Human Tissue (Scotland) Act 2006

2006 asp 4

The Bill for this Act of the Scottish Parliament was passed by the Parliament on 2nd February 2006 and received Royal Assent on 16th March 2006

An Act of the Scottish Parliament to make provision in relation to activities involving human tissue.

Part 1STransplantation etc.

General functions of the Scottish MinistersS

1Duties of the Scottish Ministers as respects transplantation, donation of body parts etc.S

[F1(1)]It is the duty of the Scottish Ministers to—

(a)promote, support and develop programmes of transplantation;

(b)promote information and awareness about the donation for transplantation of parts of a human body;

(c)promote the taking of any necessary measures relating to the quality and safety, storage and use of any such part donated for that purpose [F2;

(d)promote information and awareness about how transplantation may be authorised (including, in particular, how authorisation of transplantation may be deemed to be given);

(e)promote information and awareness about the nature of pre-death procedures, when they may be carried out and how they may be authorised].

[F3(2)The duty under subsection (1)(d) must be carried out at least once in every calendar year.

(3)The Scottish Ministers must, in carrying out the duty under subsection (1)(d), have regard to the need to—

(a)provide information to the public about—

(i)how authorisation of transplantation may be deemed to be given,

(ii)how to give an express authorisation or make an opt-out declaration,

(b)provide information in health care settings about—

(i)how authorisation of transplantation may be deemed to be given,

(ii)how to give an express authorisation or make an opt-out declaration.

(4)In subsection (3)(b), “health care settings” means any place where a service is provided for or in connection with the prevention, detection or treatment of illness, other than an independent health care service (within the meaning of section 10F of the National Health Service (Scotland) Act 1978).]

Textual Amendments

Commencement Information

I1S. 1 in force at 1.9.2006 by S.S.I. 2006/251, art. 3

2Assistance and supportS

(1)The Scottish Ministers may provide assistance and support to any person providing, or proposing to provide, a service relating to transplantation.

(2)Assistance and support provided under subsection (1) is to be provided on such terms, including terms as to payment, as the Scottish Ministers think fit.

(3)In this section, “assistance” includes financial assistance.

Commencement Information

I2S. 2 in force at 1.9.2006 by S.S.I. 2006/251, art. 3

[F4Establishment and maintenance of registerS

Textual Amendments

2AEstablishment and maintenance of registerS

(1)The Scottish Ministers must make arrangements for the establishment and maintenance of a register (referred to in this Part as “the Register”) for the purposes of facilitating—

(a)the carrying out of their duty under section 1(a),

(b)the removal and use of part of the body of a deceased person for transplantation that is authorised by virtue of section 6, 6D, 6E, 6F, 6G, 8, 8D, 10 or, as the case may be, 10A.

(2)The Register must include information relating to—

(a)persons who authorise the removal and use of a part of the person's body after the person's death for transplantation,

(b)persons who do not authorise the removal and use of a part of the person's body after the person's death for transplantation.

(3)The Register is not to be open to public inspection or search.

(4)Information may be kept in the Register in any form the Scottish Ministers consider appropriate.

2BDelegation of function of establishing and maintaining RegisterS

(1)Arrangements made by the Scottish Ministers under section 2A(1) may in particular authorise a person to establish and maintain the Register.

(2)In this Part, “register organisation” means—

(a)the Scottish Ministers, or

(b)where a person is authorised as mentioned in subsection (1), that person.

(3)The Scottish Ministers must publish information about arrangements under section 2A(1) so far as they authorise a person as mentioned in subsection (1).

2CDisclosure of informationS

(1)The register organisation may disclose information about a person from the Register to—

(a)a person listed in subsection (3) for the purpose of enabling or assisting a person listed in subsection (3) to carry out functions under this Part that relate to the removal and use of a part of the body for transplantation,

(b)a person operating outwith Scotland for the purpose of enabling or assisting that person to carry out functions that relate to the removal and use of a part of the body for transplantation.

(2)The power to disclose information about a person from the Register conferred by subsection (1) includes the power to disclose that there is no information kept in the Register about the person.

(3)The persons are—

(a)a registered medical practitioner,

(b)a person (or person within a description) authorised under section 11(1)(b),

(c)a health worker who is acting in accordance with section 16H or 16I.

(4)A person who receives information under subsection (1)(a) may, for the purpose of enabling or assisting a person listed in subsection (3) to carry out functions under this Part that relate to the removal and use of a part of the body for transplantation, disclose that information to a person listed in subsection (3) or (5).

(5)The persons are—

(a)in relation to a person who at the relevant time is an adult—

(i)the adult's nearest relative,

(ii)any other person who is consulted under section 16H(2)(d) in relation to the adult,

(b)in relation to a person who at the relevant time is a child—

(i)a person who has parental rights and parental responsibilities in relation to the child,

(ii)a person mentioned in section 10A(4),

(iii)any other person who is consulted under section 16I(2)(b) in relation to the child.

2DPower to make provision about RegisterS

(1)The Scottish Ministers may by regulations make provision in relation to the Register.

(2)Regulations under subsection (1) may, in particular—

(a)modify section 2A(1) to add the purpose of facilitating the removal and use of part of the body of a deceased person for a purpose referred to in paragraphs (b) to (d) of section 3(1),

(b)modify the list in section 2A(2),

(c)modify the list in section 2C(3) to—

(i)add a person (or description of person),

(ii)remove, or vary the description of, a person (or description of person),

(d)modify the purposes for which information may be disclosed under section 2C.]

Use of part of body of deceased person for transplantation, research etc.S

3Use of part of body of deceased person for transplantation, research etc.S

(1)Part of the body of a deceased person may be removed from the body and used, for the purposes of—

(a)transplantation;

(b)research;

(c)education or training;

(d)audit [F5or quality assurance],

only if the requirements of subsection (2) are satisfied as respects the part.

(2)The requirements are that—

(a)the removal and use for the purpose in question are authorised in accordance with section 6, [F66D, 6E, 6F, 6G, 6H, 8, 8D, 10 or, as the case may be, 10A]; and

(b)the removal is carried out in accordance with section 11.

Textual Amendments

Commencement Information

I3S. 3 in force at 1.9.2006 by S.S.I. 2006/251, art. 3

4Disapplication of sections 3, 6 to 11 and 16 in certain circumstancesS

Sections 3, 6 to 11 and 16 do not apply—

(a)to anything done for the purposes of the functions or under the authority of the procurator fiscal;

(b)in relation to the removal of any part of the body of a deceased person during a post-mortem examination of the body or the subsequent retention and use of the part or in relation to retention and use of a part of a body to which section 36 applies;

(c)in relation to retention and use of tissue sample to which section 38 or 47 applies or an organ to which section 40 or 48 applies;

(d)as respects the removal, retention or use of any part of a body of a deceased person if it is the body of a person who died before the day on which section 3 comes into force and at least 100 years have elapsed since the date of the person's death.

Commencement Information

I4S. 4 in force at 1.9.2006 by S.S.I. 2006/251, art. 3

5Consent by procurator fiscal to removal of part of bodyS

(1)Where a person knows, or has reason to believe, that an examination of the body of a deceased person is, or may be, required for the purposes of the functions of the procurator fiscal, the person may not, except with the consent of the procurator fiscal, remove from the body any part of it, or authorise such removal, for a purpose referred to in section 3(1).

(2)For the purposes of subsection (1), consent by the procurator fiscal may be given verbally and if so given is to be confirmed in writing as soon as is reasonably practicable.

Commencement Information

I5S. 5 in force at 1.9.2006 by S.S.I. 2006/251, art. 3

6[F7Express authorisation: adult]S

(1)An adult may authorise the removal and use of a part of the adult's body after the adult's death for one or more of the purposes referred to in section 3(1) [F8(an “express authorisation”)].

[F9(1A)An express authorisation must—

(a)if it is for transplantation, be—

(i)in writing, or

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

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

F10(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F11(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F11(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F11(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F12(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Commencement Information

I6S. 6 in force at 1.9.2006 by S.S.I. 2006/251, art. 3

[F136AWithdrawal of express authorisation: adultS

(1)An express authorisation may be withdrawn by the adult—

(a)in writing, or

(b)if the express authorisation was given 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 an express authorisation by an adult of removal and use of a part of the adult's body for a purpose referred to in section 3(1), and

(b)the adult makes an opt-out declaration as respects removal and use of the part for that purpose.

(3)The express authorisation—

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

(b)otherwise remains in force.

(4)Subsection (5) applies if—

(a)there is in force at the relevant time an express authorisation by an adult of removal and use of a part of the adult'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 adult's most recent view was that the adult was unwilling for the part to be removed and used for that purpose, 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 removed and used for that purpose.

(5)The express authorisation—

(a)is treated as withdrawn by the adult 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 6D(1)(a),

(ii)section 6E(1)(a)(i),

(iii)section 6F(1)(a)(i),

(iv)section 6H(1)(a)(i),

(v)section 16F(1)(d),

(vi)section 16H(2)(a)(i),

(vii)section 16H(3)(a).]

Textual Amendments

[F146BOpt-out declaration: adultS

(1)An adult may make a declaration that the adult does not authorise the removal and use of a part of the adult's body after the adult's death for one or more of the purposes referred to in section 3(1) (an “opt-out declaration”).

(2)If there is in force an opt-out declaration by an adult as respects removal and use of a part of the adult's body for a purpose referred to in section 3(1), the part must not be removed and used for that purpose.

(3)An opt-out declaration 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.

Textual Amendments

6CWithdrawal of opt-out declaration: adultS

(1)An opt-out declaration may be withdrawn by the adult—

(a)in writing, or

(b)if the opt-out 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 an opt-out declaration by an adult as respects removal and use of a part of the adult's body for a purpose referred to in section 3(1), and

(b)the adult gives an express authorisation of removal and use of the part for that purpose.

(3)The opt-out declaration—

(a)is treated as withdrawn by the adult 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 an opt-out declaration by an adult as respects removal and use of a part of the adult'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 adult's most recent view was that the adult was willing for the part to be removed and used for that purpose, or

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

(5)The opt-out declaration—

(a)is treated as withdrawn by the adult 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 6D(1)(b),

(ii)section 6E(1)(a)(ii),

(iii)section 6F(1)(a)(ii),

(iv)section 6G(2)(a),

(v)section 6H(1)(a)(ii) and (iii),

(vi)section 16H(2)(a)(ii),

(vii)section 16H(3)(b).

(6)The adult is treated as having given an express authorisation by virtue of section 6(1) of removal and use of the part for that purpose.

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

(a)section 6D(1)(a),

(b)section 6E(1)(a)(i),

(c)section 6F(1)(a)(i),

(d)section 6H(1)(a)(i),

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

(f)section 16H(2)(a)(i),

(g)section 16H(3)(a).]

Textual Amendments

[F156DDeemed authorisation for transplantation: adultS

(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.]

Textual Amendments

F15S. 6D inserted (11.10.2019 for specified purposes, 26.3.2021 in so far as not already in force) by Human Tissue (Authorisation) (Scotland) Act 2019 (asp 11), ss. 7(2), 29(2); S.S.I. 2019/305, reg. 2(b); S.S.I. 2021/108, reg. 2

[F166ENon-resident adult: authorisation for transplantation by nearest relativeS

(1)The nearest relative of a non-resident adult may authorise the removal and use of a part of the adult's body after the adult's death for transplantation where—

(a)there is in force at the relevant time—

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

(ii)no opt-out declaration by the adult as respects removal and use of the part for transplantation,

(b)the relative has no actual knowledge that—

(i)the adult's most recent view was that the adult was unwilling for the part to be removed and 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 removed and used for transplantation, and

(c)the relative, having had regard to any evidence referred to in section 16H(6)(a) and (b), is satisfied that—

(i)the adult was not unwilling for the part to be removed and used for transplantation, and

(ii)if the adult were capable of making a decision about removal and use of the part, the adult would not be unwilling in the circumstances for the part to be removed and used for transplantation.

(2)For the purposes of subsection (1)(b) and (c), the mere fact that there is in force no express authorisation by the adult of removal and use of any part of the adult's body for transplantation is not to be regarded as unwillingness by the adult.

(3)An authorisation by virtue of subsection (1) must be—

(a)in writing and signed, or

(b)given orally to a health worker.

(4)An authorisation by virtue of subsection (1) may not be withdrawn.]

Textual Amendments

[F176FAdult incapable of understanding deemed authorisation: authorisation for transplantation by nearest relativeS

(1)The nearest relative of an adult who is incapable of understanding the nature and consequences of deemed authorisation may authorise the removal and use of a part of the adult's body after the adult's death for transplantation where—

(a)there is in force at the relevant time—

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

(ii)no opt-out declaration by the adult as respects removal and use of the part for transplantation,

(b)the relative has no actual knowledge that—

(i)the adult's most recent view was that the adult was unwilling for the part to be removed and 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 removed and used for transplantation, and

(c)the relative, having had regard to any evidence referred to in section 16H(6)(a) and (b), is satisfied that—

(i)the adult was not unwilling for the part to be removed and used for transplantation, and

(ii)if the adult were capable of making a decision about removal and use of the part, the adult would not be unwilling in the circumstances for the part to be removed and used for transplantation.

(2)For the purposes of subsection (1)(b) and (c), the mere fact that there is in force no express authorisation by the adult of removal and use of any part of the adult's body for transplantation is not to be regarded as unwillingness by the adult.

(3)Before giving an authorisation by virtue of subsection (1), the nearest relative must have regard to the adult's past wishes and feelings so far as reasonably ascertainable.

(4)An authorisation by virtue of subsection (1) must be—

(a)in writing and signed, or

(b)given orally to a health worker.

(5)An authorisation by virtue of subsection (1) may not be withdrawn.]

Textual Amendments

[F186GExcepted body parts: authorisation for transplantation by nearest relativeS

(1)This section applies where 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 by virtue of section 6D(1).

