Human Tissue (Scotland) Bill: Stage 3
We move to stage 3 proceedings on the Human Tissue (Scotland) Bill.
I will make the usual announcement about the procedures that are to be followed. We will deal first with amendments to the bill, then we will debate the motion to pass the bill. For the amendments, members should have with them the bill as amended at stage 2—SP bill 42A—the marshalled list, which contains amendments that I have selected that were lodged by the deadline and the groupings that I have agreed.
The division bell will sound and proceedings will be suspended for five minutes before the first division this morning. The period of voting for the first division will be 30 seconds. Thereafter, I will allow one minute for the first division after a debate and all other divisions will last 30 seconds. As members are aware, the use of the division bell in stage 3 proceedings was agreed by the Parliamentary Bureau as part of the protocol on use of the division bell.
Section 3—Use of part of body of deceased person for transplantation, research etc
Group 1 is on presumed consent of adults for transplantation. Amendment 11, in the name of John Farquhar Munro, is grouped with a number of amendments that are shown on the groupings list, which also shows the amendments that are subject to pre-emption. If members consult the list, that will save me from having to read them all out.
I hope that the debate will be useful and effective.
In the United Kingdom, on average one person who is waiting for an organ transplant dies every day. Between April 2004 and March 2005, 52 Scots who were awaiting transplants died. Many others did not even make it on to the list before they died. The many people who have family members or close relatives who are waiting for transplants know the trauma that that causes. In the past 10 years, although the number of people who are waiting for organs has increased, the number of organs that are available for donation has fallen. The resultant gap must be addressed.
The main reason why I have lodged amendments that promote presumed consent is that although I welcome the Scottish Executive's efforts to bridge the gap between organ donation and demand, its proposals alone will not increase the rate of organ donation, which presumed consent would do.
Figures show, and statistics demonstrate, that opt-out systems increase donation levels. Spain has the highest organ donation rate of any country: its opt-out system has led to a rate of 33 cadaveric organ donations per million population. The question is this: does Scotland aspire to reach that level or Denmark's level, which is less than half that number of donations per million population and which operates an opt-in system that is similar to that which the Scottish Executive proposes?
Repeated surveys indicate that 90 per cent of people in this country support organ donation, but only 21 per cent of people carry organ donation cards, which is surprising. Ninety per cent support the concept, but only 21 per cent carry cards to confirm their wishes. That indicates to me that, although the Scottish Executive's proposals will codify existing laws and perhaps make the work of transplant units easier, the core pool of people who wish to donate will remain limited to the 21 per cent of people who carry donor cards.
Unsurprisingly, when individual wishes are unknown and recently bereaved relatives are asked to decide whether to allow organ donation, many opt for the default position, which is not to donate. As a result, about 40 per cent of relatives refuse to give their consent. However, if they are asked the question again after a month, they say that they regret their decision.
Whatever the result of the votes on my amendments in the group, it is important that the Executive encourage people to discuss organ donation with their families. The adoption of a system of presumed consent would address that by making it easier for people to achieve their wish to donate, given the exceptionally high level of support for donation, and is therefore entirely in line with the principles of the bill. Also, the adoption of a system of presumed consent will increase the number of donations by the simple means of increasing the number of donors in the donor pool. Figures undoubtedly show a positive correlation between presumed consent and higher rates of organ donation. However, the stark fact remains that, even if we take the glowing example of Spain, only 33 bodies per million population there are suitable for donation.
At the very least, whatever the method of organ donation Scotland will have at the end of today, the Executive must at least aspire to a level of donation that is the same as, or greater than, that of Spain.
I move amendment 11.
John Farquhar Munro ably explained his reasons for lodging the amendments in the group and why it is vital that members support them. I, for one, support them.
The debate on amendment 11 and John Farquhar Munro's other amendments in the group is not about a small change to the law, a technical issue or an administrative change to an organisation; it is literally a debate on a subject that is a matter of life and death for many of our fellow Scots. As John said, 52 people died last year while they were waiting for transplant organs.
Recent estimates show that, if presumed consent were to be included in the bill, approximately 29 extra donations would be made. That figure does not mean that 29 people would be saved, but that 29 people would get a heart transplant, 29 more would get a liver transplant and another 58 would get kidney transplants. In total, 116 people would be saved if presumed consent were introduced. In addition to the 116 people who would be saved, another 58 people would be lifted out of blindness. We are talking not only about saving lives; many people need cornea transplants that will give them sight again.
The debate on John Farquhar Munro's amendments is extremely important. As he said, although 90 per cent of people in this country support organ transplantation, very few carry a card. I carry a card and I know that many other members of the Scottish Parliament also do, but many people do not.
Importantly, the debate is not about the removal of anyone's rights. If we were to have a system of presumed consent, a person would have the absolute right to say that they do not wish their body to be used after their death—that right is absolute; it cannot be taken away. Instead, we are talking about granting rights to people who are waiting desperately on transplant lists.
To this day I have never understood why other people should get the final say about what happens to me on my death. If I die and my expressed wish is that my body be used for transplant, why can others override my wish? I do not think that other people—whether my wife, mother, father, daughter or my nearest and dearest friends—should have the final say about what happens to me; I should have the final say. At the point of my death I want my body to be used, if it is at all possible, to help others. That is the right thing to do. By introducing presumed consent we could achieve that; we could give life to many people.
I urge members to look not to their party whips—I hope that they have not been whipped on this issue—but to their consciences, and to consider whether to introduce presumed consent would be the right thing to do for our fellow Scots. I ask members to support John Farquhar Munro's amendments.
I support John Farquhar Munro's amendments for the simple reason that they would help to save lives. I am sure that we can all think of at least one friend or relative who has died waiting for an organ transplant that never came. Statistics suggest that every week someone in Scotland dies while waiting for a transplant and others die without even getting on to the waiting list. Nevertheless, many deceased persons' organs, which could have been used to save lives, are buried or cremated because the deceased person never got round to signing up to the organ donor register or to informing their relatives of their wishes.
It would be wrong to assume that all the people who are not on the register object to organ donation. Opinion polls suggest that about 90 per cent of the population would be willing to donate their organs for transplant, but only 21 per cent are on the register. If a system of presumed consent were to replace the status quo of presumed objection, there would be a greater likelihood of granting the wishes of deceased persons.
