Hansard

With your indulgence, I will take a little bit longer on this group than on one or two of the groups that we have just dealt with. I gave a commitment to the committee and to the Parliament during the stage 1 debate on the bill to lodge amendments at stage 2 to deal with adults with incapacity. Nanette Milne has lodged several amendments of her own—to ensure, perhaps, that the Executive did not forget that commitment. I assure members that we have given the issue detailed consideration in order to lodge amendments that will achieve all our objectives. They are important amendments, although I agree that they are complex. It is also important to get on record exactly what the amendments try to do. The bill's approach to living donation is that, under section 15(1)(a), the removal of an organ, part of an organ or any tissue that is not regenerative tissue from a living child is an offence, unless certain criteria are met. Similarly, section 15(2)(a) creates the offence of using for transplantation such organs, parts of organs or tissue as have come from a living child, unless certain criteria are met. The section 15 offences relating to the removal and use of organs from children can absolutely not be disapplied. Section 15 also contains similar removal and use offences in relation to adults. Adults are treated differently from children in two important ways. First, the removal and use of tissue from an adult is not currently an offence under section 15. Secondly, the offences relating to the removal and use of organs or parts of organs from adults may be disapplied in certain circumstances by means of regulations made under section 15, whereas they cannot be disapplied in relation to children. Concerns were expressed at stage 1 of the bill that, first, adults with incapacity should be given the same protection in relation to transplant as children. Secondly, there was concern that an absolute ban on transplants from a living child or an adult with incapacity might mean that organs that had been removed from such a person during domino organ transplant operations could not be used. There was also agreement that it should be possible for children and for adults with incapacity to donate regenerative tissue. We have taken all those concerns into account. The amendments are designed to ensure that the statutory position for children and adults with incapacity is that they should not be able to be a living donor of an organ or part of an organ, except in the context of a domino organ transplant operation. They should also not be a living donor of any tissue other than regenerative tissue.In order to achieve that result, the bill requires to be amended to specify that the removal of any tissue from a living adult with incapacity is an offence, which is what amendments 150 to 154 do. We also need to specify that the use of tissue so removed is an offence, which is what amendments 156 and 161 do. The bill needs to set out the circumstances in which tissue can be removed from an adult with incapacity and thereafter used without an offence being committed. Amendment 162 makes it clear that the relevant offences relating to the removal and use of tissue do not apply when the tissue removed and used for transplantation is regenerative tissue. The other criterion specified in section 15 is that no reward has been offered in contravention of section 17. Amendment 162 will introduce new sections 15(3A) and 15(3B), under which a power will be given to make regulations that set out the other criteria that have to be satisfied to avoid committing an offence. Those regulations will enable ministers to disapply the offences already created by the bill relating to the removal and use of organs, parts of organs or any tissue from a child, as well as the new offences that will be introduced by amendments 154 and 161 relating to the removal and use of tissue from a living adult with incapacity. We also need to provide for an appeals procedure. That is already the case with regulations made under section 15(3) in relation to adults. As with living donations generally, people are allowed to have a defence in certain circumstances against the charge of having committed a relevant offence. Amendment 164 provides a defence in respect of each of the new offences that will be created under section 15(1)(a) and new section 15(1)(c) and under section 15(2)(a) and new section 15(2)(c). That defence is that the person who removed or used the organs or tissue believed reasonably that an exception applied to that removal or use. That is one group of amendments. It is also worth saying something about the amendments on the important issue of the two types of donation that will be open to an adult with incapacity. The bill needs to recognise that a domino transplant operation involves a two-stage process. At the first stage, the adult with incapacity has organs implanted for his or her benefit. That counts as treatment under part 5 of the Adults with Incapacity (Scotland) Act 2000, so we intend to preserve the role of the adult with incapacity's welfare attorney or welfare guardian under that part in respect of the first stage of the domino operation.However, at the second stage of the operation—the onward donation of the spare organ that has been freed up—the donation does not count as treatment, because it does not directly benefit the adult with incapacity. We therefore intend to clarify the provisions of the 2000 act that deal generally with the powers of the welfare attorney and the welfare guardian, so that they will not have powers in relation to the donation stage of a domino operation. The necessary changes to the 2000 act will be in the amendments that are to be lodged for the second day of stage 2 consideration of the bill. I hope that I am making myself clear. The amendments that we are dealing with now will move us in the chosen direction, but the committee will need to consider additional amendments at another meeting.If the welfare attorney or welfare guardian should not have authority for the onward stage of a domino transplant, someone else must make the decision. Our view is that the Human Tissue Authority is best placed to do that, because of its wider responsibilities, so we want to make that possible. The cases that will need to go to the Human Tissue Authority will be clear, because an adult with incapacity will have been identified by being certified as incapable in relation to the transplant operation. Amendment 165 addresses that and amendment 162 will allow the Human Tissue Authority to provide the necessary approval for donation of the spare organ.Amendment 165 also recognises that there should be an exemption from an offence for a domino organ transplant.Our intention is that the Human Tissue Authority should scrutinise donation in regenerative tissue cases. It is setting up procedures to assess the capacity of living people who are potential donors, which is appropriate. However, the existing procedure for certification of incapacity under part 5 of the 2000 act does not apply in relation to the removal and use of regenerative tissue from an adult with incapacity; it applies only when the adult benefits, as with my earlier point. Therefore, our amendments refer to a new function of the Scottish ministers to assess whether an adult is incapable in relation to a decision about the removal and use of regenerative tissue for transplantation. If the opinion is that the adult is incapable in relation to such a decision, the Scottish ministers can issue a certificate of incapacity. Amendment 167 makes it clear that the certificate can last only for a year, in recognition of possible concerns about its duration.Other amendments deal with all those points in detail. I will not go into all the detail on all the amendments—the committee gets the drift that the amendments are designed to bring the adult with incapacity provisions into line with the intentions of, I think, the committee, and certainly of speakers in the stage 1 debate.I move amendment 149.