Human Transplantation (Wales) Act 2013 (Consequential Provision) Order 2015

Debate between Baroness Finlay of Llandaff and Baroness Randerson

Wednesday 4th March 2015 Grand Committee

[The Parliamentary Under-Secretary of State, Wales Office (Baroness Randerson) (LD)]

My Lords, the order was laid before this House on 21 January 2015 and is made under Section 150 of the Government of Wales Act 2006, which allows for amendments to be made to primary and secondary legislation in consequence of provisions made by an Assembly Act. The order is made as a consequence of the Welsh Government’s Human Transplantation (Wales) Act 2013, which was passed by the National Assembly for Wales on 2 July 2013. I shall refer to this as the 2013 Act.

The 2013 Act changed the way in which consent for the purposes of transplantation is to be given for the donation of organs and tissue in Wales. From 1 December 2015, after death, a person’s consent will be deemed to have been given in most cases, unless they had expressed a wish for or against donation. The notion of “appropriate consent” from the Human Tissue Act 2004, which I shall refer to as the 2004 Act, is therefore replaced by two concepts in Wales: “express consent” and “deemed consent”.

The order makes provision to amend the 2004 Act to allow for organs and tissue donated in Wales under the deemed consent regime of the 2013 Act to be used in transplantation procedures undertaken in England and Northern Ireland. It will also ensure that a person appointed to act as a representative for the deceased, under either the 2013 Act or the 2004 Act, will be recognised whether the transplantation activity takes places in Wales, England or Northern Ireland. Finally, the order also amends the Quality and Safety of Organs Intended for Transplantation Regulations 2012, to make reference to the deemed and express forms of consent that will soon take place in Wales.

In preparing the order, the Wales Office has worked closely with the Department of Health as well as the Welsh Government. We are all agreed that the provisions in this order are necessary to ensure that the new Welsh organ donation regime interacts with the existing regime in other parts of the UK. The order is therefore important to the UK. Without the order, when the deemed consent system comes into force in Wales at the end of this year, it would not be possible to use organs, tissue and cells donated under deemed consent in Wales for the benefit of patients in England and Northern Ireland. The order does not extend to Scotland. The Scottish Government have confirmed that no amendments are required to Scottish legislation for organs, tissue and cells taken under the deemed consent regime of the 2013 Act to be transplanted in Scotland. Deemed consent is not being introduced in England or Northern Ireland as a result of this order.

The order demonstrates the UK Government’s continued commitment to work with the Welsh Government in order to make the devolution settlement work. I hope noble Lords will agree that the order is a sensible use of the powers in the Government of Wales Act 2006 and that the practical result is something to be welcomed. I commend the order to the Committee.

[Baroness Finlay of Llandaff (CB)]

My Lords, I am most grateful to the Minister for the way that she succinctly introduced this important order.

I must declare an interest as president of the BMA. Since 1999, it has been BMA policy that we should move to what is often called an opt-out or deemed consent process. Indeed, I was also part of the move to create the opportunity for preferential donation to a relative in the event of there being a family member in need of an organ when there was a tragedy within that family. I understand from NHS Blood and Transplant that that is now being used approximately three or four times a year and actually working very well. My other interest is that I tried to introduce a Bill for a single kidney deemed consent, which did not get anywhere but did, I think, push the process further down the road.

The order is obviously important. We know that, every day in the UK, three people die waiting for a donated organ. The change under the 2013 Act should hopefully change the situation in Wales. But of course there is concern that Wales may become, if you like, a net donor of organs to the rest of the UK. My questions relate to that possibility.

First, what steps are the Government taking to increase the number of donors in England? Secondly, are the Government planning to review the Human Tissue Act 2004? Given that we now have these developments in the legislation in Wales, are the Government willing to facilitate an informed public debate about opt-out in England?

My other concern relates specifically to the cost, which will be borne by Wales. For the 2013 Act in Wales to work well, it will increase pressure on intensive care beds and it has been predicted that there will be a need to increase intensive care provision as a result of pushing up the number of donors and holding patients while the processes are gone through. That cost will be borne by NHS Wales. Is that increased cost going to be considered by NHS England and reimbursed in some way to NHS Wales? The cost-saving of somebody receiving an organ for transplant will be a cost-saving to NHS England, not NHS Wales. We know that there are significant cost-savings, quite apart from quality of life and life expectancy, if there is a successful transplant. I am grateful to the Minister for having met me and discussed this previously and understand that the cost of restructuring the donor register will be shared between England and Wales. But that is a one-off cost and will be quite small, whereas the relative cost to Wales for organs may be much higher and ongoing over many years, until such time as England and Northern Ireland follow suit.

Can the Minister also confirm that there will be no adverse effect on the use of organs donated in England, Northern Ireland or Scotland for patients in Wales if there is a very good match? Will the fact that we will have a different consent procedure, which will allow organs to go from Wales, also allow organs to come into Wales? That will become particularly important in paediatrics, where the size of the organ is important, as well as the tissue match of the organ.

Finally, last week I was privileged to host the signing of a memorandum of understanding between NHSBT and the MOHAN Foundation from India. The MOHAN Foundation has been working to push up the consent rate when families are approached and has done it very successfully. It has consent rates consistently over 60%, whereas in the black and minority ethnic community, particularly the Asian community—which has a very high demand for organs because of damage from diabetes; there are a lot of Asians on the transplant register awaiting transplant—the number of organs donated is remarkably low and at best hits 40% at times of agreement; in many areas it is much lower than that. Will the lessons that have been learnt over recruitment be supported and actively rolled out in a campaign aimed at those communities in England and Northern Ireland, but particularly in England, where the majority of those communities are, to make sure that the consent rate within those communities, where the genetic match would be much better, does go up, at least to equal the consent rate in the rest of England?

Wales: Commission on Devolution in Wales

Debate between Baroness Finlay of Llandaff and Baroness Randerson

Monday 18th November 2013 Lords Chamber

[Baroness Randerson]

I know that the noble Lord is very conversant with the problems of the M4, and in the Newport area in particular. I am glad that he has welcomed the contribution that these changes will make to alleviating them.

The early part of the Statement set out the contribution that the UK Government have made to infrastructure in Wales, in particular railway infrastructure. The noble Lord needs to bear in mind that when an issue has been devolved the funding is devolved as well. If there are flaws in the devolution settlement in Wales, we have to look back to the Government of Wales Act 2006 and the original devolution settlement at the end of the last century. It has possibly been difficult in the past for the Welsh Government to deal with major infrastructure projects, which is exactly why we say that, as well as devolution of minor taxes, there needs to be a referendum to offer the people of Wales the opportunities given by the devolution of a portion of income tax.

[Baroness Finlay of Llandaff (CB)]

Given that the current settlement has been recognised as inadequately taking into account the high number of older people in Wales who are not economically active and the demands that those with multiple comorbidities put on health and social care, and given the widely acknowledged poverty of infrastructure of roads and other forms of communication, particularly IT and telephones, will the Government undertake to review the funding settlement that followed the Act so that, during the transition phase, there can be some correction in the perceived deficit in core funding to Wales?

[Baroness Randerson]

I remind the noble Baroness of the October 2012 joint statement in which the Welsh and UK Governments acknowledged the procedure that would be followed in future if Welsh funding were again to become unfair in terms of further convergence. The settlement has been set out very clearly in that joint statement, so it is important that she bears that in mind for future reference.