Human Tissue (Authorisation) (Scotland) Act 2019

14 Opt-out declaration by child 12 years of age or over

After section 8A of the 2006 Act insert—

“8B Opt-out declaration: child 12 years of age or over

(1) A child who is 12 years of age or over may make a declaration that the child does not authorise the removal and use of a part of the child’s body after the child’s death for one or more of the purposes referred to in section 3(1).

(2) If there is in force a declaration by virtue of subsection (1) by a child as respects removal and use of a part of the child’s body for a purpose referred to in section 3(1), the part must not be removed and used for that purpose.

(3) A declaration by virtue of subsection (1) must—

(a) if it is as respects transplantation, be—

(i) in writing, or

(ii) made to the register organisation orally or in writing,

(b) if it is as respects a purpose referred to in paragraphs (b) to (d) of section 3(1), be in writing.

(4) If there is in force immediately before a child becomes an adult a declaration by virtue of subsection (1) by the child, the declaration is to be treated as an opt-out declaration by virtue of section 6B(1) once the child becomes an adult.

8C Withdrawal of opt-out declaration: child 12 years of age or over

(1) A declaration by virtue of section 8B(1) may be withdrawn by the child—

(a) in writing, or

(b) if the declaration was made to the register organisation, by giving the withdrawal to the register organisation orally or in writing.

(2) Subsection (3) applies if—

(a) there is in force a declaration by virtue of section 8B(1) by a child as respects removal and use of a part of the child’s body for a purpose referred to in section 3(1), and

(b) the child gives an authorisation by virtue of section 8(1) of removal and use of the part for that purpose.

(3) The declaration by virtue of section 8B(1)—

(a) is treated as withdrawn by the child to the extent that it relates to removal and use of the part for that purpose, and

(b) otherwise remains in force.

(4) Subsections (5) to (7) apply if—

(a) there is in force at the relevant time a declaration by virtue of section 8B(1) by a child as respects removal and use of a part of the child’s body for a purpose referred to in section 3(1), and

(b) a person provides evidence to a health worker that would lead a reasonable person to conclude that—

(i) the child’s most recent view was that the child was willing for the part to be removed and used for that purpose, or

(ii) if the child were capable of making a decision about removal and use of the part, the child would be willing in the circumstances for the part to be removed and used for that purpose.

(5) The declaration by virtue of section 8B(1)—

(a) is treated as withdrawn by the child to the extent that it relates to removal and use of the part for that purpose,

(b) otherwise remains in force, and

(c) to the extent that it remains in force, is treated as being in force at the relevant time for the purposes of—

(i) section 8D(1)(a)(ii) and (iii),

(ii) section 16I(2)(a)(ii).

(6) The child is treated as having authorised removal and use of the part for that purpose by virtue of section 8(1).

(7) The authorisation referred to in subsection (6) is treated as being in force at the relevant time for the purposes of—

(a) section 8D(1)(a)(i),

(b) section 16F(1)(e),

(c) section 16I(2)(a)(i).”.