What about the wishes of the relatives? John Farquhar Munro's amendments would ensure that if the nearest relative objected and the deceased person had not opted in, the removal of organs for transplant could not go ahead. In such situations, the wishes of the relatives would be taken into account.
Evidence from other countries suggests that a system of presumed consent increases the rate of organ donation. Belgium and the Czech Republic have a system that is similar to what John Farquhar Munro proposes and they both have donation rates of more than 20 per million population, compared with only 12.3 per million population in the United Kingdom. That suggests that the amendments could lead to an increase of more than 60 per cent in the donation rate.
The Westminster Parliament failed to introduce a system of presumed consent in the Human Tissue Act 2004. The bill that is before us fails similarly, although public opinion is already moving towards support for presumed consent. A few years ago, there was only minority support for that position, but last year a survey that was conducted on behalf of the BBC indicated 60 per cent support.
Parliament has a great opportunity to show a lead not just to the people of Scotland but to people throughout the UK. By agreeing to the amendments, Parliament would lead public opinion, set an example to other parts of the UK and save lives, while respecting the wishes of people who have lost loved ones. I urge members to support the amendments.
In introducing his amendments, John Farquhar Munro set out well why the bill is before us, which is to save lives by increasing organ donations. Last year, 52 people died because there were not enough organ donations and 700 people are still on the waiting list for donations.
In Scotland we are doing slightly better than the rest of the UK. Statistics that have just been published show that 21 per cent of people in the UK carry an organ donation card, as John Farquhar Munro and Stewart Maxwell said, but in Scotland the figure is nearer 25 per cent. The card is completely worthless, because it has no legal standing whatever. The card has no force in law, which is why the Executive introduced the bill; it wants to ensure that the card has legal effect. We had a little bit of to-doing at stage 2, but I am delighted that the Executive has ensured that the 25 per cent of Scots who carry cards and are on the register will have their wishes legally enforced as soon as the bill is passed.
Stewart Maxwell said that no one has the right to overrule his wishes. That is correct. The bill is all about authorisation, which the amendments fail to recognise. The whole basis of our national health service is informed consent, not presumed consent. In other words, it is not a case of doctor knows best or the state knows best.
I refer to some of the evidence that the Health Committee received; I wish that some members had turned up to listen to it. According to Dr MacKellar of the Scottish Council on Human Bioethics, the system of presumed consent, which John Farquhar Munro advocates, is supported only by the British Medical Association; none of the other medical organisations is in favour of it, because it would be a breach of the European convention on human rights and of bioethics. The argument that John Farquhar Munro, Stewart Maxwell, Dennis Canavan and others have made that an opt-out system would increase donations is wrong and flawed; it would not do so.
Will the member give way?
If the member waits a minute I will let him in.
In evidence to the Health Committee, John Forsythe of the Scottish Transplant Group said that a few years ago the refusal rate—the rate of relatives refusing consent to transplant—was 30 per cent and that it has now increased to 46 per cent. He said that we can only guess why the rate has risen, but following events at Alder Hey children's hospital, Bristol royal infirmary and other places, there has been a slight loss of trust of those who deliver care among those who receive it. It is important that what we put in place does not damage that trust further.
In paragraph 133 of the Health Committee's stage 1 report we highlighted John Forsythe's comments. We said:
"there is little evidence from international experience that changing to a presumed consent system produces a major change in levels of donation. He indicated that colleagues in Spain, where an opt-out system is used, had advised him that what happens there is very similar to what is proposed in the Bill – that relatives are consulted to ascertain the views of the deceased."
That is what the bill is about.
John Farquhar Munro's amendments are well-meaning—their aim is to increase the level of donations. However, I believe, and all the evidence suggests, that they would not do so. If the amendments are agreed to, they would damage the campaign, in which so many of us throughout the chamber and the country have been involved for so many years. They would increase mistrust of the NHS and the state and they are not supported by any medical organisation other than the BMA.
Authorisation, as is provided for in the bill, is the right way to proceed. I am convinced that, coupled with a major advertising campaign, the bill—unamended by John Farquhar Munro's amendments—will be instrumental in saving lives. It is a very good bill and the 700 people who are waiting for organ donations will welcome it. I do not think that the amendments would help in any way.
Another three members wish to be called. They have two minutes each.
I will be brief. The provision to ensure that once authorisation is in place relatives cannot overturn it after the death of the potential donor will strengthen the present opt-in system. It will, coupled with on-going promotion and support of transplantation, ensure an increased number of donors. None of us disagrees that we need more donors.
I point out to John Farquhar Munro and others who have cited the example of Spain that there, the most important factor in identifying donors is not considered to be the opt-out system but the fact that every hospital in Spain has someone with the responsibility for ensuring that, when a person dies, their relatives are approached with a view to the deceased's organs being donated. That is the significant factor, not whether we have an opt-in or an opt-out system.
I am well aware of John Farquhar Munro's interest in this area, which is similar to mine and that of others, including my colleague, Margaret Jamieson, who has previously debated the matter in the chamber.
This is an emotive issue and I have much sympathy for the arguments that have been expressed. I believe that the bill, in the form in which it has been presented to Parliament, and the information that the Executive has committed to issue as part of the legislative process, will make a huge difference and will highlight the issues surrounding organ donation and transplantation.
I am aware of the systems in other countries, such as Spain, which John Farquhar Munro mentioned. There are various systems in various countries—I do not know which, if any, would be right for Scotland. There are soft opt-out systems and hard opt-out systems. Which would be right for Scotland? We have not had that debate. We did not take evidence on that at length during stage 1 of the bill, but such an important issue deserves careful consideration. We know that some people are in favour of what John Farquhar Munro suggests and that some people are not. We have to ensure that we hear everyone's views and that the professionals who are involved share the view of those who wish to change the legislative position.
We must give the matter careful consideration and we should not deal with it in amendments at stage 3. I hope that we can return to the matter at some point. I will not support John Farquhar Munro's amendments today.
The vote on the amendments should be a free vote, because it is not a party-political issue; it is about the views of individuals. My personal view is that authorisation is the way to proceed because we must respect the wishes of deceased persons. There should be informed consent, not presumed consent.
