My Lords, I want to make a brief contribution because I was in my noble friend’s position at the Second Reading of this Bill. It is important to reflect on the theme of the amendments tabled by my noble friend Lord McColl: they are about trust. He is of course absolutely right that in the course of any changes we make in the future and whatever system we create, we must maintain the trust of British citizens, patients and their families. I agree completely with him in that intention. That is why, as the noble Baroness, Lady Randerson, has just said, I support the intention of having a good campaign, although I do not think that it is the sort of thing which ought to be put into legislation, for the obvious reasons. Indeed, as the noble Lord, Lord Carlile, pointed out, it would be barmy for any Government to undertake this kind of policy change and not pursue that, because to do so would be to fatally undermine the trust that already exists. At the moment, we have a very strong system in England which we intend will only get better.
I am sure my noble friend the Minister will confirm that it has always been our intention to provide a thoroughgoing, lengthy and extensive campaign for every new generation coming through in support of the idea of deemed consent. This policy has been supported by successive Prime Ministers: Gordon Brown supported it, David Cameron had an interest in it and Theresa May has made it a personal commitment. Given the benefits that such an approach yields, as has been demonstrated in Wales and elsewhere, it is inconceivable that any Government would not put the necessary resources into it. Indeed, we have an excellent record on public health campaigns and information campaigns in this country. The intention behind Amendment 3 is right, although I do not think that it is appropriate to put it into primary legislation
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Perhaps I may touch briefly on Amendment 1. My noble friend has talked about the opt-out rate in Wales. He sees that as a potential flaw in the system. However, I see it as a benefit of the scheme because it means that, under a deemed consent system, people are actually able to express a preference not to have their organs donated, which they are unable to express now. That is good because it is about control and agency. Under the system we have now, it must be the case that some people’s organs are being donated because their families have agreed even though they would not have agreed. That cannot be right. I used to be sceptical about opt-out systems but the proposal in this legislation, which has been demonstrated to work in Wales, strikes the right balance, giving people power and control while making sure that they can make a positive choice if they are well informed.
The original wording of the clause gets the balance right because it provides an opportunity for family members to give information that could lead a reasonable person to believe that the patient would not have consented to donation. The change that my noble friend seeks to make would put a hard block on any donation where it is not possible to contact a person in a relationship with the deceased person in the immediate hours after death. We must bear in mind that this has to happen within minutes or hours of someone dying in order for organs to be donated. As the noble Baroness, Lady Randerson, has said, that fatally undermines the intention of the Bill, because it would mean that the donation would not happen unless someone could be contacted. As the noble Baroness said, in some circumstances people do not have anyone who can be contacted but they may have been happy to consent. That again is the opposite of personal choice.
While I absolutely understand and respect my noble friend’s intentions in his amendment and his very strong desire to make sure that we maintain trust, on which I commend him completely, I do not think that Amendment 1 would have the effect that he is looking for. I believe that it would actually be counterproductive because it would restrict the choices that people had made under a much more informed system. I am sorry that I am not able to give him that support but I join with him in asking for confirmation from my noble friend the Minister that enormous efforts will be made to make sure that discussions with family members
are held, that people are well informed and that there is adequate staffing. Moreover, as is the case now, it should be made clear that if family members object, no donation will go forward. I have never come across anyone in those circumstances whose professional ethics would allow them to proceed, regardless of what the governing primary legislation says.