(2)The nearest relative of the adult may authorise the removal and use of a part of the adult's body that is an excepted body part after the adult's death for transplantation where—

(a)there is in force at the relevant time no opt-out declaration by the adult as respects removal and use of the part for transplantation,

(b)the relative has no actual knowledge that—

(i)the adult's most recent view was that the adult was unwilling for the part to be removed and 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 removed and used for transplantation, and

(c)the relative, having had regard to any evidence referred to in section 16H(6)(a) and (b), is satisfied that—

(i)the adult was not unwilling for the part to be removed and used for transplantation, and

(ii)if the adult were capable of making a decision about removal and use of the part, the adult would not be unwilling in the circumstances for the part to be removed and used for transplantation.

(3)For the purposes of subsection (2)(b) and (c), the mere fact that there is in force no express authorisation by the adult of removal and use of any part of the adult's body for transplantation is not to be regarded as unwillingness by the adult.

(4)An authorisation by virtue of subsection (2) must be—

(a)in writing and signed, or

(b)given orally to a health worker.

(5)An authorisation by virtue of subsection (2) may not be withdrawn.]

Textual Amendments

[F196HAuthorisation for purpose other than transplantation by nearest relativeS

(1)The nearest relative of an adult may authorise the removal and use of a part of the adult's body after the adult's death for one or more of the purposes referred to in paragraphs (b) to (d) of section 3(1) where—

(a)there is in force at the relevant time—

(i)no express authorisation by the adult of removal and use of any part for the purpose in question,

(ii)no opt-out declaration by the adult as respects removal and use of the part for the purpose in question, and

(iii)no opt-out declaration by the adult as respects removal and use of the part for transplantation,

(b)the relative has no actual knowledge that—

(i)the adult's most recent view was that the adult was unwilling for the part to be removed and used for the purpose in question, 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 removed and used for the purpose in question, and

(c)the relative, having had regard to any evidence referred to in section 16H(6)(a) and (b), is satisfied that—

(i)the adult was not unwilling for the part to be removed and used for the purpose in question, and

(ii)if the adult were capable of making a decision about removal and use of the part, the adult would not be unwilling in the circumstances for the part to be removed and used for the purpose in question.

(2)For the purposes of subsection (1)(b) and (c), the mere fact that there is in force no express authorisation by the adult of removal and use of any part of the adult's body for the purpose in question is not to be regarded as unwillingness by the adult.

(3)Before giving an authorisation by virtue of subsection (1) on behalf of an adult who is incapable of understanding the nature and consequences of deemed authorisation, the nearest relative must have regard to the adult's past wishes and feelings so far as reasonably ascertainable.

(4)An authorisation by virtue of subsection (1) must be—

(a)in writing and signed, or

(b)given orally to a health worker.

(5)An authorisation by virtue of subsection (1) may be withdrawn by the relative.

(6)A withdrawal by virtue of subsection (5) must be—

(a)in writing and signed, or

(b)given orally to a health worker.]

Textual Amendments

[F206IReview of section 1(1)(d) and (e) and sections 6(1A), 6B and 6DS

(1)The Scottish Ministers must, as soon as practicable after the end of the 5 year period—

(a)carry out a review of—

(i)the Scottish Ministers' duty under section 1(1)(d) and (e), and

(ii)the operation of sections 6(1A), 6B and 6D,

(b)set out the conclusions of the review in a report, and

(c)publish the report.

(2)The report must in particular set out—

(a)the objectives intended to be achieved by section 6D,

(b)an assessment of the extent to which those objectives have been achieved, and

(c)an assessment of—

(i)the support in relation to donation for transplantation provided to relatives of persons who have authorised, or who have been deemed to have authorised, the removal of a part of the person's body for transplantation (both before and after transplantation), and

(ii)whether further support should be provided.

(3)In subsection (1), “the 5 year period” means the period of 5 years beginning with the day on which sections 5 to 7 of the Human Tissue (Authorisation) (Scotland) Act 2019 come fully into force.]

Textual Amendments

F217Authorisation by adult's nearest relativeS

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

8Authorisation: child 12 years of age or overS

(1)A child who is 12 years of age or over may 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).

[F22(1A)An authorisation by virtue of subsection (1) must—

(a)if it is for transplantation, be—

(i)in writing, or

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

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

(1B)If there is in force immediately before a child becomes an adult an authorisation by virtue of subsection (1) by the child, the authorisation is to be treated as an express authorisation by virtue of section 6(1) once the child becomes an adult.]

F23(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F24(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F24(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F24(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F24(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F25(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Commencement Information

I7S. 8 in force at 1.9.2006 by S.S.I. 2006/251, art. 3

[F268AWithdrawal of authorisation: child 12 years of age or overS

(1)An authorisation by virtue of section 8(1) may be withdrawn by the child—

(a)in writing, or

(b)if the authorisation was given 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 an authorisation by virtue of section 8(1) by a child of removal and use of a part of the child's body for a purpose referred to in section 3(1), and

(b)the child makes a declaration by virtue of section 8B(1) as respects removal and use of the part for that purpose.

(3)The authorisation by virtue of section 8(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)Subsection (5) applies if—

(a)there is in force at the relevant time an authorisation by virtue of section 8(1) by a child of 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 unwilling 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 unwilling in the circumstances for the part to be removed and used for that purpose.

(5)The authorisation by virtue of section 8(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)(i),

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

(iii)section 16I(2)(a)(i).]

Textual Amendments

[F278BOpt-out declaration: child 12 years of age or overS

(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.

Textual Amendments

8CWithdrawal of opt-out declaration: child 12 years of age or overS

(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).]

Textual Amendments

[F288DAuthorisation by person with parental rights and responsibilities: child 12 years of age or overS

(1)A person who, at the relevant time, has parental rights and parental responsibilities in relation to a child who is 12 years of age or over may 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) where—

(a)there is in force at the relevant time—

(i)no authorisation by virtue of section 8(1) by the child of removal and use of any part for the purpose in question,

(ii)no declaration by virtue of section 8B(1) by the child as respects removal and use of the part for the purpose in question, and

(iii)if transplantation is not the purpose in question, no declaration by virtue of section 8B(1) by the child as respects removal and use of the part for transplantation,

(b)the person has no actual knowledge that—

(i)the child's most recent view was that the child was unwilling for the part to be removed and used for the purpose in question, or

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

(c)the person, having had regard to any evidence referred to in section 16I(4)(a) and (b), is satisfied that—

(i)the child was not unwilling for the part to be removed and used for the purpose in question, and

(ii)if the child were capable of making a decision about removal and use of the part, the child would not be unwilling in the circumstances for the part to be removed and used for the purpose in question.

(2)For the purposes of subsection (1)(b) and (c), the mere fact that there is in force no authorisation by virtue of section 8(1) by the child of removal and use of any part of the child's body for the purpose in question is not to be regarded as unwillingness by the child.

(3)An authorisation by virtue of subsection (1) must be—

(a)in writing and signed, or

(b)given orally to a health worker.

(4)Subject to subsection (6), an authorisation by virtue of subsection (1) may be withdrawn by the person who gave the authorisation.

(5)A withdrawal by virtue of subsection (4) must be—

(a)in writing and signed, or

(b)given orally to a health worker.

(6)To the extent that an authorisation by virtue of subsection (1) is for the purposes of transplantation, it may not be withdrawn.]

Textual Amendments

F299Authorisation as respects child who dies 12 years of age or over by person with parental rights and responsibilitiesS

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

10[F30Authorisation by person with parental rights and responsibilities: child under 12 years of age]S

[F31(A1)Subsection (1) applies in relation to a child who is under 12 years of age at the relevant time.]

(1)A person who [F32at the relevant time has] parental rights and parental responsibilities in relation to the child F33... may authorise removal and use of a part of the body of the child for one or more of the purposes referred to in section 3(1) [F34where—

(a)the person has no actual knowledge that—

(i)the child's most recent view was that the child was unwilling for the part to be removed and used for the purpose in question, or

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

(b)the person, having had regard to any evidence referred to in section 16I(4)(a) and (b), is satisfied that—

(i)the child was not unwilling for the part to be removed and used for the purpose in question, and

(ii)the child would not be unwilling in the circumstances for the part to be removed and used for the purpose in question].

[F35(1A)An authorisation by virtue of subsection (1) must be—

(a)in writing and signed, or

(b)given orally to a health worker.

(1B)Subject to subsection (3), an authorisation by virtue of subsection (1) may be withdrawn by the person.

(1C)A withdrawal by virtue of subsection (1B) must be—

(a)in writing and signed, or

(b)given orally to a health worker.]

F36(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)To the extent that authorisation by virtue of subsection (1) is for the purposes of transplantation, it may not be withdrawn.

Textual Amendments

Commencement Information

I8S. 10 in force at 1.9.2006 by S.S.I. 2006/251, art. 3

[F3710AAuthorisation by other persons: childrenS

(1)A person mentioned in subsection (4) in relation to a child who is 12 years of age or over at the relevant time may 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) where—

(a)each person with parental rights and parental responsibilities who would otherwise be entitled to authorise removal and use of a part of the child's body by virtue of section 8D(1) has died or become incapable of so authorising,

(b)there is in force at the relevant time—

(i)no authorisation by virtue of section 8(1) by the child of removal and use of any part for the purpose in question,

(ii)no declaration by virtue of section 8B(1) by the child as respects removal and use of the part for the purpose in question, and

(iii)if transplantation is not the purpose in question, no declaration by virtue of section 8B(1) by the child as respects removal and use of the part for transplantation,

(c)the person has no actual knowledge that—

(i)the child's most recent view was that the child was unwilling for the part to be removed and used for the purpose in question, or

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

(d)the person, having had regard to any evidence referred to in section 16I(4)(a) and (b), is satisfied that—

(i)the child was not unwilling for the part to be removed and used for the purpose in question, and

(ii)the child would not be unwilling in the circumstances for the part to be removed and used for the purpose in question.

(2)For the purposes of subsection (1)(c) and (d), the mere fact that there is in force no authorisation by virtue of section 8(1) by the child of removal and use of any part of the child's body for the purpose in question is not to be regarded as unwillingness by the child.

(3)A person mentioned in subsection (4) in relation to a child who is under 12 years of age at the relevant time may 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) where—

(a)each person with parental rights and parental responsibilities who would otherwise be entitled to authorise removal and use of a part of the child's body by virtue of section 10(1) has died or become incapable of so authorising,

(b)the person has no actual knowledge that—

(i)the child's most recent view was that the child was unwilling for the part to be removed and used for the purpose in question, or

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

(c)the person, having had regard to any evidence referred to in section 16I(4)(a) and (b), is satisfied that—

(i)the child was not unwilling for the part to be removed and used for the purpose in question, and

(ii)the child would not be unwilling in the circumstances for the part to be removed and used for the purpose in question.

(4)A person who is, at the relevant time—

(a)a person who has (or has recently had) a significant involvement in the upbringing of the child,

(b)the child's brother or sister,

(c)the child's grandparent,

(d)the child's uncle or aunt,

(e)the child's cousin,

(f)the child's niece or nephew,

(g)a friend of longstanding of the child.

(5)An authorisation by virtue of subsection (1) or (3) must be—

(a)in writing and signed, or

(b)given orally to a health worker.

(6)Subject to subsection (8), an authorisation by virtue of subsection (1) or (3) may be withdrawn by the person.

(7)A withdrawal by virtue of subsection (6) must be—

(a)in writing and signed, or

(b)given orally to a health worker.

(8)To the extent that an authorisation by virtue of subsection (1) or (3) is for the purposes of transplantation, it may not be withdrawn.

(9)Relationships in different paragraphs of subsection (4) rank in the order of those paragraphs and for the purposes of that subsection a relationship of the half-blood is to be treated as a relationship of the whole blood.

(10)Where more than one person falls within a paragraph in subsection (4), each such person ranks equally for the purpose of the paragraph, and authorisation by virtue of the paragraph in question may be given by any one of the persons falling within the paragraph.

(11)For the purposes of subsections (1) and (3), a person's relationship with the child is to be left out of account if—

(a)the person, at the relevant time, was under 16 years of age,

(b)the person does not wish or is unable to make a decision on the issue of authorisation, or

(c)it is not reasonably practicable to communicate with the person in the time available.]

Textual Amendments

[F3810BLocal authority with parental rights and responsibilities in relation to child: consultationS

(1)Subsection (2) applies if—

(a)there is in force at the relevant time—

(i)an authorisation by virtue of section 8(1) by a child of removal and use of a part of the child's body for a purpose referred to in section 3(1), or

(ii)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 local authority with parental rights and parental responsibilities in relation to the child is consulted about the child's most recent views by a health worker by virtue of section 16I(2)(b).

(2)The local authority must, in so far as it is reasonably practicable to do so, ascertain the child's most recent views by consulting—

(a)the child's parents, and

(b)such other persons as the local authority considers appropriate.

(3)Subsections (4) and (5) apply if a local authority with parental rights and parental responsibilities in relation to a child is deciding whether to give authorisation by virtue of section 8D or 10 as respects the child.

(4)The local authority must, in so far as it is reasonably practicable to do so, ascertain the views of—

(a)the child,

(b)the child's parents, and

(c)any other person whose views the local authority considers to be relevant.

(5)The local authority must have regard to the views of—

(a)the child,

(b)the child's parents, and

(c)any other person whose views the local authority considers to be relevant.]

Textual Amendments

[F3910CPower to make provision about decisionsS

(1)The Scottish Ministers may by regulations make provision about the manner in which, or to whom—

(a)an express authorisation by virtue of section 6(1) may be given,

(b)an opt-out declaration by virtue of section 6B(1) may be made,

(c)an authorisation by virtue of section 8(1) may be given,

(d)a declaration by virtue of section 8B(1) may be made,

(e)an authorisation by virtue of section 16F(1) may be given.

(2)Regulations under subsection (1) may modify this Act.]

Textual Amendments

[F4010DWithdrawal by person who is blind or unable to writeS

(1)This section applies where a person who is blind or unable to write decides to withdraw—

(a)an authorisation by virtue of—

(i)section 6A(1),

(ii)section 6H(5),

(iii)section 8A(1),

(iv)section 8D(4),

(v)section 10(1B),

(vi)section 10A(6),

(b)a declaration by virtue of—

(i)section 6C(1),

(ii)section 8C(1).