The relatives of a deceased person who had not expressed a view about organ donation will be consulted. Mike Rumbles made the most important point in the debate so far when he said that the issue is about trust. Like it or not, after Alder Hey and other tragedies, the public have lost some of their trust in the system. That must be built up again; the bill will go some way towards achieving that. It has the potential to increase the level of organ donation, but that potential will be realised only if the bill is backed up by an effective public information campaign about organ donation. That will be the key to the bill's success. I ask people to support the bill and to reject John Farquhar Munro's amendments.
As many members have said, the most important principle in the bill is the principle of authorisation. We have put that principle in place because we recognise that the existing system of passive consent to organ donation is no longer fit for purpose.
In modernising our human tissue legislation, we had a choice to make between a system that would replace passive consent with active authorisation, which is what the bill proposes, or a system which would presume consent on the part of people who do not object, which is what John Farquhar Munro's amendments would put in place. As Janis Hughes suggested, a time might come when it will be safe to presume consent on the part of people who have expressed no view. However, that time is not now.
In my view, a change that is as radical as a switch to a system of presumed consent for transplantation could be introduced only if there were clear evidence of strong public and professional support for it. Although many members might welcome such a move, the evidence simply does not exist. As Mike Rumbles, Nanette Milne and others said, one of the lessons from disclosures about retention of children's organs after post-mortem examination is that, for many people, presumed consent is not consent at all.
Many people are willing to donate organs and tissue after their death, but they want to have their say about what organs or tissue will be taken from their bodies and what that will be used for. That is why the fundamental premise of the bill is so important. The bill is based on the principle that people's wishes should be respected after their death. That means that it is for each person to make those wishes clear. If that has not happened, authorisation must be obtained from the people who were closest to that person in life and who are most likely to know his or her wishes. Without authorisation from the deceased or their nearest relative, transplantation cannot happen. On that basis, I hope that Stewart Maxwell will accept that what he says he wants will be delivered by the fundamental principles of the bill as it stands.
Under Mr Munro's amendments, the only wish that people would be able to record would be to prohibit the removal and use after death of their body parts for transplantation. Where there is no prohibition, the adult may be deemed to have authorised the removal and use of organs but only—as Dennis Canavan pointed out—after their nearest relative has also had the opportunity to object to donation going ahead.
There are a number of grounds on which the nearest relative can object to organ donation, despite the fact that the deceased person had not registered their objection to their organs being donated. One of those is that transplantation of the deceased adult's body parts would cause significant distress to the nearest relative or to the deceased person's partner, parent, child, brother or sister.
A clinician who was in urgent need of an organ would face a much harder task if Mr Munro's amendments were passed. Under the current system, which we wish to replace, he or she would have to seek the consent of the family of the deceased. Under the provisions in the bill, that onus on the clinician will no longer be required if a person has, before their death, authorised organ donation. The nearest relative would need to be consulted only if no such authorisation had been given. In that event, the nearest relative would be asked whether they knew the person's wishes and were prepared to authorise organ donation.
Under Mr Munro's amendments, the clinician would always have to contact the nearest relative unless a specific prohibition had been registered by the deceased. The nearest relative could then object on the basis of the distress to themselves or another person in the family that would be caused by the transplantation. In other words, there would be not fewer barriers to organ donation—which is John Farquhar Munro's intention—but new barriers to organ donation. In practice, if a person wanted to donate their body parts, that positive intention could be ignored and overruled by the nearest relative on the basis of the distress that might be caused to family members.
Will there be a national register of people who want to donate human parts after death?
That is precisely what the bill will do. It will place at the centre of the process the authorisation that has been granted by an individual, rather than an objection that might have been registered by that individual or another person, which is what would be required under a system involving presumed consent.
It has been said that about a quarter of the Scottish population have put their names on the NHS organ donor register. Under the bill, their organs will automatically be available for transplantation after death. Under John Farquhar Munro's amendments, nobody's body would be available in that sense; every case would have to be checked with the nearest relative by the clinician, unless a prohibition was in place.
The approach that the bill takes is the right one. It will increase the number of organ donations, honour the wishes of the deceased and bring up to date the basis on which relatives are approached.
This is a policy matter—it is not simply a matter of personal belief. I therefore urge John Farquhar Munro to seek to withdraw his amendments. If he will not do so, I urge Parliament to maintain the unanimity of support for the principle of active authorisation by rejecting his amendments.
The majority of opinion seems to be opposed to what I propose, which is disappointing.
I support the Executive's proposal in the bill. It is an excellent move and a big improvement on what we have at the moment. However, I introduced the concept of presumed consent to enhance and improve the bill. As a consequence, I would like to test the feeling of Parliament, so I propose that my amendment be voted on.
The question is, that amendment 11 be agreed to. Are we agreed?
No.
There will be a division. I suspend the meeting for five minutes.
Meeting suspended.
On resuming—
We will now proceed with the division.
