Human Tissue (Authorisation) (Scotland) Act 2019

7 Deemed authorisation for transplantation as respects adult

(1) The 2006 Act is amended as follows.

(2) After section 6C insert—

“6D Deemed authorisation for transplantation: adult

(1) An adult is deemed to have authorised the removal and use of a part of the adult’s body after the adult’s death for transplantation where there is in force at the relevant time—

(a) no express authorisation by the adult of removal and use of any part of the adult’s body for transplantation, and

(b) no opt-out declaration by the adult as respects removal and use of the part of the adult’s body for transplantation.

(2) Subsection (1) does not apply in relation to—

(a) a person who was not ordinarily resident in Scotland for a period of at least 12 months ending immediately before the relevant time (a “non-resident adult”),

(b) an adult who is incapable of understanding the nature and consequences of deemed authorisation,

(c) an excepted body part,

(d) a part of the adult’s body (that is not an excepted body part), if a person provides evidence to a health worker that would lead a reasonable person to conclude that—

(i) the adult’s most recent view was that the adult was unwilling for the part to be used for transplantation, or

(ii) if the adult were capable of making a decision about removal and use of the part, the adult would be unwilling in the circumstances for the part to be used for transplantation.

(3) In this Part, an adult is incapable of understanding the nature and consequences of deemed authorisation if, over a significant period ending immediately before the relevant time, the person was incapable of understanding—

(a) that an adult may be deemed to have authorised removal and use of a part of the adult’s body after the adult’s death for transplantation, and

(b) that if authorisation is so deemed, after the adult’s death part of the adult’s body may be removed from the body and used for transplantation.

(4) An example of when an adult is to be considered “incapable of understanding the nature and consequences of deemed authorisation” is if there is evidence available to a health worker, including any evidence referred to in section 16H(4), that would lead a reasonable person to conclude that the adult is so incapable.

(5) An “excepted body part” is a part of the body specified in regulations made by the Scottish Ministers.

(6) Before laying draft regulations under subsection (5) before the Scottish Parliament, the Scottish Ministers must consult such persons as they consider appropriate.”.

(3) In section 59(3) (regulations subject to affirmative procedure), after paragraph (aa) insert—

“(ab) regulations under section 6D(5);”.