Kidney Transplant Bill [HL]

My Lords, I, too, congratulate the noble Baroness, Lady Finlay, on bringing this vital issue to the attention of the House by means of her Bill, which clearly has in mind the interests of those who require donated organs. She was right to highlight the critical shortage of deceased donors in this country. The Government are committed to increasing the number of organs available for transplantation, so that more people can benefit from this life-saving procedure. We recognise that the noble Baroness has brought forward the Bill to ensure that more people have the gift of life. However, the Government have reservations about it. It is unclear how its proposals would deliver real benefits for all those people who are awaiting vital transplant surgery, and it raises significant issues for professionals involved in donation, as well as donors and their families, which would need careful consideration. The Bill’s provisions on consent are premature in view of the debates and the work of the task force. Noble Lords will be aware that the Secretary of State for Health announced earlier this week the report of the Organ Donation Taskforce, and made a commitment to implementing all its recommendations. The noble Baroness, Lady Verma, mentioned Professor Randhawa. He is a member of the task force, so I hope that the noble Baroness is reassured that problems relating specifically to black and Asian communities are being properly addressed. I take this opportunity to pay tribute to organisations such as the Kidney Wales Foundation, which, as well as doing a fine job in other areas, is targeting specifically the black and minority-ethnic community in Wales. The measures to be put in place as a result of the task force’s work will greatly improve donation rates for all organs. The task force estimates that an increase of 50 per cent should be achievable within five years, which would equate to an additional 1,200 transplants each year, of which more than 700 would be kidney transplants. In the shorter term, it is hoped that a major difference in terms of transplants enabled, and therefore lives saved, could be seen in as little as a year to 18 months. In addition, the Prime Minister has indicated that now is the time for a public debate on whether we should move to an opt-out system for consent. This is a sensitive issue, and we will seek views from all those with an interest—the public, transplant professionals, patient groups and religious leaders—so that we can hear a wide range of opinion and concerns. To facilitate this debate, the Secretary of State for Health has asked the task force to consider the potential impact of changing to an opt-out system. I pay tribute to Elisabeth Buggins and all members of the task force, who have done a fantastic job in drawing up workable recommendations for improving organ donation rates. I am delighted to assure noble Lords, including the noble Lord, Lord Sheikh, that we have been able to commit to taking each of the recommendations forward. The task force will now turn its attention and considerable expertise to advising us on the issues involved in an opt-out consent system. It had its first meeting on presumed consent yesterday. Such a system would of course be a fundamental change to current practice, and require significant amendment to the Human Tissue Act 2004, which makes it an offence to remove an organ for transplantation without explicit consent of the donor or someone qualified to consent on his or her behalf. Many complex practical, legal and ethical issues may need to be considered before we can decide whether such a step would work in the UK, which is why it is important for the task force to conduct a thorough investigation before considering any change to the law in this area. Many noble Lords cited the experience in Spain, which has seen a sea change in attitude and practice. My noble friend Lord Rea asked how many organs were taken in Spain without the family’s consent. Like him, my understanding is that the usual practice there is to get consent from the family in all cases, but I shall write to him when we have sought the information that he requests from the authorities in Spain. The Government believe that the Bill before us is premature on two counts. First, the presumption of consent to remove any organ, in this case a single kidney, would be pointless unless the necessary organisational and systemic measures had been put in place to ensure that optimum use could be made of organs available for donation. The implementation of the task force’s recommendations will achieve this, but not overnight, and it is vital that we proceed with that work to reap the benefits as soon as possible. Secondly, it would be unwise to make changes to the system of consent without the benefit of the task force’s findings on the implications for organ donation in the UK of an opt-out system and wide consultation. Many noble Lords have talked about the importance of public opinion and ensuring that the public are with us on such a sensitive issue. It is vital that whatever system is eventually put in place is fully thought-out and capable of commanding the confidence of both professionals and the public. The noble Baroness explained why she confined the scope of her Bill to renal donation, but we are concerned that the Bill would treat kidney donation completely differently from other life-saving or life-enhancing transplants, and place practitioners seeking consent from family members for other organs, including the other kidney, in a potentially difficult situation. People awaiting a heart or liver transplant may well feel unfairly treated and, conversely, families of kidney donors may well wonder why everybody else has a say in what happens to their relative’s body except them. The Bill appears to make no provision for the involvement of family members of