For
Baird, Shiona (North East Scotland) (Green)
Ballance, Chris (South of Scotland) (Green)
Ballard, Mark (Lothians) (Green)
Canavan, Dennis (Falkirk West) (Ind)
Curran, Frances (West of Scotland) (SSP)
Fabiani, Linda (Central Scotland) (SNP)
Fox, Colin (Lothians) (SSP)
Gibson, Rob (Highlands and Islands) (SNP)
Grahame, Christine (South of Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Kane, Rosie (Glasgow) (SSP)
Leckie, Carolyn (Central Scotland) (SSP)
Mather, Jim (Highlands and Islands) (SNP)
Maxwell, Mr Stewart (West of Scotland) (SNP)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Scott, Eleanor (Highlands and Islands) (Green)
Stevenson, Stewart (Banff and Buchan) (SNP)
Against
Aitken, Bill (Glasgow) (Con)
Arbuckle, Mr Andrew (Mid Scotland and Fife) (LD)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Richard (North East Scotland) (Lab)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Brown, Robert (Glasgow) (LD)
Brownlee, Derek (South of Scotland) (Con)
Butler, Bill (Glasgow Anniesland) (Lab)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Davidson, Mr David (North East Scotland) (Con)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Douglas-Hamilton, Lord James (Lothians) (Con)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Fergusson, Alex (Galloway and Upper Nithsdale) (Con)
Finnie, Ross (West of Scotland) (LD)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Goldie, Miss Annabel (West of Scotland) (Con)
Gordon, Mr Charlie (Glasgow Cathcart) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Johnstone, Alex (North East Scotland) (Con)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lochhead, Richard (North East Scotland) (SNP)
Lyon, George (Argyll and Bute) (LD)
MacAskill, Mr Kenny (Lothians) (SNP)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
Maclean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
Matheson, Michael (Central Scotland) (SNP)
May, Christine (Central Fife) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McConnell, Mr Jack (Motherwell and Wishaw) (Lab)
McLetchie, David (Edinburgh Pentlands) (Con)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Milne, Mrs Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Morgan, Alasdair (South of Scotland) (SNP)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Murray, Dr Elaine (Dumfries) (Lab)
Oldfather, Irene (Cunninghame South) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Radcliffe, Nora (Gordon) (LD)
Robison, Shona (Dundee East) (SNP)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, Tavish (Shetland) (LD)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) (LD)
Sturgeon, Nicola (Glasgow) (SNP)
Swinburne, John (Central Scotland) (SSCUP)
Tosh, Murray (West of Scotland) (Con)
Wallace, Mr Jim (Orkney) (LD)
Welsh, Mr Andrew (Angus) (SNP)
White, Ms Sandra (Glasgow) (SNP)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
The result of the division is: For 18, Against 87, Abstentions 0.
Amendment 11 disagreed to.
Section 4—Disapplication of sections 3, 6 to 12 and 14 in certain circumstances
Amendment 12 not moved.
The amendments in group 2 are technical or consequential amendments. Amendment 1, in the name of the minister, is grouped with amendments 38, 61, 5, 6 and 7.
As you mentioned, Presiding Officer, the amendments in group 2 are technical or consequential amendments. Amendments 38 and 61 follow the amendments that were made at stage 2 to prohibit the withdrawal of authorisation for transplantation after it has been given by an adult's nearest relative or, in the case of a child, by a person with parental rights and responsibilities.
Amendments 5 and 6 seek to ensure that an adult who is blind or unable to write is able to withdraw authorisation for post-mortem examination in writing through the use of a signatory and a witness. They complete the package of amendments that we have lodged to make provision for people in that category. Amendments 1 and 7 are simply drafting amendments.
I move amendment 1.
I refer members to the list of groupings, which shows the pre-emptions.
Amendment 1 agreed to.
Group 3 is on the disapplication of the authorisation requirements in parts 1 and 2 for the bodies of persons who have been dead for at least 100 years. Amendment 2, in the name of the minister, is grouped with amendment 4.
Amendments 2 and 4 were lodged as a result of concerns expressed by the Wellcome Trust and the Medical Research Council to the Executive about the possibility that the bill would curtail investigations of bodies of historical interest. Much can be learned from the removal of a tissue sample from a body that has been held in an existing collection for many decades. If an ancient body is discovered preserved in a peat bog, researchers will naturally be keen to examine the body for the information that it might yield—for example, on the cause of death. Under the bill, such investigations might conceivably be held to constitute an offence, because no authorisation for such activities would be in place from the individual or from identifiable family members, for obvious reasons.
We do not want scientists to have to investigate the family tree of a body in a peat bog before they undertake carbon dating of it. Therefore, amendment 2 disapplies the authorisation and offence provisions in part 1 in cases in which the person died at least 100 years before the day on which section 3 comes into force. Amendment 4 does the same in relation to part 2, on post-mortem examinations.
The amendments are drafted broadly so that they will permit anything involved in relation to the body of a deceased person, where the person died at least 100 years before the day on which the relevant provision comes into force.
Amendment 2 moved—[Lewis Macdonald]—and agreed to.
After section 5
Amendment 13 moved—[John Farquhar Munro].
The question is, that amendment 13 be agreed to. Are we agreed?
No.
There will be a division.
For
Baird, Shiona (North East Scotland) (Green)
Ballance, Chris (South of Scotland) (Green)
Ballard, Mark (Lothians) (Green)
Canavan, Dennis (Falkirk West) (Ind)
Curran, Frances (West of Scotland) (SSP)
Fabiani, Linda (Central Scotland) (SNP)
Fox, Colin (Lothians) (SSP)
Gibson, Rob (Highlands and Islands) (SNP)
Grahame, Christine (South of Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Kane, Rosie (Glasgow) (SSP)
Leckie, Carolyn (Central Scotland) (SSP)
Mather, Jim (Highlands and Islands) (SNP)
Maxwell, Mr Stewart (West of Scotland) (SNP)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Scott, Eleanor (Highlands and Islands) (Green)
Swinburne, John (Central Scotland) (SSCUP)
Against
Aitken, Bill (Glasgow) (Con)
Arbuckle, Mr Andrew (Mid Scotland and Fife) (LD)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Richard (North East Scotland) (Lab)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Brown, Robert (Glasgow) (LD)
Brownlee, Derek (South of Scotland) (Con)
Butler, Bill (Glasgow Anniesland) (Lab)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Davidson, Mr David (North East Scotland) (Con)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Douglas-Hamilton, Lord James (Lothians) (Con)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Fergusson, Alex (Galloway and Upper Nithsdale) (Con)
Finnie, Ross (West of Scotland) (LD)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Goldie, Miss Annabel (West of Scotland) (Con)
Gordon, Mr Charlie (Glasgow Cathcart) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Henry, Hugh (Paisley South) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Johnstone, Alex (North East Scotland) (Con)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lochhead, Richard (North East Scotland) (SNP)
Lyon, George (Argyll and Bute) (LD)
MacAskill, Mr Kenny (Lothians) (SNP)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
Maclean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
Matheson, Michael (Central Scotland) (SNP)
May, Christine (Central Fife) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McConnell, Mr Jack (Motherwell and Wishaw) (Lab)
McLetchie, David (Edinburgh Pentlands) (Con)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Milne, Mrs Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Morgan, Alasdair (South of Scotland) (SNP)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Murray, Dr Elaine (Dumfries) (Lab)
Oldfather, Irene (Cunninghame South) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Radcliffe, Nora (Gordon) (LD)
Robison, Shona (Dundee East) (SNP)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, Tavish (Shetland) (LD)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stevenson, Stewart (Banff and Buchan) (SNP)
Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) (LD)
Wallace, Mr Jim (Orkney) (LD)
Welsh, Mr Andrew (Angus) (SNP)
White, Ms Sandra (Glasgow) (SNP)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
The result of the division is: For 18, Against 84, Abstentions 0.
