Wales: Organ Donation

Lord Wallace of Tankerness Excerpts

Wednesday 23rd March 2011 Lords Chamber

[Lord Wigley]

To ask Her Majesty’s Government what representations they have received from the Welsh Assembly Government concerning possible changes to the law in Wales relating to organ donation.

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

The Welsh Assembly Government made clear to the Government their intention to proceed with proposals on organ donation in Wales, and the Government worked closely with the Assembly Government to enable the proposed legislative competence order to be put forward to Parliament for pre-legislative scrutiny earlier this year. Following the result of the referendum in Wales on 3 March, the Government have now received notification from the Assembly Government that they have withdrawn the proposed legislative competence order relating to organ donation.

[Lord Wigley]

My Lords, I am grateful for that reply. Does the Minister accept that the reason for withdrawing the order was because the Assembly now has full legislative competence in areas dealing with health and that after the elections on 5 May it may well want to pursue this matter within its own competence? If that is the case, can he give an assurance that the Government will not to try to intervene? Given the uncertainties and doubts the Government had about human rights and cross-border issues, can he give an assurance that they will not prevent the Assembly from moving ahead, if it so wishes, to legislate on the question of presumed consent to enable far more organs to be available for those who need them?

[Lord Wallace of Tankerness]

My Lords, I understand that the current Welsh Assembly Government withdrew the current legislative competence order on the basis of the change that is about to take place as a result of the referendum. They have indicated that they look forward to the Welsh Assembly Government formed after the elections bringing forward their own legislation. It would not be for this Government to prevent that legislation going forward. However, under Section 112 of the Government of Wales Act 2006 it is a matter for the Counsel General for Wales and the Attorney-General, following the passage of a Bill, to consider whether that Bill should be referred to the Supreme Court on any issue of competence. I exercise a similar responsibility, along with the Attorney-General and the Lord Advocate, in relation to Scotland. These are often complex matters and it would be wrong to hypothesise about a Bill which may not come to pass and when we have not yet seen its final shape or form.

[Lord Roberts of Llandudno]

My Lords, as the House might know, there have been uncertainties about cross-border issues. For instance, for years neurology services have been sent from north Wales to Liverpool. Are they now to go to south Wales, when it takes far longer to go there? Furthermore, have we resolved the cross-border situation not only in the UK but also, in our relationship with Europe, the possibilities of cross-country involvement in Europe?

[Lord Wallace of Tankerness]

My Lords, as we do not yet have any legislation, the first part of my noble friend’s questions about the provision of services may be premature. I simply observe that practical issues could arise if such legislation were to come to pass, given that the Human Tissue Act 2004 and the equivalent legislation for Scotland means that in England, Northern Ireland, Scotland and at the present time in Wales there is no presumed consent. There has to be active consent. Therefore, if there was a donation from Wales, the question would arise whether that was allowed to be used in other parts of the United Kingdom if there had only been presumed consent.

With regard to Europe, there has been a recent EU directive, to be implemented by August 2012, that requires member states to verify donor or donor family consent. It recognises that different states have different opt-in, opt-out systems of consent. There are no specific plans for a European donor card, but member states are working together to raise the important profile of donation and to encourage more people to support or agree to donation.

[Baroness Finlay of Llandaff]

My Lords, will the Minister explain what work is currently being undertaken to ensure that where Welsh patients are transferred to ITU beds, that system would be able to continue in the future, and how IT intensive care beds are being increased? A shortage of intensive care beds across both England and Wales is in part responsible for some of the low donation rates, so conflicts may arise when Welsh patients are in English intensive care beds.

[Lord Wallace of Tankerness]

My Lords, it is difficult to speculate about what might happen, although if there was opt-out legislation in force in Wales, for example, and a person ordinarily resident in Wales was in hospital in England or another part of the United Kingdom, would somebody have to look up not only the donor register for the whole of the United Kingdom but also a possible opt-out register for Wales? There could be practical difficulties. No doubt that matter will be addressed should any legislation come before the National Assembly for Wales.

It is also important to stress the fact that, following on from the independent organ donation task force report in January 2008, considerable efforts are being made to raise the profile of donation and to put in place trained nursing and clinical staff who can take on the important task of talking to relatives. Indeed, since the recommendations of that report were implemented, donations have increased by some 28 per cent.

[Lord Hunt of Kings Heath]

My Lords, is that not the point? Even with presumed consent, the family will always have to be consulted. Therefore the advantage of presumed consent is often overstated. The key is having campaigns and information available to encourage people to be willing donors in the first place.

[Lord Wallace of Tankerness]

I entirely agree with the noble Lord. Indeed, there were two reports in 2008 from the organ donation task force. One dealt with the infrastructure arrangements to which I referred, and the other looked at presumed consent. The latter report concluded that the case was not made at the present time to move to a system of presumed consent, but rather emphasised the importance of the infrastructure arrangements and raising the profile. To date I think that has borne some fruit.

[Lord Hamilton of Epsom]

Can my noble friend tell me how long the Welsh Assembly has been a Government? Did this follow the referendum that transferred further powers from Westminster to Wales? Are we not witnessing a ratchet of powers being transferred to both Wales and Scotland, which will inevitably lead to them both becoming independent?

[Lord Wallace of Tankerness]

My Lords, given that, during the association that I have had as a spokesman in your Lordships' House for the Wales Office, the acronym WAG for Welsh Assembly Government has been one that I am familiar with, it is not something that has happened since the referendum.

[Lord Davies of Coity]

My Lords, I realise that this Question concerns Wales and the legislation for presumed consent, but does the Minister or the Government agree that it would be a good thing to have presumed consent in England?

[Lord Wallace of Tankerness]

My Lords, as I indicated in my answer to the noble Lord, Lord Hunt of Kings Heath, this matter has been looked at. Under the previous Government, an independent organ donation task force was set up. After doing considerable research and looking at the effects in other countries, it reached the consensus that moving at this time to a system of presumed consent would not be effective and that far more effective would be to take some of the measures that I have already described—namely, improving the infrastructure for donation and for raising the profile of donation. In the three years since that report came out there has been an increase in donations by 28 per cent.