adult donors, although the noble Baroness addressed that in her speech, and it is not clear how practitioners would be expected to proceed in the face of objection from the family of potential donors. These are sensitive issues at the very heart of the debate about consent. We must be wary of the potential to damage confidence in the system and cause confusion and mistrust—although I know that that is exactly what the noble Baroness does not want. The Government are determined to see an improvement in the number of organs made available for all types of transplant, and to see that where donors are identified their organs are used to benefit as many people as possible. Finally, the Bill as drafted would not dovetail with the Human Tissue Act 2004 or the Mental Capacity Act 2005 and would create legal anomalies, of which I will give a few examples. The proposed amendment in Clause 8 would simply not work: to remove this activity from the requirements of the 2004 Act would require significant amendments to Section 1 of that Act, which sets out the activities requiring consent, as well as amendments to other sections of the 2004 Act including those relating to offences and penalties. I note the noble Baroness’s comments, but my understanding is that there is not the simple read-across from the provisions of the Mental Capacity Act that the Bill implies. The Mental Capacity Act applies to decision-making for people when they are alive and the Bill would come into play once the person was dead. This is a simple but significant distinction and the Government would need to think long and hard about the wider implications of changing this basic aspect of the Mental Capacity Act. There are some specific issues in relation to the Mental Capacity Act that the noble Baroness may want to consider further. The Act applies to decisions to refuse treatment and not to donation, and does not apply after death. If it is the intention of the Bill to create a new category of advance decision relating to organ donation that applies after death, the Mental Capacity Act would need to be amended or provisions for a new form of advance decision would have to be drawn up. Similarly, the Bill proposes that someone with a lasting power of attorney can refuse donation on behalf of a donor. The role of lasting power of attorney applies only when the person is alive. As with advanced decisions, the Mental Capacity Act and the relevant regulations would need to be amended if it were proposed to allow someone with lasting power of attorney to make health-related decisions that endured beyond a person’s death. We have benefited from much expertise and personal experience in today’s debate. There have been many moving testaments to the real need for action on this issue. I specifically cite my noble friend Lady Golding, whose personal experience with her daughter is a real testament for the need for swift change. The experience of the noble Baroness, Lady Tonge, also provides us with a real lesson about the need to act. There we have a family who were well aware of the benefits of organ donation, but who were not approached. There is much to do. We need action, action, action, and not just words, to misquote the archbishop. The noble Lord, Lord Hughes of Woodside, asked what work was being done to ensure swift legislation. We appreciate the need for urgent action, which is why we have already accepted all the recommendations of the task force. It is too soon to say what form any change to the law might look like. As the Prime Minister made clear, we are at the start of the debate and not at the end. We need to ensure that we have consulted the public properly. I feel rather proud that so many of your Lordships, including my noble friend Lord Chandos, have prominent roles in organisations relating to organ donation; indeed, we have the noble Lord, Lord McColl, with us who actually enables transplants—and we are very grateful to him for all his work. I was particularly interested to learn of his views on the pressures on staff. I believe that the task force’s recommendations would ease those pressures. The noble Lord, Lord Brooke of Sutton Mandeville, reminded us of the fine qualities of Lord Biffen and his experiences on dialysis. Both the noble Lord, Lord Brooke, and my noble friend Lord Elder mentioned the huge importance not only of signing donor cards but of speaking to the next of kin. The Government whole-heartedly endorse that. The noble Lord, Lord Foulkes, referred to the situation in Scotland. I am delighted that both the Scottish Parliament and Westminster are thinking along the same lines on the issue. It is clear that while devolution should of course be respected, our aspiration in this area must be to have a UK-wide approach, and I am sure that that is what we are all working towards. In conclusion, the Bill is clearly drafted with the best of intentions. The noble Baroness is quite right to raise the issue of the shortage of organs for donation, which is something the Government are determined to address, and I have alluded to the recommendations of the Organ Donation Taskforce, which I am confident will result in far more organs becoming available for future transplantation. I have also mentioned that the task force will be considering the complex practical, legal and ethical issues relating to an opt-out system of consent for organ donation, and the need for a public debate on that sensitive issue. We must be sure that whatever system of consent we operate in the UK in the future is right for us, and has the confidence of both professionals and the public. The work of the task force will provide us with the evidence base needed to decide. I am sure that the noble Baroness, Lady Finlay, will wish to reflect on these issues. In the mean time I thank her for bringing forward this Bill and for enabling this extraordinarily timely debate.