Amendment 13 disagreed to.
Amendment 14 not moved.
Section 6—Authorisation: adult
Group 4 is on the prohibition of the use of body parts for transplantation. If members look at the list of groupings, they will see the pre-emptions. Amendment 15, in the name of Nanette Milne, is grouped with the amendments shown in the papers.
I will speak principally to amendments 15 and 17, because the others are all consequential on amendment 15. If the amendments appear to be somewhat complicated, that is because they reflect the complexity of the bill.
The amendments would enable a person to register opposition to the removal of a body part after death for the purpose of transplantation, research, education, training or audit. They would give the choice actively to prohibit the removal of a body part as well as actively to authorise it. They address the potential problem that would face a person who does not know his nearest relatives and so cannot make his wishes known to them, or who does not trust them to act on his wishes. Without the amendments, such a person could not prevent unknown or unreliable relatives from making the decision to have body parts used after death against the person's wishes.
We feel that the absence of a fail-safe mechanism to allow people to record their wishes, whether positive or negative, is a cause for concern. The amendments would allow for everyone's wish to be respected and accepted, and would prevent an unethical situation arising should a decision go against the real wishes of a deceased person.
Apart from amendment 17, the amendments in the group are consequential on amendment 15. They mirror the structure of the bill, so that each time the authorisation process is mentioned, the choice of prohibiting authorisation will also be mentioned.
The amendments do not apply to children who are under the age of 12, but they do apply to those who are aged between 12 and 16. If children who are between the ages of 12 and 16 can authorise donation, it is logical that they should also be allowed to prohibit donation.
The amendments also reach into the area of checking the relevant paperwork after death, to ensure that medical practitioners check for prohibition as well authorisation before removing body parts for transplantation and so on.
Amendment 17 addresses the situation that could arise if conflicting mandates are in place. It makes it clear that the terms of the later authorisation should be followed. For example, if the first mandate stated that all organs could be donated following death, and then another was drawn up afterwards that stated that all organs could be donated apart from the corneas, the latter would be acted upon as reflecting the true wishes of the deceased person.
The amendments do not seek to introduce a register for prohibition because, as was made clear in evidence to the Health Committee, there are many ways of registering authorisation, whether through the donor register, verbally or in writing; therefore, neither should notice of prohibition be limited to a register. Again, that mirrors the provisions in the bill. However, the bill does not prevent the setting-up of a register and the issue could be revisited in future if necessary.
It seems to me only right that people who feel strongly about the matter should be given the opportunity to record their opposition to the removal of some or all of their body parts for the purposes stated in the bill.
I move amendment 15.
I read the amendments with interest, and I believe that they would add an unnecessary level of complication. If the individual wishes to prohibit the use of all their body parts, they need only not actively authorise use, and there are other methods by which someone who does not wish one or more of their body parts to be used, but is quite prepared for other parts to be used, can make that clear without having a level of complication in the bill that puts the use of certain body parts on a sort of statutory basis. I fail to see why the bill would need to go into such a level of complication and detail when, if an individual does not wish a particular body part to be used, they can express that very clearly to their relatives during their lifetime.
Although I understand the intention behind the amendments, they would lead to a level of complication and difficulty in the bill—and perhaps to some unforeseen circumstances in certain aspects of the day-to-day working of the bill—that would be unfortunate. In times to come, we might need to revisit the subject if clear difficulties arise from the practical application of the bill. However, at this stage, I am not minded to support the amendments.
Nanette Milne's amendments respond to very serious discussions at stage 1, but I do not believe that they are necessary or appropriate. I do not think that we should extend the organ donor register to become a register of both authorisations and prohibition; nor should we set up and run a separate register of organ donation prohibitions. Whichever vehicle was used to implement the amendments, it would run directly counter to the purpose of the bill, which is first and foremost to support people's wish to do something positive after their death. That is the principle behind authorisation.
I recognise that there are people who do not want parts of their bodies to be used for the purposes in the bill and who might feel strongly about that. I fully accept the principle that their wishes should be respected, but I am confident that the bill will allow such objections to donation to be respected. The first safeguard in the bill is that nothing can happen if there is no authorisation by the person, or by their nearest relative or a person with parental rights and responsibilities. There can be no transplantation by default, nor—because of the decision that we made a few minutes ago—can there be any transplantation on the basis of presumed consent. The bill underlines that by bringing criminal sanctions to bear. If a clinician were to proceed without authorisation, they would face stiff penalties, including a fine or imprisonment, or both.
Where there is no record of the person's wishes, we seek to address the concern that a family member might sanction a donation through ignorance by placing responsibility for authorisation on the person who was closest to the deceased in life and so is most likely to have the greatest awareness of the deceased's attitude to the issues.
Section 7 makes it clear that where the nearest relative has "actual knowledge" that the person was unwilling for any part of their body to be used for transplantation, they must not give authorisation. The reality is that people who feel strongly about such matters will not keep their feelings to themselves. They will share their views with their family and friends. If their views have a religious dimension, they will no doubt share them with others of the same faith. It is hard to envisage strong views on such a matter being unknown to any of those who might be asked.
That would leave only the highly unusual case of a person living in isolation, either without any surviving relatives or, for some reason, unable or unwilling to mention to anyone close to them their own strongly held views on such matters. Of course, if people in that position object to organ donation, their wishes should be respected as much as anyone else's, but I do not believe that recording those wishes in a register set up for that purpose, or in the organ donor register, is the way to do that. In such cases, people can set out their wishes in their will, and they can also ensure that their views are reflected in the medical record held by their general practitioner.
I think that the medical record is the best place for such views to be recorded, because if there was the possibility of somebody becoming an organ donor, the clinician would either contact that person's GP or, if they were unable to do that, consult the person's medical record. No clinician will proceed with a transplant involving an organ about which he or she is not fully informed. Recording wishes in that way is the key and can already be done routinely, either verbally or by writing to one's GP setting out one's objections and asking for the letter to be added to the medical record.
