Health Bill [HL]

My Lords, we have had an informed and interesting debate, but time is going on, so I shall confine myself to commenting briefly on the Bill and then discussing an amendment I shall table to insert a new clause on transplants and organ donation. Other noble Lords have commented on the NHS Constitution and Part 1 of the Bill. It is a sad reflection of our society that there is still bullying in the health service and that the NHS does not always respect and value the intrinsic worth of each human being. As Cicely Saunders said, ““You matter because you are you””. That should have been the maxim of the NHS Constitution, and it could have been blazoned across the front of the publication. It is important to write down the principles, but we also need to have a debate about what the NHS cannot do when an emergency, whether national or local, arises. Staff need to know that they will be supported when they work outside their normal roles in such a situation. I fear the Bill may be a missed opportunity to realise our research potential by decreasing the regulatory hurdles for researchers in this country. My noble friend Lady Campbell argued eloquently for personalised budgets, especially mixed-health budgets for some aspects of equipment and defined interventions. I can see how useful such a provision might prove. It might remove unnecessary delays, particularly for wheelchairs, some treatments and equipment. In 2003, I introduced a Bill to ban smoking in public places. Although my Bill for Wales did not become law, the Government's legislation of the same nature is now in effect and working well. Those who predicted that such legislation would result in a marked fall in smoking have been proved right. The reported 40 per cent fall in the incidence of heart attacks is probably the combined effect of less smoking, better cholesterol and blood pressure control and targeted health education. However, statistics unfortunately also reveal that approximately 450 under-18s start smoking every day in the UK. The Department of Health consulted on three legislative measures on tobacco ahead of this Bill: prohibiting retail display, banning tobacco sales from vending machines, and plain packaging. The Bill covers only the first of these—prohibiting retail display—and plans only to restrict access to vending machines. Declaring my interest as president of ASH Wales, I must say we would like to go further, but others noble Lords have addressed tobacco control comprehensively. I turn to the urgent problem of transplants. As noble Lords know, I introduced a Private Member's Bill during the previous Session to introduce a soft system of presumed consent for kidney donation. I remain convinced that such a system would be advantageous, but I recognise it would not be a panacea. Presumed consent has been advised against by expert committees inside and outside this House, and I heed that advice. As the report of the EU Committee chaired by my noble friend Lady Howarth stated, we must encourage the gift of life to others after a tragic death and we must improve the infrastructure to encourage organ donation and support transplant procedures. My amendment will insert a new clause in the Bill. It will require the transplant team to take account of advanced wishes as expressed by the donor's relatives when they give consent. In the Mental Capacity Act, we made provision in Section 4(6) in Part 1 for an advance statement of wishes to be considered when a best-interests decision is being taken—an important principle that was championed by the noble Baroness, Lady Barker. My amendment will allow the family to express such a wish on behalf of the deceased. At present, when a donor dies, the family's wishes about the use of donated organs are excluded. With her mother desperately in need of a transplant, Laura Ashworth told family and friends that she wanted to donate one of her kidneys, yet when the 21 year-old tragically died after an asthma attack, the Human Tissue Authority refused to consider her mother as a possible recipient of one of her kidneys and her pancreas, with the other kidney and her liver going to others. Instead, her organs went to three strangers on the waiting list. Of course, it is not known if tissue matching would have shown Laura's mother to be a suitable recipient, but if she had at least been considered, her grieving would not have been compounded by being denied the possibility of even being considered. She now has to rely on her sister becoming a live donor, which will endanger her sister. This is not the case in other countries. Elsewhere, a person already on the transplant waiting list and known to the grieving family can be considered in the tissue-typing process. The Human Tissue Authority seems to insist that an advance statement of wishes must be in writing by the potential donor having recorded a wish to be a live donor prior to death. That seems to run counter to the spirit of the Mental Capacity Act. Let me be clear. My clause will not allow the donation to be conditional, but it will allow consistency with respecting an advance statement of wishes by the deceased by allowing the suitability of a potential recipient to be considered. It will help to ensure that organ donation is truly a gift to those in need, and it will allow the grieving to have comfort from the attempt to help someone among family and friends if a person on the waiting list is personally known. I have consulted on this and have support from transplant professionals, but more of that when we debate the clause. I hope that the Government will see that it may increase donations, particularly in ethnic-minority communities, and would certainly do no harm. I will be calling on the House to support this.