the Bill to the House. Moved, That the Bill be now read a second time.—(Baroness Finlay of Llandaff.)