I understand the concerns behind Nanette Milne's amendments, and I am happy to offer guidance to GPs to ensure that they include any such objection in a patient's record. I will tell GPs that any such objections should also be included in the extract from medical records that they provide to NHS 24. In the near future, the introduction of the electronic health record will provide a further vehicle by which an objection recorded by a GP can be accessed readily by a transplant co-ordinator seeking a donor. In addition, we are working with the General Medical Council on including in its "Good Medical Practice" guidance, which applies to all doctors, a provision making clear a doctor's duty to respect the wishes of his or her patients after death.
I ask Nanette Milne to consider withdrawing her amendments on the basis of the assurance that I have been able to give today.
I lodged the amendments in the group precisely to deal with the isolated people whom the minister mentioned—people who do not have relatives in this country or close by to whom they have been able to express their wishes, and who feel strongly about not donating their organs. It has been made quite clear to me by the Scottish Council on Human Bioethics that there are people who are currently considering withdrawing their names form the organ donor list if the bill is not amended to take account of the fact that some of them specifically do not want to donate certain organs, because they feel so strongly about the issue. It would be regrettable if a bill that attempts to increase organ donation were to lead to the loss of even two or three donors. I appreciate what the minister has said about offering guidance, but I will press amendment 15.
The question is, that amendment 15 be agreed to. Are we agreed?
No.
There will be a division.
For
Aitken, Bill (Glasgow) (Con)
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Brownlee, Derek (South of Scotland) (Con)
Davidson, Mr David (North East Scotland) (Con)
Douglas-Hamilton, Lord James (Lothians) (Con)
Fergusson, Alex (Galloway and Upper Nithsdale) (Con)
Goldie, Miss Annabel (West of Scotland) (Con)
Johnstone, Alex (North East Scotland) (Con)
McLetchie, David (Edinburgh Pentlands) (Con)
Milne, Mrs Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Scanlon, Mary (Highlands and Islands) (Con)
Tosh, Murray (West of Scotland) (Con)
Against
Arbuckle, Mr Andrew (Mid Scotland and Fife) (LD)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Richard (North East Scotland) (Lab)
Ballance, Chris (South of Scotland) (Green)
Barrie, Scott (Dunfermline West) (Lab)
Brown, Robert (Glasgow) (LD)
Butler, Bill (Glasgow Anniesland) (Lab)
Canavan, Dennis (Falkirk West) (Ind)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Fabiani, Linda (Central Scotland) (SNP)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Gibson, Rob (Highlands and Islands) (SNP)
Glen, Marlyn (North East Scotland) (Lab)
Gordon, Mr Charlie (Glasgow Cathcart) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Harvie, Patrick (Glasgow) (Green)
Henry, Hugh (Paisley South) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lochhead, Richard (North East Scotland) (SNP)
Lyon, George (Argyll and Bute) (LD)
MacAskill, Mr Kenny (Lothians) (SNP)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
Mather, Jim (Highlands and Islands) (SNP)
Matheson, Michael (Central Scotland) (SNP)
Maxwell, Mr Stewart (West of Scotland) (SNP)
McCabe, Mr Tom (Hamilton South) (Lab)
McConnell, Mr Jack (Motherwell and Wishaw) (Lab)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Morgan, Alasdair (South of Scotland) (SNP)
Morrison, Mr Alasdair (Western Isles) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Oldfather, Irene (Cunninghame South) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Robison, Shona (Dundee East) (SNP)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)
Scott, Eleanor (Highlands and Islands) (Green)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stevenson, Stewart (Banff and Buchan) (SNP)
Swinburne, John (Central Scotland) (SSCUP)
Welsh, Mr Andrew (Angus) (SNP)
White, Ms Sandra (Glasgow) (SNP)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
The result of the division is: For 13, Against 67, Abstentions 0.
Amendment 15 disagreed to.
Amendment 16, in the name of John Farquhar Munro, has already been debated with amendment 11. I ask John Farquhar Munro to indicate whether he intends to move amendment 16.
I do not intend to move amendment 16. There is also a list of amendments in my name further on in the marshalled list, and I would like to withdraw all those amendments at this stage.
That is a good idea, but I am afraid that I cannot allow you to do that. However, I will be as quick as I possibly can be when I come to that point in the proceedings.
I just thought that it might save us some time.
It would have done and I am grateful for your suggestion, but I am afraid that we have to have each decision to move or not to move amendments properly recorded.
Amendments 16 to 23 not moved.
Section 7—Authorisation by adult's nearest relative
Amendments 24 to 37 not moved.
Amendment 38 moved—[Lewis Macdonald]—and agreed to.
Amendment 38 pre-empts amendment 39.
Section 9—Authorisation: child 12 years of age or over
Amendments 41 to 57 not moved.
Section 10—Authorisation as respects child who dies 12 years of age or over by person with parental rights and responsibilities
Amendment 58 not moved.
Group 5 is on authorisation by the nearest relative when no person has parental rights or responsibilities. Amendment 59, in the name of Eleanor Scott, is grouped with amendments 63, 109 and 111 to 113.
I should begin by declaring an interest, as I am a member of the British Medical Association.
Amendment 59 and the other amendments in the group, which are in my name, are very much in the spirit of the rest of the bill, and are simply intended to close a gap. In debating the bill, we are dealing with highly sensitive matters, none more so than the death of a child.
The sudden death of a child is always devastating and an unspeakable tragedy for the child's family. Some families can find a small measure of consolation if their dead child's organs can give life to another child. In general, the bill provides for that, but it makes no provision for the rare eventuality of no one having parental rights at the time of the child's death. One can all too easily envisage a situation that might arise if a whole family were involved in a fatal accident, when both parents were killed and the child later died of his or her injuries. As the bill stands, another relative could give permission for the parents' organs to be donated, but no one could give permission for the child's organs to be donated.
If the parents are unable to consent to their child's organs being donated because they have been killed or so severely injured that they are unable to give consent, a near relative should be able to give consent. That is what amendments 59 and 63 would do.
