Health, Social Care and Sport Committee

Meeting date: Tuesday, April 19, 2022

Official Report 597KB pdf

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Health and Care Bill

Item 3 is an evidence session on a further supplementary legislative consent memorandum relating to the United Kingdom Health and Care Bill—LCM S6-5c, which was lodged on 12 April 2022. I welcome Humza Yousaf, the Cabinet Secretary for Health and Social Care, who is accompanied by Scottish Government officials Sam Baker, who is acting head of unit in infected blood and abortion services; Robert Henderson, who is team leader in the intergovernmental and international relations unit; and Lucy Orren, who is a solicitor for the food, health and social care division. I thank you all for joining us.

I believe that the cabinet secretary has an opening statement to make.

Good morning. I hope that you are all keeping well and keeping safe.

I thank the committee for inviting me to discuss the amendment to the Health and Care Bill regarding the extension of the offences in the Human Tissue Act 2004 and the Human Tissue (Scotland) Act 2006 to cover the supply of human organs outside the UK.

The LCM before the committee is the third supplementary LCM for the Health and Care Bill that I have placed before the Scottish Parliament. I have written to the UK minister, Mr Argar, to express my concern about having to make several requests for valuable parliamentary time to be spent on considering the legislation as a result of the piecemeal way in which the bill and the UK Government’s engagement with the Scottish Government have been handled.

The amendment includes provisions for additional criminal offences when a person who is habitually resident in Scotland, or who is a UK national, travels outside the UK to buy, or to in any way arrange a form of reward for, an organ. In my LCM, I have recommended that the Parliament grant legislative consent to the UK Government’s amendment. Although we do not have any evidence to suggest that the small number of people who live in Scotland who have organ transplants abroad pay for their organs, the Scottish Government is committed to tackling unethical organ donation practices. The amendment would deter anyone who might want to consider travelling abroad and paying for an organ, and it would allow progress to be made towards implementation of the Council of Europe Convention against Trafficking in Human Organs.

I am happy to take any questions that the committee might have.

Thank you. I note that you agree with the substance of the amendment. However, you mentioned the UK Government’s piecemeal approach. We always keep an eye on the consultation processes for LCMs or statutory instruments that come our way as a result of changes that the UK Government makes to legislation. Has there been enough consultation between the two Governments as part of the process?

You make an important point. Because of the way in which the UK Government’s amendment has been brought forward and the requirement for an LCM, there has been a very limited amount of consultation. That is the source of our frustration, which, in turn, limits our ability to consult.

As you would imagine, we have consulted our clinical advisers on organ donation. The national group on organ donation has managed to take a view, and no concerns have emerged. In principle, we are in agreement with what the amendment seeks to do. However, if we had had more time—if the process had been gone through in a more structured and less ad hoc way—we would have been able to have more meaningful and deeper consultation with a variety of stakeholders.

Good morning, cabinet secretary. Does this legislative consent memorandum on illegal organ donation, procurement and so on mean that our own Scottish legislation—the Human Tissue (Scotland) Act 2006—will need to be amended?

No, it should not require any further amendment. My understanding is that this UK-wide legislation—which, as I should have said in my opening remarks, does not include Northern Ireland; because of elections, its Parliament is not sitting—does not require anything further from us. I am happy for officials to elaborate on that, but if the Parliament agrees to the LCM, we will not be required to make any further legislative amendments.

Sam Baker wants to respond.

I confirm that that is correct. There would be no need for us to make any further amendments. The UK bill will amend the 2006 act, so no further changes will be required.

Thank you for that.

I have another quick question. If someone whom we thought was on a transplant list for a kidney, for example, showed up looking for anti-rejection medication and seemed to be doing well, we might assume that they had received an organ somewhere else. Does the legislation support better traceability of organ surgery, procurement and so on? Given that anti-rejection medication is part of the treatment following transplant, would that be a trigger for pursuing what might be criminality if someone had received an organ outside Scotland?

We need to be careful here. We know of a small number of instances of individuals going abroad for organ transplants—mainly kidney transplants. Indeed, a constituent of mine went abroad for such a reason, and, as far as we know, there was nothing to suggest that anything unethical happened in that respect. There are protocols and processes in place to ensure that we in Scotland are informed if anyone goes abroad for an organ transplant.

You are right to say that, once an individual has had an organ transplant, things might come out in the conversation about the aftercare that they receive in Scotland, and a clinician would then have to judge whether anything would need to be reported, because there had been a breach of the law or because an offence had been committed.

The legislation does not put an onus on clinicians to do that. Indeed, I suspect that they have to make these really difficult judgments all the time. Of course, I do not need to tell Emma Harper that. Given her background, I am sure that she well understands the situation. In some respects, the change in the law might be an additional bit of information for those working on organ donations and transplants and aftercare, and they should be made aware of it.

In Scotland, we now have, for want of a better phrase, an opt-out approach to organ donation, but what else is the Scottish Government doing to increase the number of organ donors in Scotland? Would that not help to limit the risk of commercial dealings around organ transplants?

That is an excellent question. Ultimately, we do not want anyone to have any reason to go abroad for a transplant, and a lot of work is being done in that area. I am happy to give more detail about that, but I would just note that a core theme of our “Donation and Transplantation Plan for Scotland: 2021-2026” is to increase the availability of transplants. I suppose that, in this respect, an important aspect of the plan is its focus on increasing the number of living kidney donors. As I said earlier, the majority of transplants that have been undertaken abroad have been kidney transplants.

We are also working to encourage people from as many diverse backgrounds as possible to come forward for to donate organs, which is key. In many instances, people of similar ethnic backgrounds will be a better match for organ donation. I hope that if more people from more diverse backgrounds come forward, that will militate against the need—or perception that there is a need—for someone to have to go to another country where there are donors with their ethnic background to get a possible match. A lot of good work is being done, and I commend the “Donation and Transplantation Plan for Scotland: 2021 to 2026” to the member if she has not had the chance to see it yet.

I thank the cabinet secretary and his officials for answering our questions.