(2)The withdrawal may be—

(a)in writing by another person, and

(b)signed by an adult (a “signatory”).

(3)A withdrawal that is signed by a signatory must—

(a)be witnessed by one witness, and

(b)contain a statement made in accordance with subsection (4).

(4)The statement must—

(a)state that the person, in the presence of the signatory and the witness, expressed the intention to withdraw the authorisation or, as the case may be, the declaration,

(b)state that the person requested the signatory to sign the withdrawal,

(c)be signed by the signatory and the witness in the presence of—

(i)each other, and

(ii)the person.]

Textual Amendments

11Removal of part of body of deceased person: further requirementsS

(1)The removal of a part of the body of a deceased person for any of the purposes referred to in section 3(1) may be carried out only by—

(a)a registered medical practitioner; or

(b)a person [F41(or description of person)] authorised to do so in accordance with regulations made by the Scottish Ministers.

(2)Regulations under subsection (1)(b) may in particular provide for a registered medical practitioner to authorise the carrying out of the removal by a person [F42(or description of person)] who is not such a practitioner.

(3)The removal of part of the body of a deceased person may not be—

(a)carried out for any of the purposes referred to in section 3(1) unless the person who proposes to carry it out, before doing so, complies with the requirements specified in subsection (4);

F43(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)The requirements are that the person F44... must be satisfied—

(a)[F45if the person is a registered medical practitioner,] either—

(i)by personal examination of the body, that life is extinct; or

(ii)that another registered medical practitioner, by such personal examination, is so satisfied;

[F46(ab)if the person is not a registered medical practitioner, that a registered medical practitioner, by personal examination of the body, is satisfied that life is extinct,]

(b)that, if the consent of the procurator fiscal to the carrying out of the removal is required by section 5(1), the consent has been given; and

(c)that the removal [F47and use for the purpose in question] is authorised in accordance with section 6, [F486D, 6E, 6F, 6G, 6H, 8, 8D, 10 or, as the case may be, 10A].

[F49(4A)For the purposes of subsection (4)(c), the person who proposes to carry out the removal is entitled to be satisfied that the removal and use for the purpose in question is authorised in accordance with the section in question if subsections (4B) and (4C) apply.

(4B)This subsection applies if the person who proposes to carry out the removal considers there to be an appropriate record that—

(a)there is in force an authorisation by virtue of section 6, 6D, 6E, 6F, 6G, 6H, 8, 8D, 10 or, as the case may be, 10A as respects—

(i)the deceased person, and

(ii)the removal and use of the part for the purpose in question,

(b)the authorisation was given in accordance with the section in question,

(c)there is in force—

(i)in the case of a deceased adult, no opt-out declaration by the adult as respects removal and use of the part for the purpose in question,

(ii)in the case of a deceased child, no declaration by virtue of section 8B(1) by the child as respects removal and use of the part for the purpose in question,

(d)in the case of a deceased adult who is deemed to have authorised the removal and use of a part of the adult's body for transplantation by virtue of section 6D, the deceased adult was not—

(i)a non-resident adult, or

(ii)an adult incapable of understanding the nature and consequences of deemed authorisation,

(e)a health worker has carried out inquiries—

(i)in the case of a deceased adult, in accordance with section 16H(2), and

(ii)in the case of a deceased child, in accordance with section 16I(2).

(4C)This subsection applies if the person who proposes to carry out the removal has no reason to believe that—

(a)there is in force no authorisation by virtue of section 6, 6D, 6E, 6F, 6G, 6H, 8, 8D, 10 or, as the case may be, 10A as respects—

(i)the deceased person, or

(ii)the removal and use of the part for the purpose in question,

(b)the authorisation was not given in accordance with the section in question,

(c)in the case of an authorisation given by a person other than the deceased person, the person who gave the authorisation was not entitled to do so,

(d)the deceased person would be unwilling in the circumstances for the part to be removed and used for the purpose in question.]

F50(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Commencement Information

I9S. 11(1)(a)(3)-(5) in force at 1.9.2006 by S.S.I. 2006/251, art. 3

I10S. 11(1)(b)(2) in force at 1.9.2006 in so far as not already in force by S.S.I. 2006/251, arts. 2, 3, Sch.

12Removal of tissue sample to determine viability of transplantationS

If it appears to a person removing, in accordance with authorisation by virtue of section [F516, 6D, 6E, 6F, 6G, 8, 8D, 10 or, as the case may be, 10A], any part of the body of a deceased person for transplantation that it is necessary or expedient to examine tissue sample removed from the part or any other part of the body to determine the viability of the transplantation (including in particular the safety of the transplant for the person who is to receive it), the person carrying out the removal may remove and secure the examination of such tissue sample from the part or the body as the person considers necessary or expedient for that purpose.

Textual Amendments

Commencement Information

I11S. 12 in force at 1.9.2006 by S.S.I. 2006/251, art. 3

13Preservation for transplantationS

(1)Where part of the body of a deceased person lying in premises to which this section applies is or may be suitable for use for transplantation, the managers of the premises may—

(a)take steps for the purpose of preserving the part for use for transplantation;

(b)retain the body for that purpose,

but may not move the part or body to other premises.

(2)Authority under subsection (1)(a) extends only to—

(a)the taking of the minimum steps necessary for the purpose mentioned in that paragraph;

(b)the use of the least invasive procedure.

(3)Authority under subsection (1)—

(a)extends to any person authorised to act under the authority by the managers of the premises in question;

(b)ceases to apply once it has been established that authorisation for removal of the part for transplantation has not been, and will not be, given.

(4)The premises to which this section applies are—

(a)a health service hospital;

(b)premises in which a registered independent health care service is provided.

(5)In this section—

Textual Amendments

F53Words in s. 13(5) substituted (1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), Sch. 17 para. 34; S.S.I. 2010/321, art. 3, Sch.; S.S.I. 2011/122, art. 2, Sch.

Commencement Information

I12S. 13 in force at 1.9.2006 by S.S.I. 2006/251, art. 3

14Part of body removed before day on which section 3 comes into forceS

A part—

(a)removed—

(i)from the body of a deceased person before the day on which section 3 comes into force for the purposes of transplantation, research, education, training or audit;

(ii)other than during an examination having the characteristics of a post-mortem examination (whether or not carried out for the purposes of the functions, or under the authority, of the procurator fiscal) or an anatomical examination (within the meaning of section 1(1) of the Anatomy Act 1984 (c. 14); and

(b)held immediately before that day for use for any such purpose,

may be retained and used for any such purpose.

Commencement Information

I13S. 14 in force at 1.9.2006 by S.S.I. 2006/251, art. 3

15Existing request by adult not acted on before commencement of sections 3 and 6S

(1)Where, immediately before the coming into force of sections 3 and 6—

(a)there is in force a request by an adult that a part of the adult's body be used after the adult's death for transplantation either—

(i)in writing; or

(ii)[F55given orally] (whether or not [F56given] during the adult's last illness and whether or not [F56given] in the presence of any witnesses); and

(b)the request has not been acted on,

the request is to be treated for the purposes of this Part as if it were [F57an express authorisation by the adult] (in writing or, as the case may be, [F55given orally]).

(2)In subsection (1), “writing” includes, in relation to the reference there to a request by an adult which is in force immediately before the coming into force of sections 3 and 6, representation of a character in visible form.

Textual Amendments

Commencement Information

I14S. 15 in force at 1.9.2006 by S.S.I. 2006/251, art. 3

16Offences: removal or use of part of body of deceased person for transplantation, research etc.S

(1)A person commits an offence if the person removes, after the day on which section 3 comes into force, a part of the body of a deceased person for any of the purposes referred to in section 3(1) or uses after that day any part so removed for any such purpose and—

(a)the removal or, as the case may be, the use for the purpose in question is not authorised in accordance with section 6, [F586D, 6E, 6F, 6G, 6H, 8, 8D, 10 or, as the case may be, 10A]; or

(b)any of the requirements in section 11(1) or (4)(a) is not satisfied as respects the part.

F59(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)A person guilty of an offence under subsection (1) is liable—

(a)on summary conviction, to—

(i)imprisonment for a term not exceeding 12 months;

(ii)a fine not exceeding the statutory maximum; or

(iii)both;

(b)on conviction on indictment, to—

(i)imprisonment for a term not exceeding 3 years;

(ii)a fine; or

(iii)both.

Textual Amendments

Commencement Information

I15S. 16 in force at 1.9.2006 by S.S.I. 2006/251, art. 3

[F60Pre-death procedures relating to transplantationS

Textual Amendments

F60S. 16A-16G and cross-heading inserted (11.10.2019 for specified purposes, 26.3.2021 in so far as not already in force) by Human Tissue (Authorisation) (Scotland) Act 2019 (asp 11), ss. 23(1), 29(2); S.S.I. 2019/305, reg. 2(c); S.S.I. 2021/108, reg. 2

16AMeaning of “pre-death procedure”, “Type A procedure” and “Type B procedure”S

(1)In this Part, a “pre-death procedure” means a medical procedure—

(a)which is carried out on a person for the purpose of increasing the likelihood of successful transplantation of a part of the person's body after the person's death, and

(b)which is not for the primary purpose of safeguarding or promoting the physical or mental health of the person.

(2)In this Part, a pre-death procedure is—

(a)a “Type A procedure” if it is a pre-death procedure or category of pre-death procedure specified in regulations made by the Scottish Ministers under section 16B(1),

(b))a “Type B procedure” if it is a pre-death procedure or category of pre-death procedure specified in regulations made by the Scottish Ministers under section 16C(1).

16BType A proceduresS

(1)The Scottish Ministers may by regulations specify a pre-death procedure or category of pre-death procedure as a Type A procedure for the purposes of sections 16D to 16F.

(2)Regulations under subsection (1) may make different provision for different procedures or categories of procedure and in particular may specify that a pre-death procedure or category of pre-death procedure is a Type A procedure only where that procedure is carried out in a particular way.

(3)Regulations under subsection (1) may specify a pre-death procedure (or category of pre-death procedure) as a Type A procedure only if the Scottish Ministers consider that it is appropriate that the carrying out of the procedure or, as the case may be, the category of procedure should be in accordance with section 16E.

(4)Before laying draft regulations under subsection (1) before the Scottish Parliament, the Scottish Ministers must consult such persons as they consider appropriate.

16CType B proceduresS

(1)The Scottish Ministers may by regulations specify a pre-death procedure or category of pre-death procedure (other than one specified in regulations under section 16B(1)) as a Type B procedure for the purposes of section 16D and 16E.

(2)Regulations under subsection (1)—

(a)may also make provision about—

(i)the circumstances in which Type B procedures may be carried out,

(ii)the way in which the carrying out of Type B procedures may be authorised,

(iii)the process for authorisation of Type B procedures, and

(iv)the carrying out of Type B procedures, and

(b)may make different provision for different procedures or categories of procedure.

(3)Regulations under subsection (1) may specify a pre-death procedure (or category of pre-death procedure) as a Type B procedure only if the Scottish Ministers consider that it is appropriate that the procedure or, as the case may be, the category of procedure should be subject to provision mentioned in subsection (2)(a)(i) to (iv).

(4)Before laying draft regulations under subsection (1) before the Scottish Parliament, the Scottish Ministers must consult such persons as they consider appropriate.

16DRestrictions on carrying out of pre-death proceduresS

(1)A pre-death procedure may be carried out only if it is a Type A procedure or Type B procedure.

(2)A Type A procedure may be carried out only in accordance with section 16E.

(3)A Type B procedure may be carried out only in accordance with—

(a)section 16E, and

(b)any provision made in regulations under section 16C(1) in relation to that procedure (or category of procedure).

16ECarrying out of Type A and Type B proceduresS

(1)A Type A procedure or Type B procedure may be carried out only if—

(a)the health worker who is to carry out the procedure or who has authorised a person to carry out the procedure considers that the requirements of subsection (2) are met,

(b)that health worker—

(i)has no actual knowledge that the person was unwilling for the procedure to be carried out,

(ii)has had regard to the person's past wishes and feelings so far as reasonably ascertainable (having had regard to any evidence referred to in section 16H(6)(c) or 16I(4)(c)), and

(iii)is satisfied that if the person were capable of making a decision about authorisation of the procedure, the person would not be unwilling for the procedure to be carried out,

(c)the use of a part of the person's body for transplantation is authorised by virtue of section 6, 6D, 6E, 6F, 6G, 8, 9, 10 or, as the case may be, 10A,

(d)in the case of a Type A procedure, the carrying out of the procedure is authorised under section 16F, and

(e)in the case of a Type B procedure, the carrying out of the procedure is authorised in accordance with any provision made under section 16C(1) in relation to that procedure (or category of procedure).

(2)The requirements mentioned in subsection (1)(a) are met if—

(a)in the view of the health worker primarily responsible for the person's medical treatment, the person is likely to die imminently (including as a result of the withdrawal of life-sustaining treatment),

(b)where the person is receiving life-sustaining treatment, the decision to withdraw that treatment has been taken by that health worker,

(c)the carrying out of the procedure is necessary (see subsection (3)),

(d)the carrying out of the procedure is not likely to cause more than minimal discomfort to the person, and

(e)the carrying out of the procedure is not likely to harm the person.

(3)For the purposes of subsection (2)(c), the carrying out of a procedure is necessary if either of the following apply—

(a)it is necessary to carry it out for the purpose of ascertaining whether a part of the person's body is suitable for transplantation,

(b)it is necessary to carry it out for the purpose of increasing the likelihood of successful transplantation of a part of the person's body.