I will read out amendment 109, which gives the hierarchy of relatives in the order in which they can be asked for permission. That hierarchy is in line with the one elsewhere in the bill for adults, but it is the other way round. The amendment states:
"For the purposes of sections 10 and 11, the nearest relative is the person who immediately before the child's death was—
(a) the child's parent;
(b) the child's adult brother or sister;
(c) the child's grandparent;
(d) the child's adult uncle or aunt;
(e) the child's adult cousin;
(f) the child's adult niece or nephew."
That is similar to the hierarchy for adults, except that it does not include provision for a family friend to give permission if no relatives are found. I felt that that would not be appropriate in the circumstances.
Amendment 111 clarifies that the hierarchy outlined in amendment 109 includes step-parents and half-siblings, which is in line with the rest of the bill.
Amendments 112 and 113 are essentially tidying-up amendments. Amendment 113 provides that a relative can be skipped in the hierarchy if he or she either does not want to make the decision or cannot realistically be contacted. That parallels the provisions in the bill for adults.
My amendments would close a gap and are in line with the intention of the bill.
I move amendment 59.
As Eleanor Scott said, the amendments stem from concerns that were expressed in evidence that the BMA submitted to the Health Committee at stage 1.
As with other amendments this morning, we have sympathy with the concerns expressed and the motives that lie behind them, particularly in the context of transplantation, where there would—in a very few cases—be a risk of valuable organs not being used because there was no one to give the necessary authorisation.
This is a complex area, but to some extent the matter is already addressed in Scots law. Section 7 of the Children (Scotland) Act 1995 allows parents to appoint guardians for their children in the event of the parents' death. That means that, if the parents die, the appointed guardian immediately becomes responsible and takes over parental rights and responsibilities. The guardian would, as a result, be classed as the person who had parental rights and would, therefore, in the circumstances that Eleanor Scott describes, be able to give authorisation for a transplantation to go ahead.
That outcome would, of course, require parents to have appointed a guardian under the 1995 act. In any case, we are committed to raising people's awareness of what might happen after a person's death. One issue that we will want to highlight, and which reflects Eleanor Scott's concerns, is that parents should always take the precaution of appointing a guardian who would have responsibility for their children after their death.
The minister's approach seems strange. He says that he will take on board the concerns expressed by Eleanor Scott and try to make parents appoint a guardian. Frankly, I would be surprised if anyone in the chamber had appointed a guardian in the way that he suggests. I certainly have not appointed a guardian in the event of a car crash in which my wife, my daughter and I are all fatally injured. Why not accept Eleanor Scott's amendments and deal with the problem here and now?
Public awareness raising clearly must start in the chamber. All of us who have children should have regard to their interests in the event that we die unexpectedly. Everyone in the chamber and elsewhere should be encouraged to do so, and to appoint a guardian to take parental responsibility if, tragically, the circumstances arise in which that is required.
The point that lies behind the amendments is reasonable. However, the amendments have been lodged only at stage 3, and I fear that they do not achieve their intended purpose. I will highlight a couple of issues.
First, the provisions would not apply to children for whom a local authority has parental rights and responsibilities, which in reality is a far more common occurrence than the car crash scenario that the amendments are intended to address. The bill was amended at stage 2 to address the Health Committee's recommendation that local authorities be prohibited from having the power to authorise any of the activities in the bill. Children for whom local authorities have parental rights and responsibilities would not be covered by Eleanor Scott's amendments. The changes that were made at stage 2 reflect the recognition—which we believe is right—that there will be occasions on which it is not proportionate to make provision for authorisation of organ donation on the part of a child.
The other aspect that gives me significant concern relates to amendment 109, on the nearest relative list. As presented, the list includes in the hierarchy a parent of a child, but does not provide for circumstances in which that parent has, for one reason or another, ceased to have parental rights and responsibilities. In some circumstances, a parent might have had his or her parental rights removed, for example if he or she had been involved in abuse of the child. It would be inconsistent to allow such a parent to have the right to give or withhold authorisation under the bill. Equally, there might be reasons why another relative did not have access to the child during their life, and in such a case the relative should not be given a role after the child's death.
I fully recognise the purpose of the amendments, but I believe that promoting the appropriate mechanisms whereby parents can ensure that their children's interests are looked after in the event that the parents die is the way forward. I therefore oppose the amendments in Eleanor Scott's name.
I point out to the minister that amendment 109 was lodged only at stage 3 because we had expected the Executive to plug the gap earlier in the process. Amendment 109 is intended to plug a gap that exists in the bill, and it is very much in the spirit of the bill.
I agree with the minister's comment that if a guardian had been appointed they would have parental rights, and my amendments would not come into play. However, as Stewart Maxwell said, the reality is that most people have not appointed a guardian. Perhaps in 10 or 15 years' time public awareness will be such that most people will have done so, but in the event of a child losing both parents in an accident now, they are likely to be left without anybody who has parental rights.
As I said in my opening speech, the death of a child is always a tragedy. The only greater tragedy is when a second child who might have been saved by the donated organs of the first child dies. We are talking about rare eventualities, but they are circumstances for which the bill should provide, so I press amendment 59.
The question is, that amendment 59 be agreed to. Are we agreed?
No.
There will be a division.
