Draft Human Tissue (Permitted Material: Exceptions) (England) Regulations 2020

Lord Mackay of Clashfern Excerpts

Monday 18th May 2020 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, I am strongly in favour of this instrument, as I am of the Act on which it is based. I first realised the importance of transplantation early on in its development. A very close friend of ours developed kidney failure and required constant dialysis. It then became possible for him to have a transplant. He had a twin brother who was willing to give his kidney. He was operated on in one theatre and my friend was operated on in a next-door theatre, so they were able to take the kidney across very quickly. It cured him completely and he had a considerable life. Sadly, he has now died, but Professor Woodruff, who was a pioneer of this technology, was his surgeon. I have felt tremendous emotional support for this whole field ever since.

I just wonder whether the code of practice that the authority has put out fully reflects what the Act the regulations are based on says. The Act says that the person concerned—somebody who is qualified—

“is to be deemed, for the purposes of subsection (6)(ba), to have consented to the activity unless a person who stood in a qualifying relationship to the person concerned immediately before death provides information that would lead a reasonable person to conclude that the person concerned would not have consented.”

In that situation it seems that if no objection is taken by a qualified person, consent is implied. The code of practice says at paragraph 91:

“In a situation where consent could be deemed but there is no family to speak with to establish the individual’s last known decision, donation should not proceed.”


I am of course well aware that the original Act does not require a donation to proceed, but it makes it lawful that it should proceed. The practitioners have to take into account many considerations in deciding whether a particular transplant will take place—considerations of the available organ and of the state of health of the person to whom it is proposed to be transplanted. It is quite clear that the Act does not require a consented donation to actually be carried out for reasons of that kind, but it is wrong for the HTA to say that it will not proceed in that case. I do not know on what basis it has the authority to do that, because the Act certainly seems to imply consent. Therefore, it seems that the only considerations that could not have that would be of the medical, practical kind such as I mentioned.

The only other thing I want to mention is that it seems the publication of the draft instrument was a matter to go on to the authority’s website. Was the department responsible for that particular matter?