16FAuthorisation of Type A proceduresS

(1)For the purposes of section 16E(1)(d), the carrying out of a Type A procedure is authorised in relation to a person if—

(a)the person has expressly authorised the carrying out of the procedure,

(b)in the case of an adult who, at the relevant time, has not expressly authorised the carrying out of any procedure, if the adult's nearest relative is, at the relevant time, entitled to authorise the removal and use of a part of the adult's body by virtue of section 6E or 6F and the adult's nearest relative authorises the carrying out of the procedure,

(c)in the case of a child who, at the relevant time, has not expressly authorised the carrying out of any procedure—

(i)if a person who has parental rights and parental responsibilities in relation to the child is, at the relevant time, entitled to authorise the removal and use of a part of the child's body by virtue of section 8D or 10 and that person authorises the carrying out of the procedure,

(ii)if a person is, at the relevant time, entitled to authorise the removal and use of a part of the child's body by virtue of section 10A and that person authorises the carrying out of the procedure,

(d)in the case of an adult who, at the relevant time, has not expressly authorised the carrying out of any procedure, there is in force an express authorisation by the adult of removal and use of a part of the adult's body for transplantation,

(e)in the case of a child who, at the relevant time, has not expressly authorised the carrying out of any procedure, there is in force an authorisation by virtue of section 8 by the child of removal and use of a part of the child's body for transplantation, or

(f)in the case of an adult, the adult is deemed by virtue of section 6D to have authorised the removal and use of a part of the adult's body for transplantation.

(2)For the purposes of subsection (1)(b), the nearest relative of an adult may not give authorisation—

(a)if the relative has actual knowledge that the adult was unwilling for the procedure to be carried out, or

(b)unless the relative—

(i)has had regard to the adult's past wishes and feelings so far as reasonably ascertainable (having had regard to any evidence referred to in section 16H(6)(c)), and

(ii)is satisfied that if the adult were capable of making a decision about authorisation of the procedure, the adult would not be unwilling for the procedure to be carried out.

(3)For the purposes of subsection (1)(c), a person may not give authorisation—

(a)if the person has actual knowledge that the child was unwilling for the procedure to be carried out, or

(b)unless the person—

(i)has had regard to the child's past wishes and feelings so far as reasonably ascertainable (having had regard to any evidence referred to in section 16I(4)(c)), and

(ii)is satisfied that if the child were capable of making a decision about authorisation of the procedure, the child would not be unwilling for the procedure to be carried out.

(4)Where a person has expressly authorised the carrying out of one or more Type A procedures under subsection (1)(a), subsection (1)(f) does not authorise the carrying out of a Type A procedure not mentioned in that authorisation.

(5)An authorisation under subsection (1)(a), (b) or (c) must be—

(a)in writing, or

(b)given orally to a health worker.

16GAuthorisation of Type A procedures: transitory provisionS

(1)Until section 6D comes into force, section 16E(1)(b)(ii) applies as if the words “(having had regard to any evidence referred to in section 16H(6)(c) or 16I(4)(c))” were omitted.

(2)Until section 6D comes into force, section 16F applies as if—

(a)in subsection (1)—

(i)for paragraph (b) there were substituted—

“(b)in the case of an adult, a person who is entitled to authorise the removal and use of a part of the adult's body by virtue of section 7(1), (2) or (3) authorises the carrying out of the Type A procedure,”,

(ii)for paragraph (c) there were substituted—

“(c)in the case of a child, a person who is entitled to authorise the removal and use of a part of the child's body by virtue of section 9(1), (2) or (3) or 10(1) authorises the carrying out of the Type A procedure,”,

(iii)paragraphs (d) to (f) were omitted,

(b)in subsection (2)(b)(i), the words “(having had regard to any evidence referred to in section 16H(6)(c))” were omitted,

(c)in subsection (3)(b)(i), the words “(having had regard to any evidence referred to in section 16I(4)(c))” were omitted,

(d)subsection (4) were omitted.]

[F6116HDuty to inquire: adultS

(1)A health worker must act in accordance with subsection (2) before the earlier of—

(a)the carrying out of a pre-death procedure in relation to an adult, or

(b)the removal of part of the body of a deceased adult for any of the purposes referred to in section 3(1).

(2)The health worker must—

(a)take reasonable steps to inquire into whether there is in force—

(i)an express authorisation by the adult,

(ii)an opt-out declaration by the adult,

(b)if subsection (3) applies, inquire into whether the adult—

(i)is a non-resident adult (within the meaning given by section 6D(2)(a)),

(ii)is an adult who is incapable of understanding the nature and consequences of deemed authorisation (within the meaning given by section 6D(3)),

(c)in the case of an adult who is incapable of understanding the nature and consequences of deemed authorisation, inquire into the adult's past wishes and feelings so far as reasonably ascertainable, and

(d)in any case inquire, by consulting (so far as is reasonably practicable) the persons referred to in subsection (5), into the adult's most recent views in relation to—

(i)the carrying out of pre-death procedures in relation to the adult, and

(ii)the removal and use of a part of the adult's body for a purpose referred to in section 3(1).

(3)This subsection applies in relation to an adult if 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.

(4)When acting in accordance with subsection (2)(b)(ii), the health worker must consult (so far as is reasonably practicable) any person who has indicated a wish to provide evidence that the adult is an adult who is incapable of understanding the nature and consequences of deemed authorisation.

(5)The persons referred to in subsection (2)(d) are—

(a)the nearest relative of the adult,

(b)any person who has indicated to a health worker a wish to provide evidence mentioned in subsection (6), and

(c)such other persons as the health worker considers appropriate.

(6)The evidence referred to in subsection (5)(b) is evidence—

(a)that the adult's most recent view was that the adult was willing or, as the case may be, unwilling for a part of the adult's body to be removed and used for a purpose referred to in section 3(1),

(b)that if the adult were capable of making a decision about removal and use of a part, the adult would be willing or, as the case may be, unwilling in the circumstances for part of the adult's body to be removed and used for a purpose referred to in section 3(1),

(c)about the adult's views in relation to the carrying out of a pre-death procedure in relation to the adult.

Textual Amendments

16IDuty to inquire: childS

(1)A health worker must act in accordance with subsection (2) before the earlier of—

(a)the carrying out of a pre-death procedure in relation to a child, or

(b)the removal of part of the body of a deceased child for any of the purposes referred to in section 3(1).

(2)The health worker must—

(a)take reasonable steps to inquire into whether there is in force—

(i)an authorisation by virtue of section 8(1) by the child,

(ii)a declaration by virtue of section 8B(1) by the child, and

(b)inquire, by consulting (so far as is reasonably practicable) the persons referred to in subsection (3), into the child's most recent views in relation to—

(i)the carrying out of pre-death procedures in relation to the child, and

(ii)the removal and use of a part of the child's body for a purpose referred to in section 3(1).

(3)The persons referred to in subsection (2)(b) are—

(a)a person who, at the relevant time, has parental rights and parental responsibilities in relation to the child,

(b)if a person is entitled to authorise removal and use of a part of the child's body by virtue of section 10A, that person,

(c)any person who has indicated to a health worker a wish to provide evidence mentioned in subsection (4), and

(d)such other persons as the health worker considers appropriate.

(4)The evidence referred to in subsection (3)(c) is evidence—

(a)that the child's most recent view was that the child was willing or, as the case may be, unwilling for a part of the child's body to be removed and used for a purpose referred to in section 3(1),

(b)that if the child were capable of making a decision about removal and use of a part, the child would be willing or, as the case may be, unwilling in the circumstances for a part of the child's body to be removed and used for a purpose referred to in section 3(1),

(c)about the child's views in relation to the carrying out of a pre-death procedure in relation to the child.]

Textual Amendments

[F6216JMeaning of “health worker”S

(1)In sections 1 to 16K, “health worker” means—

(a)a registered medical practitioner,

(b)a registered nurse,

(c)a person (or person within a description) in so far as that person is (or persons of that description are) authorised by a person listed in subsection (2) to exercise the functions of a health worker under sections 6A to 16I.

(2)The persons are—

(a)a registered medical practitioner,

(b)a registered nurse,

(c)a Health Board,

(d)a Special Health Board,

(e)the Common Services Agency for the Scottish Health Service.

(3)An authorisation under subsection (1)(c) may, in particular—

(a)authorise a person (or description of person) to exercise some or all of the functions of a health worker under sections 6A to 16I,

(b)authorise a person (or description of person) to exercise functions in relation to particular cases or classes of case,

(c)authorise different persons (or descriptions of person) to exercise different functions.

(4)An authorisation under subsection (1)(c) may be given only if the person listed in subsection (2) considers that the person (or the description of person) has the appropriate skills, qualifications or experience to carry out the functions in respect of which the authorisation is given.

(5)An authorisation under subsection (1)(c) may be revoked—

(a)in the case of an authorisation given to a description of person by a person other than a registered medical practitioner or a registered nurse, by the person who gave that authorisation, and

(b)in any other case, by any person listed in subsection (2).

(6)The Scottish Ministers may give directions (of a general or specific nature) to persons listed in subsection (2) in relation to authorisations under subsection (1)(c).

(7)A person listed in subsection (2) must comply with any direction given to the person under subsection (6) when authorising a person (or description of person) under subsection (1)(c).

(8)The Scottish Ministers may by regulations—

(a)modify the list in subsection (1),

(b)modify the list in subsection (2),

so as to add to, amend or remove any entry on the list.]

Textual Amendments

[F6316KInterpretation and meaning of “relevant time”S

(1)In sections 1 to 16J and this section—

(2)For the purposes of sections 1 to 16J, this section and section 50, “relevant time” means—

(a)in relation to a living person, when—

(i)in the view of the health worker primarily responsible for the person's medical treatment, the person is likely to die imminently (including as a result of the withdrawal of life-sustaining treatment),

(ii)where the person is receiving life-sustaining treatment, the decision to withdraw that treatment has been taken by that health worker, and

(iii)in the case of a person who is 12 years of age or over, that health worker is of the view that the person is incapable by reason of ill health of making a decision about the removal and use of a part of the person's body for a purpose referred to in section 3(1),

(b)in relation to a deceased person, immediately before the person's death.]

Textual Amendments

Restrictions on transplants involving live donorS

17Restrictions on transplants involving live donorS

(1)Subject to subsections (3) to (5) and (8), a person commits an offence—

(a)if—

(i)the person removes an organ, part of an organ, or any tissue from the body of a living child intending that it be used for transplantation; and

(ii)when the person removes the organ, part or tissue, the person knows, or might reasonably be expected to know, that the other person from whose body the person removes it is a living child;

(b)if—

(i)the person removes an organ or part of an organ from the body of a living adult intending that it be used for transplantation; and

(ii)when the person removes the organ or part, the person knows, or might reasonably be expected to know, that the adult from whose body the person removes it is alive; or

(c)if—

(i)the person removes any tissue from the body of a living adult with incapacity intending that it be used for transplantation; and

(ii)when the person removes the tissue the person knows, or might reasonably be expected to know, that the adult from whose body the person removes it is alive and an adult with incapacity.

(2)Subject to subsections (3) to (5) and (8), a person commits an offence—

(a)if—

(i)the person uses for transplantation an organ, part of an organ or any tissue which has come from the body of a living child; and

(ii)when the person does so, the person knows, or might reasonably be expected to know, that it has come from the body of a living child;

(b)if—

(i)the person uses for transplantation an organ or part of an organ which has come from the body of a living adult; and

(ii)when the person does so, the person knows, or might reasonably be expected to know, that it has come from the body of a living adult; or

(c)if—

(i)the person uses for transplantation any tissue which has come from the body of a living adult with incapacity; and

(ii)when the person does so, the person knows, or might reasonably be expected to know, that it has come from the body of a living adult with incapacity.

(3)The Scottish Ministers may by regulations provide that subsection (1)(b) or (2)(b) does not apply in a case where—

(a)the Ministers are satisfied that—

(i)no reward has been or is to be given in contravention of section 20; and

(ii)such other conditions as may be specified in the regulations are satisfied; and

(b)such other requirements as may be specified in the regulations are complied with.

(4)The Scottish Ministers may by regulations provide that subsection (1)(a) or (c) or (2)(a) or (c) does not apply in a case where—

(a)a person—

(i)removes regenerative tissue; or

(ii)uses such tissue;

(b)the Ministers are satisfied that—

(i)no reward has been or is to be given in contravention of section 20;

(ii)such other conditions, as may be specified in the regulations are satisfied; and

(c)such other requirements as may be specified in the regulations are complied with.

(5)The Scottish Ministers may by regulations provide that subsection (1)(a) or (b) or (2)(a) or (b) does not apply in a case where—

(a)a person—

(i)removes an organ or part of an organ as described in subsection (6); or

(ii)uses such an organ or part so removed;

(b)the Ministers are satisfied that—

(i)no reward has been or is to be given in contravention of section 20;

(ii)such other conditions, as may be specified in the regulations are satisfied; and

(c)such other requirements as may be specified in the regulations are complied with.

(6)The organ or part of an organ is one that—

(a)during a domino organ transplant operation, is necessarily removed from—

(i)a child; or

(ii)an adult with incapacity; and

(b)is in turn intended to be used for transplantation in respect of another living person.

(7)Regulations under subsection (3), (4) or (5) must include provision as to appeals against decisions made in relation to matters which fall to be decided under the regulations.

(8)Where under—

(a)subsection (3) an exception from subsection (1)(b) or (2)(b) is in force, a person does not commit an offence under subsection (1)(b) or, as the case may be, (2)(b) if the person reasonably believes that the exception applies;

(b)subsection (4) an exception from subsection (1)(a) or (c) or (2)(a) or (c) is in force, a person does not commit an offence under subsection (1)(a) or (c) or (2)(a) or (c), as the case may be, if the person reasonably believes that the exception applies;

(c)subsection (5) an exception from subsection (1)(a) or (b) or (2)(a) or (b) is in force, a person does not commit an offence under subsection (1)(a) or (b) or (2)(a) or (b), as the case may be, if the person reasonably believes that the exception applies.

(9)A person guilty of an offence under this section is liable on summary conviction to—

(a)imprisonment for a term not exceeding 12 months;

(b)a fine not exceeding level 5 on the standard scale; or

(c)both.