For
Aitken, Bill (Glasgow) (Con)
Baird, Shiona (North East Scotland) (Green)
Ballance, Chris (South of Scotland) (Green)
Ballard, Mark (Lothians) (Green)
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Brownlee, Derek (South of Scotland) (Con)
Canavan, Dennis (Falkirk West) (Ind)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Curran, Frances (West of Scotland) (SSP)
Davidson, Mr David (North East Scotland) (Con)
Douglas-Hamilton, Lord James (Lothians) (Con)
Fabiani, Linda (Central Scotland) (SNP)
Fergusson, Alex (Galloway and Upper Nithsdale) (Con)
Fox, Colin (Lothians) (SSP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gibson, Rob (Highlands and Islands) (SNP)
Grahame, Christine (South of Scotland) (SNP)
Harper, Robin (Lothians) (Green)
Harvie, Patrick (Glasgow) (Green)
Hyslop, Fiona (Lothians) (SNP)
Johnstone, Alex (North East Scotland) (Con)
Kane, Rosie (Glasgow) (SSP)
Leckie, Carolyn (Central Scotland) (SSP)
Lochhead, Richard (North East Scotland) (SNP)
Mather, Jim (Highlands and Islands) (SNP)
Matheson, Michael (Central Scotland) (SNP)
Maxwell, Mr Stewart (West of Scotland) (SNP)
McLetchie, David (Edinburgh Pentlands) (Con)
Milne, Mrs Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Morgan, Alasdair (South of Scotland) (SNP)
Neil, Alex (Central Scotland) (SNP)
Robison, Shona (Dundee East) (SNP)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, Eleanor (Highlands and Islands) (Green)
Welsh, Mr Andrew (Angus) (SNP)
White, Ms Sandra (Glasgow) (SNP)
Against
Arbuckle, Mr Andrew (Mid Scotland and Fife) (LD)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Richard (North East Scotland) (Lab)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brown, Robert (Glasgow) (LD)
Butler, Bill (Glasgow Anniesland) (Lab)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Gordon, Mr Charlie (Glasgow Cathcart) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lyon, George (Argyll and Bute) (LD)
MacAskill, Mr Kenny (Lothians) (SNP)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
Maclean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
May, Christine (Central Fife) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McConnell, Mr Jack (Motherwell and Wishaw) (Lab)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Oldfather, Irene (Cunninghame South) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)
Scott, Tavish (Shetland) (LD)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) (LD)
Swinburne, John (Central Scotland) (SSCUP)
Wallace, Mr Jim (Orkney) (LD)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
The result of the division is: For 39, Against 66, Abstentions 0.
Amendment 59 disagreed to.
Amendment 60 not moved.
Amendment 61 moved—[Lewis Macdonald]—and agreed to.
Amendment 62 is pre-empted.
Section 11—Authorisation as respects child who dies under 12 years of age
Amendment 63 not moved.
Section 12—Removal of part of body of deceased person: further requirements
Amendments 64 to 97 not moved.
Section 12A—Removal of tissue sample to determine viability of transplantation
Amendments 98 to 100 not moved.
On a point of order, Presiding Officer. I ask the Presiding Officers to consider the point that, this morning, a whole series of very detailed stage 3 amendments has simply not been moved. They will have required a lot of work from ministers and civil servants. I wonder whether the issue could be examined with regard to efficient government and making our parliamentary processes more efficient.
It is possible—indeed, probable—that if a member lodges a substantive amendment, the clerks will point out that a significant number of consequential amendments will be necessary. Each of those amendments requires to be moved in turn. However, it might be worth reflecting on the question whether there should be a mechanism to allow consequential amendments to be withdrawn if the substantive amendment is withdrawn. If that was the point of order to which Mr McNulty was heading—[Laughter]—the Presiding Officers will reflect on it.
I detect from the mood of the chamber that we should ignore the point of order and deal with the issue. [Applause.]
Section 13—Preservation for transplantation
Group 6 is on bodies that are being preserved for transplantation not being moved to other premises. Amendment 3, in the name of the minister, is the only amendment in the group.
In response to a stage 2 amendment from Dr Jean Turner, I gave a commitment to look again at section 13(1), which provides for the steps that can be taken by managers of NHS hospitals and registered independent health care premises to preserve bodies for transplantation.
Amendment 3 seeks to clarify that such managers will be able to move bodies or body parts to other premises only if authorisation is already in place. It will therefore not be permissible under the bill to transport a body or body part to other premises if authorisation for transplantation does not exist. Of course, in only a very few situations can a body be moved and still be available for transplantation, but doing so when no one has authorised transplantation might upset family members and could be viewed as disrespectful to the deceased.
I believe that amendment 3 clarifies the point in the spirit of the bill, as it makes provision for those very unusual circumstances on the basis of authorisation.
I move amendment 3.
Amendment 3 agreed to.
Section 8—Existing request by adult not acted on before commencement of sections 3 and 6
Amendment 40 not moved.
Section 14—Offences: removal or use of part of body of deceased person for transplantation, research etc
Amendment 101 not moved.
Section 18A—Authorisation by virtue of Part 1 for transplantation to have priority
Amendments 102 to 106 not moved.
After section 20
Amendment 4 moved—[Lewis Macdonald]—and agreed to.
Section 24—Authorisation of post-mortem examination etc: adult
Amendment 5 moved—[Lewis Macdonald]—and agreed to.
Section 44—Conditions attached to authorisation
Amendment 107 not moved.
Section 45—Nearest relative
Amendments 108 to 113 not moved.
Section 46—Witnesses: additional provision
Amendment 6 moved—[Lewis Macdonald]—and agreed to.
Amendments 114 and 115 not moved.
Section 48—Amendment of the Anatomy Act 1984
Amendment 7 moved—[Lewis Macdonald]—and agreed to.
Section 54—Interpretation
Group 7 is on the meaning of "tissue" and "tissue sample". Amendment 8, in the name of the minister, is grouped with amendments 9 and 10.
The purpose of amendments 8, 9 and 10, which seek to adjust an existing definition in and add a further definition to the interpretation section of the bill, is to clarify a number of issues that were raised in evidence or were highlighted by the Health Committee.
Amendment 8 amends the definition of "tissue" in section 54(1) explicitly to define tissue as including skin, corneas and bone marrow.
Amendment 9 adds the phrase "any derivative of skin" to the definition of "tissue sample", which will allow such parts of the body including hair and nails to be retained from a post-mortem examination.
Amendment 10 is a technical amendment that is consequential to amendment 8. For the purposes of the bill, corneas will be included as a form of tissue, which reflects the way in which the transplantation community regards them.
Clarifying that skin is a form of tissue will allow living children and adults with incapacity to donate skin for the purposes of transplantation, subject to independent scrutiny by the Human Tissue Authority. It will also mean that adults with capacity will not be prohibited from donating skin.
In the post-mortem context, the amendments seek to clarify the meaning of "tissue sample" in section 23(5), which lists the parts of the body that can be retained from a post-mortem examination. As a result, "tissue sample" will be understood as including skin and derivatives of skin, such as hair and nails.
This group of amendments fulfils a commitment that I gave to the Health Committee at stage 2, and resolves the doubts that were raised about the status of certain types of human material under the bill.
I move amendment 8.
Amendment 8 agreed to.
Amendments 9 and 10 moved—[Lewis Macdonald]—and agreed to.
That ends consideration of amendments.