Chapter 10 Guidance on answering selected questions from the book

Question

Why do you think that the HTAct 2004 did not adopt as an inviolable principle that material from humans could never be removed or stored without valid consent?

Guidance

In its initial draft the Human Tissue Bill sought to reflect the principle that material from a person could not be stored or used without that person’s consent.  It was not surprising that this principle was the basis for the bill given that it was a response to the Alder Hay Scandal (discussed in Chapter 9).  However, by the time the Bill became an Act that principle was abandoned and there are numerous exceptions to the principle.

In answering the question you should consider the exceptions to the principle and in particular those relating to research, audit and education.  You can consider the arguments for why these exceptions exist.  The use of material in post mortems may also be considered.

The issue raises a broader debate over the nature of individual and communal interests in bodily material.  If our bodily material is owned by us should not its storage require our consent?  That would be the normal rule in property law.  However, does this discussion show that the property model gives too much protection to individual rights?  Alternatively you might think the Act places too much weight on the interests of medical professionals and fails to recognise the rights of patients.

Readings

Harris, J. (2002) ‘Law and regulation of retained organs: the ethical issues’, Legal Studies 22: 527.Price, D. (2005) ‘The Human Tissue Act 2004’, Modern Law Review 68: 798.