(10)In this section—

Modifications etc. (not altering text)

C1S. 17(1)(a)(b)(2)(a)(2)(b) excluded (1.9.2006 with application in accordance with art. 3(1)) by Human Tissue (Scotland) Act 2006 (Human Organ Transplants Act 1989 Transitional and Savings Provisions) Order 2006 (S.S.I. 2006/420), arts. 1(1), 3(2)

C3S. 17(1)(a)(b)(2)(a)(2)(b) excluded (1.9.2006 with application in accordance with art. 2(1)) by Human Tissue (Scotland) Act 2006 (Human Organ Transplants Act 1989 Transitional and Savings Provisions) Order 2006 (S.S.I. 2006/420), arts. 1(1), 2(5)

Commencement Information

I16S. 17(1) (2)(6)-(10) in force at 1.9.2006 by S.S.I. 2006/251, art. 3

I17S. 17(3)-(5) in force at 12.5.2006 only for the purpose of enabling regulations to be made to come into force on or after 1st September 2006; and 1.9.2006 in so far as not already in force by S.S.I. 2006/251, arts. 2, 3, Sch.

18Meaning of adult with incapacity for purposes of section 17(1)(c) and (2)(c)S

(1)This section applies to an adult—

(a)who, in the opinion of the Scottish Ministers, is an adult who is incapable in relation to a decision about the removal from the adult of regenerative tissue for transplantation; and

(b)in respect of whom a certificate has been issued by the Ministers in accordance with subsection (2) that they are of this opinion.

(2)A certificate for the purposes of subsection (1) is to be in a form prescribed in regulations by the Scottish Ministers and is to specify the period during which the certificate is in force, being a period which—

(a)the Scottish Ministers consider appropriate to the condition or circumstances of the adult; but

(b)does not exceed one year from the date of the certificate.

(3)In this section, “incapable” has the same meaning as it has in section 1(6) of the Adults with Incapacity (Scotland) Act 2000.

Commencement Information

I18S. 18(1)(3) in force at 1.9.2006 by S.S.I. 2006/251, art. 3

I19S. 18(2) in force at 1.9.2006 in so far as not already in force by S.S.I. 2006/251, arts. 2, 3, Sch.

Records, information etc.: removal and use of parts of human bodies for transplantation etc.S

19Records, information etc.: removal and use of parts of human bodies for transplantation etc.S

(1)The Scottish Ministers may by regulations make provision requiring such persons (or descriptions of persons) as may be specified in the regulations to—

(a)maintain in accordance with the regulations records in connection with the removal of parts from human bodies for transplantation and the use or retention, for any other purpose referred to in section 3(1), of parts removed from bodies of deceased or living persons;

(b)provide to the Scottish Ministers, or to such authority as may be specified in the regulations, such information as may be so specified with respect to the removal of parts from human bodies for transplantation, the use or retention for that purpose of parts removed or the use or retention for any other purpose referred to in section 3(1) of parts removed from bodies of deceased or living persons.

(2)The Scottish Ministers must keep a record of information provided to them in pursuance of regulations made under subsection (1).

(3)Any such authority as may be specified in such regulations must keep a record of information provided to it in pursuance of the regulations.

(4)A person commits an offence if—

(a)the person fails without reasonable excuse to comply with regulations under subsection (1); or

(b)in purported compliance with such regulations, the person knowingly or recklessly supplies information which is false or misleading in a material respect.

(5)A person guilty of an offence under—

(a)subsection (4)(a) is liable on summary conviction to a fine not exceeding level 3 on the standard scale;

(b)subsection (4)(b) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Commencement Information

I20S. 19(1) in force at 1.9.2006 in so far as not already in force by S.S.I. 2006/251, arts. 2, 3, Sch.

I21S. 19(2)-(5) in force at 1.9.2006 by S.S.I. 2006/251, art. 3

TraffickingS

20Prohibition of commercial dealings in parts of a human body for transplantationS

(1)A person commits an offence if the person—

(a)gives or receives a reward for the supply of, or for an offer to supply, any part of a human body for transplantation;

(b)seeks to find a person willing to supply any part of a human body for transplantation for reward;

(c)offers to supply any part of a human body for transplantation for reward;

(d)initiates or negotiates an arrangement involving the giving of a reward for the supply of, or for an offer to supply, any part of a human body for transplantation;

(e)takes part in the management or control of a body corporate or a group of persons whose activities consist of or include the initiation or negotiation of such arrangements.

(2)Without prejudice to subsection (1)(b) and (c), a person commits an offence if the person causes to be published or distributed, or knowingly publishes or distributes, an advertisement—

(a)inviting persons to supply, or offering to supply, any part of a human body for transplantation for reward; or

(b)indicating that the advertiser is willing to initiate or negotiate an arrangement referred to in subsection (1)(d).

(3)A person who engages in an activity to which subsection (1) or (2) applies does not commit an offence under that subsection if the person is designated by the Scottish Ministers for the purposes of this subsection as a person who may lawfully engage in the activity.

(4)A person guilty of an offence under subsection (1) is liable—

(a)on summary conviction, to—

(i)imprisonment for a term not exceeding 12 months;

(ii)a fine not exceeding the statutory maximum; or

(iii)both;

(b)on conviction on indictment, to—

(i)imprisonment for a term not exceeding 3 years;

(ii)a fine; or

(iii)both.

(5)A person guilty of an offence under subsection (2) is liable on summary conviction to—

(a)imprisonment for a term not exceeding 12 months;

(b)a fine not exceeding level 5 on the standard scale; or

(c)both.

(6)In this section—

Commencement Information

I22S. 20 in force at 1.9.2006 by S.S.I. 2006/251, art. 3

[F6420AOffences under section 20 committed outside UKS

(1)If—

(a)a person who is habitually resident in Scotland, or who is a UK national and not habitually resident in Northern Ireland, does an act outside the United Kingdom, and

(b)the act, if done in Scotland, would constitute an offence under section 20(1), and

(c)the part of the human body to which the act relates consists of or includes a human organ,

the person is guilty in Scotland of that offence.

(2)In this section “United Kingdom national” means an individual who is—

(a)a British citizen, a British overseas territories citizen, a British National (Overseas) or a British Overseas citizen,

(b)a person who under the British Nationality Act 1981 is a British subject, or

(c)a British protected person within the meaning of that Act.

(3)Where a person outside the United Kingdom commits an offence under section 20(1) the person may be prosecuted, tried and punished for the offence—

(a)in a sheriff court district in which the person is apprehended or in custody, or

(b)in a sheriff court district determined by the Lord Advocate,

as if the offence had been committed in that district.

(4)Where subsection (3) applies, the offence is, for all purposes incidental to or consequential on the trial and punishment, deemed to have been committed in that district.

(5)In this section “sheriff court district” is to be construed in accordance with section 307(1) of the Criminal Procedure (Scotland) Act 1995 (interpretation).]

Textual Amendments

Summary proceedings for offences under section 17, 19(4) or 20(2)S

21Summary proceedings for offences under section 17, 19(4) or 20(2)S

(1)Summary proceedings in pursuance of section 17, 19(4) or 20(2) may be commenced at any time within the period of 6 months from the date on which evidence sufficient in the opinion of the Lord Advocate to justify the proceedings comes to the Lord Advocate's knowledge.

(2)Subsection (3) of section 136 of the Criminal Procedure (Scotland) Act 1995 (c. 46) (date of commencement of summary proceedings) has effect for the purposes of subsection (1) as it has effect for the purposes of that section.

(3)For the purposes of subsection (1), a certificate of the Lord Advocate as to the date on which the evidence in question came to the Lord Advocate's knowledge is conclusive evidence of the date on which it did so.

Commencement Information

I23S. 21 in force at 1.9.2006 by S.S.I. 2006/251, art. 3

Authorisation for transplantation to have priorityS

22Authorisation by virtue of Part 1 for transplantation to have priorityS

(1)If there is in force [F65at the relevant time[F66an express authorisation by an adult]] of removal and use of any part of the adult's body for transplantation, the authorisation takes priority as respects the part over—

(a)any authorisation by the adult by virtue of section 29(1), or any request by the adult by virtue of section 4(1) of the Anatomy Act 1984 (c. 14) (“the 1984 Act”), which is also in force at that time;

(b)any right of any other person to give authorisation as respects the deceased adult by virtue of section 30(1) or (2).

[F67(1A)Where an adult is deemed to have authorised the removal and use of a part of the adult's body for transplantation by virtue of section 6D(1), the authorisation takes priority as respects the part over—

(a)any authorisation by the adult by virtue of section 29(1), or any request by the adult by virtue of section 4(1) of the 1984 Act, which is in force at the relevant time,

(b)any right of any other person to give authorisation as respects the deceased adult by virtue of section 30(1) or (2).]

(2)If there is in force [F68at the relevant time authorisation by a] child by virtue of section 8(1) of removal and use of a part of the child's body for transplantation, the authorisation takes priority as respects the part over—

(a)any authorisation by the child by virtue of section 31(1), or any request by the child by virtue of section 4(1) of the 1984 Act, which is also in force at that time;

(b)any right of any other person to give authorisation as respects the deceased child by virtue of section 32(1) or (2).

F69(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)Any right of any other person to authorise, by virtue of section [F708D, 10 or 10A] removal and use of a part of a F71... child's body for transplantation takes priority as respects the part over—

(a)any authorisation by the child by virtue of section 31(1), or any request by the child by virtue of section 4(1) of the 1984 Act, which is in force [F72at the relevant time];

(b)any right of another person to give authorisation as respects the deceased child by virtue of section 32(1) or (2).

Textual Amendments

Commencement Information

I24S. 22 in force at 1.9.2006 by S.S.I. 2006/251, art. 3

Part 2 SPost-mortem examinations

23Meaning of post-mortem examination for purposes of ActS

In this Act, “post-mortem examination” means examination of the body of a deceased person involving its dissection and the removal of organs, tissue sample, blood (or any material derived from blood) or other body fluid which is carried out for any or all of the following purposes—

(a)providing information about or confirming the cause of death;

(b)investigating the effect and efficacy of any medical or surgical intervention carried out on the person;

(c)obtaining information which may be relevant to the health of any other person (including a future person);

(d)audit, education, training or research.

Commencement Information

I25S. 23 in force at 1.9.2006 by S.S.I. 2006/251, art. 3

24Disapplication of sections 23 and 27 to 37 as respects procurator fiscalS

Sections 23 and 27 to 37 do not apply to anything done for the purposes of the functions or under the authority of the procurator fiscal.

Commencement Information

I26S. 24 in force at 1.9.2006 by S.S.I. 2006/251, art. 3

25Disapplication of sections 27 to 35 and 37: bodies of persons dead for at least 100 yearsS

Sections 27 to 35 and 37 do not apply as respects a post-mortem examination of a body of a deceased person if it is the body of a person who died before the day on which section 27 comes into force and at least 100 years have elapsed since the date of the person's death.

Commencement Information

I27S. 25 in force at 1.9.2006 by S.S.I. 2006/251, art. 3

26Consent by procurator fiscal to post-mortem examinationS

(1)Where a person knows, or has reason to believe, that an examination of the body of a deceased person is, or may be, required for the purposes of the functions of the procurator fiscal, the person may not, except with the consent of the procurator fiscal, carry out a post-mortem examination of the body.

(2)For the purposes of subsection (1), consent by the procurator fiscal may be given verbally and if so given is to be confirmed in writing as soon as is reasonably practicable.

Commencement Information

I28S. 26 in force at 1.9.2006 by S.S.I. 2006/251, art. 3

27Requirements for carrying out post-mortem examinationS

A post-mortem examination may be carried out only if—

(a)it is authorised in accordance with section 29, 30, 31, 32 or, as the case may be 33; and

(b)the requirements of section 35 are satisfied.

Commencement Information

I29S. 27 in force at 1.9.2006 by S.S.I. 2006/251, art. 3

28Removal during examination and retention of organs and other parts of a bodyS

(1)Subject to section 26 and subsection (2), any part of the body of a deceased person mentioned in subsection (5) may, by virtue of the authorisation for the post-mortem examination of the body, be—

(a)removed from the body during the post-mortem examination for the purposes of the examination;

(b)retained and used thereafter for any of those purposes.

(2)An organ may be—

(a)removed, for the purposes of audit, education, training or research, from the body of a deceased person during a post-mortem examination of the body only if the removal for the purpose in question;

(b)retained and used thereafter for any of those purposes only if the retention for the purpose in question,

is authorised in accordance with section 29, 30, 31, 32 or, as the case may be, 33.

(3)Any part of the body of a deceased person (other than an organ) which is removed from the body during the post-mortem examination by virtue of the authorisation referred to in subsection (1) forms part of the medical records of the deceased person.

(4)Where an organ is removed from the body of a deceased person during the post-mortem examination of the body (whether by virtue of the authorisation referred to in subsection (1) or (2)), samples—

(a)may, by virtue of the authorisation, be taken from the organ; and

(b)if taken, form part of the medical records of the deceased person.

(5)The parts of the body referred to in subsection (1) are—

(a)an organ;

(b)tissue sample;

(c)blood, or any material derived from blood;

(d)other body fluid.

(6)A part of the body of a deceased person which is not mentioned in subsection (5) may not be removed from the body during a post-mortem examination of the body.

Commencement Information

I30S. 28 in force at 1.9.2006 by S.S.I. 2006/251, art. 3

29Authorisation of post-mortem examination etc.: adultS

(1)An adult may authorise—

(a)a post-mortem examination of the adult's body after the adult's death;

(b)the removal from the body during the post-mortem examination of an organ for one or more of the purposes referred to in section 28(2)(a);

(c)the retention and use of an organ after the post-mortem examination for one or more of such purposes.

(2)Authorisation by virtue of subsection (1) must be either—

(a)in writing and signed by the adult; or

(b)expressed verbally in the presence of 2 witnesses.

(3)Authorisation by virtue of subsection (1) which is—

(a)in writing and signed may be withdrawn in writing signed by the adult;

(b)expressed verbally in the presence of 2 witnesses may be withdrawn—

(i)in writing signed by the adult; or

(ii)verbally by the adult in the presence of 2 witnesses.

(4)If the adult is blind or unable to write, withdrawal of authorisation by virtue of subsection (3)(a) may be signed by another adult (a signatory) on the adult's behalf and if it is so signed it must be witnessed by one witness.

(5)Withdrawal of authorisation which is signed by a signatory on behalf of an adult by virtue of subsection (4) must contain a statement signed by both the signatory and the witness in the presence of the adult and of each other that the adult, in the presence of them both, expressed the intention to withdraw the authorisation and requested the signatory to sign the withdrawal on behalf of the adult.

