Human Tissue (Authorisation) (Scotland) Bill
11 June 2019
The bill gives us a fresh opportunity to maximise organ donation and help some of the hundreds of people who are waiting for organ transplants that could save their lives. Instead of presuming that people do not want to donate their organs after death unless they have opted in, we will presume that people want to donate unless they have opted out.
That change is made within the framework of the law as it stands. The bill amends the Human Tissue (Scotland) Act 2006—it is evolution, not revolution, which I welcome; in this case, not least because I took the current law through the Parliament and I believed then that it laid the foundations for whatever evolution in the law might be needed in the future.
Before 2006, people did not authorise transplantation of their organs after death; they consented to transplantation. The difference between “consent” and “authorisation” is not just the difference between two words. Providing for authorisation makes the law far clearer than it was, in requiring that people’s wishes on these matters be followed.
The 2006 act called for a concerted effort to tell people how authorisation works and to explain the difference that organ donation can make. Successive Governments have delivered on that. As a result, Scotland achieved the highest rates of authorisation in the UK over several years—the level is now half the adult population, although, as members said, that is not the whole story.
The 2006 act was designed to enable the further development of the transplantation infrastructure in Scotland. As members said, the Health and Sport Committee heard impressive evidence from specialist nurses in organ donation about how the system works.
Despite all that progress and our high rate of opting in, Scotland has the highest rate of bereaved relatives saying no to organ donation. Health professionals are understandably reluctant to challenge a family’s right to do that at what is already a very sad and stressful time. The law should not seek to reduce the family’s right to be heard, nor should it compromise the duty of care that doctors and nurses owe to the bereaved at the time of death.
Instead, the bill seeks to widen the pool of people from whom organ donation might come. We are following the lead that Wales took in 2015, and a similar change will happen in England in 2020. Rates of donation in Wales have now overtaken rates in Scotland. The coming into force, in 2015, of the Human Transplantation (Wales) Act 2013 was the trigger for increased public awareness. It took some time for that to result in increasing rates of organ donation, but that is now happening, and the time is right to follow Wales’s lead.
As other members have done, I thank my colleague Mark Griffin and my former colleague Anne McTaggart for their efforts to introduce the principle of opting out, in place of opting in. The Scottish Government has now enabled that principle within the framework of the existing law, and with broad cross-party support, as has been evident today.
Our passing this bill can help to increase rates of donation and save lives, but changing the law will not in itself be enough. Amendments that we agreed to today mandate ministers to use the bill to raise awareness and encourage people to authorise donation, even though deemed authorisation will be in place, and to strengthen the transplantation infrastructure in Scotland.
We also agreed that ministers should review the legislation, including the way in which the new approach has been communicated, in five years’ time.
We should renew the promise that the Parliament made in 2006. We will give the measures every support, to achieve the change that we want to see, but if the Parliament needs to return to this topic in the future, it should not hesitate to do so.
11 June 2019