(6)Nothing in subsection (4) prevents an adult who is blind from withdrawing, in accordance with subsection (3)(a), any authorisation by virtue of subsection (1).

Commencement Information

I31S. 29 in force at 1.9.2006 by S.S.I. 2006/251, art. 3

30Authorisation of post-mortem examination etc. by adult's nominee or nearest relativeS

(1)An adult may nominate one or more persons to represent the adult after the adult's death as respects authorising in relation to the deceased adult one or more of the matters referred to in section 29(1).

(2)The nearest relative of a deceased adult may authorise one or more of the matters referred to in that section in relation to the deceased adult if there is in force immediately before the adult's death no authorisation by the adult by virtue of that section of any of the matters referred to in it and no nomination by the adult in accordance with subsection (1).

(3)Where an adult has nominated a person by virtue of subsection (1), the nomination is to be disregarded if—

(a)no one is able to give authorisation under it; or

(b)it is not reasonably practicable to communicate with the person in the time available,

and where the nomination falls under this subsection to be disregarded, subsection (2) applies as if there were in force immediately before the adult's death no such nomination by the adult.

(4)Authorisation by a person nominated by virtue of subsection (1) must be in writing signed by the person and witnessed by one witness (who must not be so nominated).

(5)Authorisation by virtue of subsection (2) must be in writing signed by the nearest relative and witnessed by one witness.

(6)Authorisation—

(a)by a person nominated by virtue of subsection (1);

(b)by virtue of subsection (2),

must state that the person giving the authorisation has no actual knowledge that the adult was unwilling for a post-mortem examination to be carried out and, where the authorisation is of an activity referred to in section 29(1)(b) or (c), for the activity in question to be carried out (for the purpose in question).

(7)Authorisation by a person nominated by virtue of subsection (1) may be withdrawn in writing signed by the person and witnessed by one witness (who must not be so nominated).

(8)Authorisation by virtue of subsection (2) may be withdrawn in writing signed by the person and witnessed by one witness.

Commencement Information

I32S. 30 in force at 1.9.2006 by S.S.I. 2006/251, art. 3

31Authorisation of post-mortem examination etc.: child 12 years of age or overS

(1)A child who is 12 years of age or over may authorise—

(a)a post-mortem examination of the deceased child's body after the child's death;

(b)the removal from the body during the post-mortem examination of an organ for one or more of the purposes referred to in section 28(2)(a);

(c)the retention and use of an organ after the post-mortem examination for one or more of such purposes.

(2)Authorisation by virtue of subsection (1)—

(a)must be in writing—

(i)signed by the child and witnessed by 2 witnesses; or

(ii)subject to subsections (3) and (4), if the child is blind or unable to write signed by an adult (a signatory) on the child's behalf and witnessed by one witness;

(b)may be withdrawn in writing—

(i)signed by the child; or

(ii)subject to subsections (3) and (4), if the child is blind or unable to write signed by an adult (a signatory) on the child's behalf and witnessed by one witness.

(3)Authorisation by virtue of subsection (1), or withdrawal of such authorisation, which is signed by a signatory on behalf of the child by virtue of subsection (2)(a)(ii) or (b)(ii) must contain a statement signed by both the signatory and the witness in the presence of the child and of each other that the child, in the presence of them both, expressed the intention to give the authorisation or, as the case may be, withdraw the authorisation and requested the signatory to sign the authorisation or, as the case may be, the withdrawal on behalf of the child.

(4)Authorisation by virtue of subsection (1) which is signed by a signatory on behalf of a child by virtue of subsection (2)(a)(ii) must contain or be accompanied by certification in writing signed by the signatory that, in the opinion of the signatory, the child understands the effect of the authorisation and is not acting under undue influence in giving it.

(5)Nothing in subsection (2)(a)(ii) or (b)(ii) prevents a child who is blind from signing an authorisation by virtue of subsection (1) in accordance with subsection (2)(a)(i) or a withdrawal of authorisation in accordance with subsection (2)(b)(i).

(6)Each witness to authorisation by a child by virtue of subsection (1) (whether it is signed by the child or by a signatory on behalf of the child), must at the time of witnessing certify (in writing signed by the witness) that, in the opinion of the witness, the child understands the effect of the authorisation and is not acting under undue influence in giving it.

Commencement Information

I33S. 31 in force at 1.9.2006 by S.S.I. 2006/251, art. 3

32Authorisation of post-mortem examination etc. as respects child 12 years of age or over by nominee or person with parental rights and parental responsibilitiesS

(1)A child who is 12 years of age or over may nominate one or more persons to represent the child after the child's death as respects authorising in relation to the deceased child one or more of the matters referred to in section 31(1).

(2)A person who immediately before the death of a child who died 12 years of age or over had parental rights and parental responsibilities in relation to the child (but who is not a local authority) may authorise one or more of the matters referred to in that section in relation to the deceased child if there is in force immediately before the death no authorisation by the child by virtue of that section of any of the matters referred to in it and no nomination by the child in accordance with subsection (1).

(3)Where a child who died 12 years of age or over has nominated a person by virtue of subsection (1), the nomination is to be disregarded if—

(a)no one is able to give authorisation under it; or

(b)it is not reasonably practicable to communicate with the person in the time available,

and where the nomination falls under this subsection to be disregarded, subsection (2) applies as if there were in force immediately before the child's death no such nomination by the child.

(4)Authorisation by a person nominated by virtue of subsection (1) must be in writing signed by the person and witnessed by 2 witnesses (who must not be so nominated).

(5)Authorisation by virtue of subsection (2) must be in writing signed by the person who gives the authorisation in accordance with that subsection and witnessed by 2 witnesses.

(6)Authorisation—

(a)by a person nominated by virtue of subsection (1);

(b)by virtue of subsection (2),

must state that the person giving the authorisation has no actual knowledge that the child was unwilling for a post-mortem examination to be carried out and, where the authorisation is of an activity referred to in section 31(1)(b) or (c), for the activity in question to be carried out (for the purpose in question).

(7)Authorisation by a person nominated in accordance with subsection (1) may be withdrawn in writing signed by the person and witnessed by 2 witnesses (who must not be so nominated).

(8)Authorisation by virtue of subsection (2) may be withdrawn in writing signed by the person who gave the authorisation in accordance with that subsection and witnessed by 2 witnesses.

Commencement Information

I34S. 32 in force at 1.9.2006 by S.S.I. 2006/251, art. 3

33Authorisation of post-mortem examination etc. as respects child under 12 years of ageS

(1)A person who immediately before the death of a child who died under 12 years of age had parental rights and parental responsibilities in relation to the child (but who is not a local authority) may authorise one or more of the matters referred to in section 31(1) as respects the deceased child.

(2)Authorisation by virtue of subsection (1)—

(a)must be in writing signed by the person who gives the authorisation in accordance with that subsection and witnessed by 2 witnesses;

(b)may be withdrawn in writing so signed and witnessed by one witness.

Commencement Information

I35S. 33 in force at 1.9.2006 by S.S.I. 2006/251, art. 3

34Nomination of person under section 30(1) or 32(1): additional provisionS

(1)Nomination by virtue of—

(a)section 30(1)—

(i)must be in writing signed by the adult;

(ii)may be withdrawn in writing signed by the adult,

in the presence of one witness (who is not so nominated);

(b)section 32(1)—

(i)must be in writing signed by the child;

(ii)may be withdrawn in writing signed by the child,

in the presence of one witness (who is not so nominated).

(2)A witness to nomination by an adult by virtue of section 30(1) or by a child by virtue of section 32(1) must at the time of witnessing certify (in writing signed by the witness) that, in the opinion of the witness, the adult or, as the case may be, the child understands the effect of the nomination and is not acting under undue influence in giving it.

(3)A person nominated by virtue of section 30(1) or 32(1)—

(a)may not act under the nomination if not an adult;

(b)may renounce the nomination.

(4)Where more than one person is so nominated, authorisation by virtue of the nomination may be given by any one of them or by all of them acting jointly.

Commencement Information

I36S. 34 in force at 1.9.2006 by S.S.I. 2006/251, art. 3

35Post-mortem examination and removal and retention of organs: further requirementsS

(1)An activity mentioned in subsection (2) may not be carried out unless the person who proposes to carry it out is satisfied before doing so—

(a)that the activity is authorised in accordance with section 29, 30, 31, 32 or, as the case may be, 33; and

(b)as respects the carrying out of a post-mortem examination that, if the consent of the procurator fiscal to carrying it out is required by section 26(1), the consent has been given.

(2)The activities are—

(a)a post-mortem examination;

(b)removal of an organ during the examination for a purpose referred to in section 28(2)(a);

(c)retention and use of an organ for such a purpose after removal.

(3)For the purposes of subsection (1)(a), the person is entitled to be satisfied that the activity is authorised in accordance with the section in question if—

(a)the person has no reason to believe either that the authorisation was not so given or that it was subsequently withdrawn;

(b)in the case of authorisation by virtue of section 29(1) which is in writing, it bears—

(i)to be as respects the deceased adult;

(ii)to authorise the activity in question (and, where the activity in question is that referred to in subsection (2)(b) or (c), to authorise the purpose in question);

(iii)to be by, and signed by, the adult;

(c)in the case of authorisation by virtue of section 29(1) which is expressed verbally, there is what the person considers to be an appropriate record of the authorisation and the authorisation bears from the record—

(i)to be as respects the deceased adult;

(ii)to authorise the activity in question (and, where the activity in question is that referred to in subsection (2)(b) or (c), to authorise the purpose in question);

(iii)to have been expressed verbally by the adult in the presence of 2 witnesses, each of whom was an adult when witnessing and was present when the other witnessed the authorisation;

(d)in the case of authorisation by a nominee by virtue of section 30(1) or authorisation by virtue of section 30(2), it bears—

(i)to be in writing;

(ii)to be as respects the deceased adult;

(iii)to authorise the activity in question (and, where the activity in question is that referred to in subsection (2)(b) or (c), to authorise the purpose in question);

(iv)to be by a nominee or the nearest relative of the deceased adult and signed by the nominee or, as the case may be, the nearest relative;

(v)to state that the person who gave the authorisation had when authorising no actual knowledge that the adult was unwilling for a post-mortem examination to be carried out and, where the authorisation bears to be of an activity referred to in subsection (2)(b) or (c), for the activity in question to be carried out (for the purpose in question);

(vi)to be witnessed, and signed, by one witness who was an adult when witnessing;

(vii)if by a nominee by virtue of section 30(1), to state that the nominee was an adult when giving the authorisation;

(viii)to be in the form prescribed for the time being under section 52(a) for such authorisation;

(e)in the case of authorisation by virtue of section 31(1) which is not signed by a person on behalf of the child, it bears—

(i)to be in writing;

(ii)to be as respects the deceased child;

(iii)to authorise the activity in question (and, where the activity in question is that referred to in subsection (2)(b) or (c), to authorise the purpose in question);

(iv)to be by, and signed by, the child while 12 years of age or over;

(v)to be witnessed, and signed, by 2 witnesses each of whom was an adult when witnessing and was present when the other witnessed the authorisation;

(vi)to contain or be accompanied by certification in writing by, and signed by, each witness that in the opinion of the witness the child understood the effect of the authorisation and was not acting under undue influence in giving it;

(f)in the case of authorisation by virtue of section 31(1) which is signed by a person on behalf of the child, it bears—

(i)to be in writing;

(ii)to be as respects the deceased child;

(iii)to authorise the activity in question (and, where the activity in question is that referred to in subsection (2)(b) or (c), to authorise the purpose in question);

(iv)to be on behalf of the child while 12 years of age or over;

(v)to be signed by an adult on behalf of the child because the child was blind or unable to write at the time of giving the authorisation;

(vi)to be witnessed by one witness who was an adult when witnessing and was present when the other adult signing the authorisation signed it;

(vii)to contain a statement signed by both the signatory and the witness in the presence of the child and of each other that the child, in the presence of them both, expressed the intention to give the authorisation and requested the signatory to sign it on the child's behalf;

(viii)to contain or be accompanied by certification in writing signed by the person signing the authorisation on behalf of the child that, in the opinion of the person, the child understood the effect of the authorisation and was not acting under undue influence in giving it and by certification in writing signed by the witness that, in the opinion of the witness, the child so understood and was not so acting;

(g)in the case of authorisation by a nominee by virtue of section 32(1) or authorisation by virtue of section 32(2), it bears—

(i)to be in writing;

(ii)to be as respects the deceased child (who died 12 years of age or over);

(iii)to authorise the activity in question (and, where the activity in question is that referred to in subsection (2)(b) or (c), to authorise the purpose in question);

(iv)to be by a nominee of the deceased child or a person who, immediately before the child's death, had parental rights and parental responsibilities in relation to the child (but who is not a local authority) and to be signed by the nominee or, as the case may be, the person;

(v)to state that the person who gave the authorisation had no actual knowledge that the child was unwilling for a post-mortem examination to be carried out and, where the authorisation bears to be of an activity referred to in subsection (2)(b) or (c), for the activity in question to be carried out (for the purpose in question);

(vi)to be witnessed, and signed, by 2 witnesses each of whom was an adult when witnessing and was present when the other witnessed the authorisation;

(vii)if by a nominee by virtue of section 32(1), to state that the nominee was an adult when giving the authorisation;

(viii)to be in the form prescribed for the time being under section 52(a) for such authorisation;

(h)in the case of authorisation by virtue of section 33(1), it bears—

(i)to be in writing;

(ii)to be as respects the deceased child (who died under 12 years of age);

(iii)to authorise the activity in question (and, where the activity in question is that referred to in subsection (2)(b) or (c), to authorise the purpose in question);

(iv)to be by a person who, immediately before the child's death, had parental rights and parental responsibilities in relation to the child (but who is not a local authority) and to be signed by the person;

(v)to be witnessed, and signed, by 2 witnesses each of whom was an adult when witnessing and was present when the other witnessed the authorisation;

(vi)to be in the form prescribed for the time being under section 52(a) for such authorisation.

Commencement Information

I37S. 35 in force at 1.9.2006 by S.S.I. 2006/251, art. 3

36Organ or tissue sample removed before day on which section 27 comes into forceS

An organ or tissue sample—

(a)removed from the body of a deceased person during an examination having the characteristics of a post-mortem examination carried out before the day on which section 27 comes into force; and

(b)held immediately before that day for use for any purpose referred to in paragraphs (a) to (d) of section 23,

may be retained and used for any such purpose.

Commencement Information

I38S. 36 in force at 1.9.2006 by S.S.I. 2006/251, art. 3

37Offences: post-mortem examinationsS

(1)A person commits an offence if—

(a)the person carries out any of the following activities—

(i)a post-mortem examination;

(ii)the removal, for a purpose referred to in section 28(2)(a), of an organ during a post-mortem examination;

(iii)the retention, for such a purpose, of an organ removed during a post-mortem examination; and

(b)the activity is not authorised in accordance with section 29, 30, 31, 32 or, as the case may be, 33.

(2)Where a person is charged with an offence under subsection (1) it is a defence for the person to show that, at the time of carrying out the activity, the person reasonably believed that the activity was authorised in accordance with section 29, 30, 31, 32 or, as the case may be, 33.

(3)A person guilty of an offence under subsection (1) is liable—

(a)on summary conviction, to—

(i)imprisonment for a term not exceeding 12 months;

(ii)a fine not exceeding the statutory maximum; or

(iii)both;

(b)on conviction on indictment, to—

(i)imprisonment for a term not exceeding 3 years;

(ii)a fine; or

(iii)both.

Commencement Information

I39S. 37 in force at 1.9.2006 by S.S.I. 2006/251, art. 3

Part 3 STissue sample or organs no longer required for procurator fiscal purposes

38Tissue sample becoming part of medical records of deceased personS

(1)This section applies to tissue sample removed from the body of a deceased person (or from an organ which was removed from the body) during an examination of the body carried out on or after the day on which this section comes into force for the purposes of the functions, or under the authority, of the procurator fiscal.

(2)If the manager of the establishment in which an examination referred to in subsection (1) was carried out receives notice in writing from the procurator fiscal that tissue sample specified in the notice and removed from the body of a deceased person so specified is no longer required for the purposes of the functions of the procurator fiscal, on the date of the notice the tissue sample becomes, and accordingly falls to be retained as, part of the medical records of the deceased person.

Commencement Information

I40S. 38 in force at 1.9.2006 by S.S.I. 2006/251, art. 3

39Use of tissue sample which has become part of deceased's medical recordsS

Where, by virtue of notice under section 38(2), tissue sample becomes part of the medical records of a deceased person, it may—

(a)be used for the purposes of—

(i)providing information about or confirming the cause of death;

(ii)investigating the effect and efficacy of any medical or surgical intervention carried out on the person;

(iii)obtaining information which may be relevant to the health of any other person (including a future person);

(iv)audit;

(b)be used for the purposes of education, training or research, if use for the purpose in question is authorised in accordance with section 42, 43, 44, 45 or, as the case may be, 46.

Commencement Information

I41S. 39 in force at 1.9.2006 by S.S.I. 2006/251, art. 3

40Use of organ no longer required for procurator fiscal purposesS

(1)This section applies to an organ removed from the body of a deceased person during an examination of the body carried out on or after the day on which this section comes into force for the purposes of the functions, or under the authority, of the procurator fiscal.

(2)The organ may be retained and used for the purposes of education, training or research if—

(a)the manager of the establishment in which an examination referred to in subsection (1) was carried out receives notice in writing from the procurator fiscal that an organ specified in the notice and removed from the body of a deceased person so specified is no longer required for the purposes of the functions of the procurator fiscal;

(b)the subsequent use of the organ for the purpose in question is authorised in accordance with section 42, 43, 44, 45 or, as the case may be, 46; and

(c)where the purpose in question is research, the research is approved in writing by such person (or persons), or group (or groups) of persons, as the Scottish Ministers may specify by order under this subsection.

Commencement Information

I42S. 40(1)(2)(a)(2)(b) in force at 1.9.2006 by S.S.I. 2006/251, art. 3

I43S. 40(2)(c) in force at 1.9.2006 in so far as not already in force by S.S.I. 2006/251, arts. 2, 3, Sch.

41Notice under section 38(2) or 40(2)(a): further provisionS

(1)Notice under section 38(2) or 40(2)(a)—

(a)may be—

(i)delivered;

(ii)posted;

(iii)transmitted by electronic means;

(b)if—

(i)posted is presumed to be received on the 3rd day after the day of posting;

(ii)transmitted by electronic means is presumed to be received on the day of transmission.

(2)For the purposes of sections 38(2) and 40(2)(a), the manager of an establishment which is—

(a)a health service hospital, is the Health Board responsible for the administration of the hospital;

(b)a university or any other establishment, is the person or holder of such post as the Scottish Ministers may specify by order under this subsection.

(3)In subsection (2)(a)—

Commencement Information

I44S. 41(1)(2)(a)(3) in force at 1.9.2006 by S.S.I. 2006/251, art. 3

I45S. 41(2)(b) in force at 1.9.2006 in so far as not already in force by S.S.I. 2006/251, arts. 2, 3, Sch.

42Authorisation of use etc. after examination: adultS

(1)An adult may authorise—

(a)use of tissue sample removed from the adult's body after the adult's death during an examination of the body for the purposes of the functions, or under the authority, of the procurator fiscal;

(b)retention and use of an organ removed from the adult's body after the adult's death during such an examination,

for one or more of the purposes referred to in section 39(b).

(2)Authorisation by virtue of subsection (1)—

(a)must be in writing and—

(i)signed by the adult; or

(ii)subject to subsection (4), if the adult is blind or unable to write signed by another adult (a signatory) on the adult's behalf and witnessed by one witness;

(b)may be withdrawn in writing—

(i)signed by the adult; or

(ii)subject to subsection (4), if the adult is blind or unable to write signed by another adult (a signatory) on the adult's behalf and witnessed by one witness.

(3)Authorisation by virtue of subsection (1), or withdrawal of such authorisation, which is signed by a signatory on behalf of the adult by virtue of subsection (2)(a)(ii) or (b)(ii) must contain a statement signed by both the signatory and the witness in the presence of the adult and of each other that the adult, in the presence of them both, expressed the intention to give the authorisation or, as the case may be, withdraw the authorisation and requested the signatory to sign the authorisation or, as the case may be, the withdrawal on behalf of the adult.

(4)Nothing in subsection (2)(a)(ii) or (b)(ii) prevents an adult who is blind from signing an authorisation by virtue of subsection (1) in accordance with subsection (2)(a)(i) or a withdrawal of authorisation in accordance with subsection (2)(b)(i).

Commencement Information

I46S. 42 in force at 1.9.2006 by S.S.I. 2006/251, art. 3

43Authorisation of use etc. after examination: adult's nearest relativeS

(1)The nearest relative of a deceased adult may authorise one or more of the matters referred to in section 42(1) in relation to the deceased adult if there is in force immediately before the adult's death no authorisation by the adult by virtue of that section of any of the matters referred to in it.

(2)Authorisation by virtue of subsection (1) must—

(a)be in writing signed by the nearest relative and witnessed by one witness;

(b)state that the person giving the authorisation has no actual knowledge that the adult was unwilling for the matter in question to be authorised (for the purpose in question).

(3)Authorisation by virtue of subsection (1) may be withdrawn in writing signed by the nearest relative and witnessed by one witness.

Commencement Information

I47S. 43 in force at 1.9.2006 by S.S.I. 2006/251, art. 3

44Authorisation of use etc. after examination: child 12 years of age or overS

(1)A child who is 12 years of age or over may authorise—

(a)use of tissue sample removed from the child's body after the child's death during an examination of the body for the purposes of the functions, or under the authority, of the procurator fiscal;

(b)retention and use of an organ removed from the child's body after the child's death during such an examination,

for one or more of the purposes referred to in section 39(b).

(2)Authorisation by virtue of subsection (1)—

(a)must be in writing—

(i)signed by the child and witnessed by 2 witnesses; or

(ii)subject to subsections (3) and (4), if the child is blind or unable to write signed by an adult (a signatory) on the child's behalf and witnessed by one witness;

(b)may be withdrawn in writing—

(i)signed by the child; or

(ii)subject to subsections (3) and (4), if the child is blind or unable to write signed by an adult (a signatory) on the child's behalf and witnessed by one witness.

(3)Authorisation by virtue of subsection (1), or withdrawal of such authorisation, which is signed by a signatory on behalf of the child by virtue of subsection (2)(a)(ii) or (b)(ii) must contain a statement signed by both the signatory and the witness in the presence of the child and of each other that the child, in the presence of them both, expressed the intention to give the authorisation or, as the case may be, withdraw the authorisation and requested the signatory to sign the authorisation or, as the case may be, the withdrawal on behalf of the child.

(4)Authorisation by virtue of subsection (1) which is signed by a signatory on behalf of a child by virtue of subsection (2)(a)(ii) must contain or be accompanied by certification in writing signed by the signatory that, in the opinion of the signatory, the child understands the effect of the authorisation and is not acting under undue influence in giving it.

(5)Nothing in subsection (2)(a)(ii) or (b)(ii) prevents a child who is blind from signing an authorisation by virtue of subsection (1) in accordance with subsection (2)(a)(i) or a withdrawal of authorisation in accordance with subsection (2)(b)(i).

(6)Each witness to authorisation by a child by virtue of subsection (1) (whether it is signed by the child or by a signatory on behalf of the child), must at the time of witnessing certify (in writing signed by the witness) that, in the opinion of the witness, the child understands the effect of the authorisation and is not acting under undue influence in giving it.

Commencement Information

I48S. 44 in force at 1.9.2006 by S.S.I. 2006/251, art. 3

45Authorisation of use etc. after examination: person with parental rights and parental responsibilities for child 12 years of age or overS

(1)A person who immediately before the death of a child who died 12 years of age or over had parental rights and parental responsibilities in relation to the child (but who is not a local authority) may authorise one or more of the matters referred to in section 44(1) in relation to the deceased child if there is in force immediately before the death no authorisation by the child by virtue of that section of any of the matters referred to in it.

(2)Authorisation by virtue of subsection (1) must—

(a)be in writing signed by the person who gives the authorisation in accordance with that subsection and witnessed by 2 witnesses;

(b)state that the person giving the authorisation has no actual knowledge that the child was unwilling for the matter in question to be authorised (for the purpose in question).

(3)Authorisation by virtue of subsection (1) may be withdrawn in writing signed by the person who gave the authorisation in accordance with that subsection and witnessed by 2 witnesses.

Commencement Information

I49S. 45 in force at 1.9.2006 by S.S.I. 2006/251, art. 3

46Authorisation of use etc. after examination: person with parental rights and responsibilities for child under 12 years of ageS

(1)A person who immediately before the death of a child who died under 12 years of age had parental rights and parental responsibilities in relation to the child (but who is not a local authority) may authorise one or more of the matters referred to in section 44(1) as respects the deceased child.

(2)Authorisation by virtue of subsection (1)—

(a)must be in writing signed by the person who gives the authorisation in accordance with that subsection and witnessed by 2 witnesses;

(b)may be withdrawn in writing so signed and witnessed by one witness.

Commencement Information

I50S. 46 in force at 1.9.2006 by S.S.I. 2006/251, art. 3

47Use of tissue sample removed before day on which section 38 comes into forceS

Tissue sample removed from the body of a deceased person (or from an organ which was removed from the body) during an examination of the body carried out before the day on which section 38 comes into force for the purposes of the functions, or under the authority, of the procurator fiscal and held immediately before that day for use for any of the purposes referred to in paragraph (b) of section 39 (whether or not held immediately before that day also for the purposes of the functions of the procurator fiscal) may be retained and used for any of the purposes referred to in that paragraph (whether or not it is retained and used also for the purposes of the functions of the procurator fiscal).

Commencement Information

I51S. 47 in force at 1.9.2006 by S.S.I. 2006/251, art. 3

48Use of organ removed before day on which section 40 comes into forceS

(1)An organ removed from the body of a deceased person during an examination of the body carried out before the day on which section 40 comes into force for the purposes of the functions, or under the authority, of the procurator fiscal and held immediately before that day for use for the purposes of existing approved research (whether or not held immediately before that day also for the purposes of the functions of the procurator fiscal) may be retained and used for the purposes of the existing approved research or for the purposes of education, training or new approved research (whether or not it is retained and used also for the purposes of the functions of the procurator fiscal).

(2)In subsection (1)—

(a)“existing approved research” means research approved before the day on which section 40 comes into force;

(b)“new approved research” means research approved on or after that day,

by such persons (or persons), or group (or groups) of persons, as the Scottish Ministers may specify by order under this section.

Commencement Information

I52S. 48(1) in force at 1.9.2006 by S.S.I. 2006/251, art. 3

I53S. 48(2) in force at 1.9.2006 in so far as not already in force by S.S.I. 2006/251, arts. 2, 3, Sch.

Part 4 SParts 1 to 3: supplementary provision

49Conditions attached to authorisationS

(1)Authorisation—

(a)by virtue of section [F736H, 8D, 10 or 10A] of removal and use of a part of a body for a purpose referred to in section 3(1)(b) to (d);

(b)by a person nominated by virtue of section 30(1) of a matter referred to in section 29(1);

(c)by virtue of section 30(2) of a matter referred to in section 29(1);

(d)by a person nominated by virtue of section 32(1) of a matter referred to in section 31(1);

(e)by virtue of section 32(2) or 33(1) of a matter referred to in section 31(1);

(f)by virtue of section 43(1) of a matter referred to in section 42(1);

(g)by virtue of section 45(1) or 46(1) of a matter referred to in section 44(1),

may be accompanied by a request that the matter authorised is to be carried out subject to conditions specified in the authorisation.

(2)Where a request is made by virtue of subsection (1), the matter must be carried out (in so far as it is reasonably practicable to do so) in accordance with the conditions.

Textual Amendments

Commencement Information

I54S. 49 in force at 1.9.2006 by S.S.I. 2006/251, art. 3

50Nearest relativeS

(1)For the purposes of [F74Part 1 and section 30], the nearest relative [F75in relation to an adult is the person who, at the time mentioned in subsection (1A), is]—

(a)the adult's spouse or civil partner;

(b)living with the adult as husband or wife or in a relationship which had the characteristics of the relationship between civil partners and had been so living for a period of not less than 6 months (or if the adult [F76is in hospital at the time mentioned in subsection (1A)] had been so living for such period when the adult was admitted to hospital);

(c)the adult's child;

(d)the adult's parent;

(e)the adult's brother or sister;

(f)the adult's grandparent;

(g)the adult's grandchild;

(h)the adult's uncle or aunt;

(i)the adult's cousin;

(j)the adult's niece or nephew;

(k)a friend of longstanding of the adult.

[F77(1A)The time is—

(a)in relation to Part 1, the relevant time, and

(b)in relation to section 30, immediately before the adult's death.]

(2)Subsection (1) applies for the purposes of section 43 as it applies for the purposes of [F78Part 1 and section 30] as if after paragraph (k) of that subsection there were inserted (in an additional paragraph) an additional category of person, namely a person who had a longstanding professional relationship with the adult; and accordingly references to subsection (1) in subsections (4) to (6) are to be construed as references to subsection (1) (including that subsection as applied and modified by this subsection).

(3)If the adult's spouse or civil partner—

(a)is permanently separated (either by agreement or under an order of a court) from the adult; or

(b)has deserted, or has been deserted by, the adult and the desertion continues,

subsection (1)(a) is to be disregarded for the purposes of subsection (1).

(4)Relationships in different paragraphs of subsection (1) rank in the order of those paragraphs and for the purposes of that subsection (including that subsection as so applied and modified), except paragraph (e)—

(a)a relationship of the half-blood is to be treated as a relationship of the whole blood;

(b)the stepchild of an adult is to be treated as the child of the adult.

(5)Where more than one person falls within a paragraph in subsection (1), each such person ranks equally for the purpose of the paragraph; and authorisation by virtue of the paragraph in question may be given by any one of the persons falling within the paragraph.

(6)For the purposes of subsection (1), a person's relationship with the adult is to be left out of account if—

(a)the person, immediately before the adult's death, was under 16 years of age;

(b)the person does not wish or is unable to make a decision on the issue of authorisation; or

(c)it is not reasonably practicable to communicate with the person in the time available.

Textual Amendments

Commencement Information

I55S. 50 in force at 1.9.2006 by S.S.I. 2006/251, art. 3

51Witnesses: additional provisionS

(1)For the purpose of the requirements in sections [F7910D], 29(4), 30(4), (5), (7) and (8), 31(2)(a) and (b)(ii), 32(4), (5), (7) and (8), 33(2)(a) and (b), 34(1)(a) and (b), 42(2)(a)(ii) and (b)(ii), 43(2)(a) and (3), 44(2)(a) and (b)(ii), 45(2)(a) and (3) and 46(2)(a) and (b) for authorisation, withdrawal of authorisation, nomination or, as the case may be, withdrawal of nomination, in writing, to be witnessed—

(a)a witness (or where 2 witnesses are required each witness)—

(i)must be a witness to both the signature and the content of the writing;

(ii)must be an adult;

(iii)must sign the writing;

(b)any reference to 2 witnesses is a reference to 2 witnesses who are present at the same time.

(2)For the purposes of the requirements in sections 29(2)(b) and (3)(b)(ii) for authorisation or, as the case may be, withdrawal of authorisation, expressed verbally, to be expressed in the presence of 2 witnesses—

(a)each witness—

(i)must be a witness to the verbal expression of the authorisation or, as the case may be, the withdrawal of the authorisation;

(ii)must be an adult;

(b)the reference to 2 witnesses is a reference to 2 witnesses who are present at the same time.

Textual Amendments

Commencement Information

I56S. 51 in force at 1.9.2006 by S.S.I. 2006/251, art. 3

52Power to prescribe forms and descriptions of persons who may act as a witnessS

The Scottish Ministers may by regulations prescribe—

(a)the form in which—

(i)authorisation by virtue of section 30(2), 32(2) or 33(1);

(ii)authorisation by a person nominated in accordance with section 30(1) or 32(1),

is to be given;

(b)the form in which authorisation by virtue of section 43(1), 45(1) or 46(1) may be given;

(c)descriptions of persons who are eligible to act as a witness in accordance with section 29(2)(b), 30(4) or (5), 31(2)(a), 32(4) or (5), 33(2)(a), 43(2)(a), 44(2)(a), 45(2)(a) or 46(2)(a).

Part 5 SAmendment of the Anatomy Act 1984

53Amendment of the Anatomy Act 1984S

(1)The Anatomy Act 1984 (c. 14) is amended as follows.

(2)In section 1 (definitions, and scope of Act)—

(a)for subsection (1) substitute—

“(1)In this Act, “anatomical examination” means macroscopic examination of a body for the purposes of teaching or studying, or training in or researching into, the gross structure of the human body or surgical or clinical procedures by—

(a)dissection,

(b)removal of, or carrying out a procedure on or in relation to, one or more parts of the body,

(c)implanting into the body any—

(i)part of a body,

(ii)prosthesis, or

(iii)implant,

and where any part of the body is separated in the course of its anatomical examination the examination includes the examination of the part for those purposes.”;

(b)after subsection (2), insert—

“(2A)An imported body is not an anatomical specimen until an authority for its anatomical examination has been given under section 4A(1).”;

(c)in subsection (4)—

(i)for the words “competent legal authority” substitute “ procurator fiscal ”;

(ii)for the words from “carried” to the end substitute “ a post-mortem examination as defined in section 23 of the Human Tissue (Scotland) Act 2006 (asp 4) ”;

(d)in subsection (5), for the words from the beginning to “research” where it second occurs, substitute “ If a part of a body is authorised to be removed for transplantation, research, education, training or audit under section 6, 7, 8, 9 or 10 of the Human Tissue (Scotland) Act 2006 (asp 4), that Act (and not this Act) applies to the removal and use of the part, even if the transplantation, research, education, training or audit ”.

(3)In section 2 (control of examination and possession of anatomical specimens)—

(a)in subsection (1)—

(i)in paragraph (c), for the words “section 4” substitute “ sections 4 to 4B ”;

(ii)in paragraph (d), for the words from “section 15” to the end substitute “ section 22 of the 1965 Act or, where the body concerned is an imported body, death has been registered or recorded (or the equivalent) under the law concerning such matters applicable in the country or territory in which the person died ”;

(b)in subsection (2)—

(i)in paragraph (b), for the words “section 4” substitute “ sections 4 to 4B ”;

(ii)in paragraph (c), for the words from “section 22(1)” to the end substitute “ section 24 of the 1965 Act or, where the body concerned is an imported body, a certificate or other document having the equivalent effect has been issued under the law concerning such matters applicable in the country or territory in which the person died ”;

(c)in subsection (4), the words from “ “the 1953 Act”” to “and”, where it second occurs, are repealed.

(4)In section 3(3)(b) (licences), the words from “carries” to “and” are repealed.

(5)In section 4 (lawful examinations)—

(a)in subsection (1), for the words from “a person” to “request” substitute “ a person, who at the time the request is made is 12 years of age or over, requests ”;

(b)after that subsection, insert—

“(1A)A request by a person under subsection (1) must be in writing and—

(a)signed by the person and subject to subsection (1C)(a), witnessed by an adult who is a witness to both the signature and the content of, and signs, the writing, or

(b)subject to subsections (1C)(b) and (1D), if the person is blind or unable to write, signed by an adult (the signatory) on his behalf and witnessed by another adult who is a witness to both the signature and the content of, and signs, the writing.

(1B)A request by a person under subsection (1) which is signed by a signatory on behalf of the person and witnessed as mentioned in subsection (1A)(b) must contain a statement signed by both the signatory and the witness in the presence of the person and of each other that the person, in the presence of them both, expressed his intention to make the request and requested the signatory to sign the request on his behalf.

(1C)If the person making the request under subsection (1) is 12 years of age or over but not an adult—

(a)in the circumstances mentioned in subsection (1A)(a)—

(i)the request must be witnessed by two adults who are present at the same time, and

(ii)each witness must, at the time of witnessing, certify (in writing signed by the witness) that, in the opinion of the witness, the person understood the effect of the request and was not acting under undue influence in making it,

(b)in the circumstances mentioned in subsection (1A)(b)—

(i)the signatory must, at the time of signing on behalf of the person, certify (in writing signed by the signatory) that, in the opinion of the signatory, the person understands the effect of the request and is not acting under undue influence in making it, and

(ii)the witness must, at the time of witnessing, certify (in writing signed by the witness) that, in the opinion of the witness, the person understands the effect of the request and is not acting under undue influence in making it.

(1D)Nothing in paragraph (b) of subsection (1A) prevents a person who is blind from signing a request under subsection (1) in accordance with paragraph (a) of subsection (1A).”;

(c)subsection (3) is repealed;

(d)in subsection (4), for the words “subsections (6) to (8)” substitute “ subsection (6) and section 4B(1) and (2) ”;

(e)in subsection (6), the words “This subsection applies only to Scotland.” are repealed;

(f)subsections (7) and (8) are repealed;

(g)after subsection (9), insert—

“(9A)This section does not apply to the use of an imported body for anatomical examination.”;

(h)subsections (10) and (11) are repealed.

(6)After that section, insert—

“4ALawful examinations: imported bodies

(1)Subject to subsection (2), the person lawfully in possession of an imported body may authorise use of the body for anatomical examination if—

(a)the body is imported for use for anatomical examination in Scotland,

(b)either—

(i)there has been no previous examination of the imported body outwith Scotland (being anatomical examination or examination which has the characteristics of anatomical examination), or

(ii)there has been such an examination of it but only for the purpose of removing and retaining one or more parts of the body for the purposes of education, training or research, and

(c)no more than three years have elapsed since the date of death.

(2)The person may only authorise such use if licensed under section 3(2) to—

(a)carry out anatomical examinations, and

(b)have possession of anatomical specimens.

(3)Subject to section 4B(1) and (2), the anatomical examination of an imported body in accordance with an authority given in pursuance of this section is lawful by virtue of this section.

4BLawful examinations: additional provision

(1)No authority may be given under section 4(2) or 4A(1) in respect of a body by a person entrusted with the body for the purpose only of its interment or cremation.

(2)Authority under section 4(2) or 4A(1) expires at the end of the statutory period (even if the person lawfully in possession of the body concerned authorises its use under section 4(2) or, as the case may be, 4A(1) for a longer or a shorter period or for no particular period).

(3)In subsection (2), “the statutory period” means the period of 3 years (or such other period as the Scottish Ministers may from time to time by order specify for the purposes of this subsection) beginning with the date of the deceased’s death.

(4)The power to make an order under subsection (3) shall be exercisable by statutory instrument subject to annulment in pursuance of a resolution of the Scottish Parliament; and no such order shall apply in relation to the body of a person who died before the coming into force of the order.”.

(7)In section 5 (control of possession after examination)—

(a)for subsection (1) substitute—

“(1)This section applies where—

(a)authority under section 4(2) or, as the case may be, 4A(1) to use a body for anatomical examination has expired,

(b)the anatomical examination of a body has been concluded before the expiry of such authority, or

(c)a body has been used for examination outwith Scotland (being anatomical examination or examination which has the characteristics of anatomical examination) except in a case where—

(i)that examination was only for the purpose of removing or retaining one or more parts of the body for the purposes of education, training or research,

(ii)the body is imported for use for anatomical examination in Scotland, and

(iii)no more than three years have elapsed since the date of death,

whether or not the body or part of the body has undergone any process to preserve it.”;

(b)in subsection (2), for “and (4)” substitute “ , (4) and (4A) ”;

(c)for subsection (4) substitute—

“(4)Subsection (2) does not apply—

(a)where—

(i)a person has possession of a part of a body whose anatomical examination has been concluded before the expiry of the authority under section 4(2) or, as the case may be, 4A(1),

(ii)the part is such that the person from whose body it came cannot be recognised simply by examination of the part,

(iii)the person with possession is authorised to have possession under subsection (5), and

(iv)possession of the part is lawful by virtue of section 6, nor

(b)where—

(i)a person has possession of a part of a body which has been used for examination outwith Scotland (being anatomical examination or examination which has the characteristics of anatomical examination),

(ii)the part was removed from the body during the course of the examination,

(iii)the death of the person from whose body the part has come has been registered or recorded (or the equivalent) under the law applicable in the country or territory in which the person died,

(iv)the part is such that the person from whose body it came cannot be recognised simply by examination of the part, and

(v)the person with possession is authorised to have possession under subsection (5).

(4A)Subsection (2) does not apply where—

(a)a person has possession of a body which has been used for examination outwith Scotland (being anatomical examination or examination which has the characteristics of anatomical examination),

(b)the death of the deceased has been registered or recorded (or the equivalent) under the law applicable in the country or territory in which the deceased died,

(c)the body was not imported for use for anatomical examination in Scotland; and is not so used at any time,

(d)the body is such that the deceased cannot be recognised simply by examination of the body, and

(e)the person with possession of the body is authorised to have possession under subsection (5).”;

(d)in subsection (5)—

(i)after the word “education” insert “ , training ”;

(ii)after the word “of”, at the third place it occurs, insert “ bodies or, as the case may be, ”;

(iii)after the word “of”, at the fifth place it occurs, insert “ a body or ”;

(e)in subsection (6)(a), after the word “to” insert “ bodies or ”.

(8)In section 6 (lawful possession after examination)—

(a)in subsection (1)—

(i)repeal the words “a person, in expressing”;

(ii)for “has given” substitute “ includes ”;

(iii)for “his” substitute “ the person's ”;

(b)for subsection (3) substitute—

“(3)Authority given under section 4A(1) for the use of an imported body for anatomical examination may include authority for possession of parts (or any specified parts) of the body to be held in accordance with the authority after the examination is concluded.”.

(9)After section 6, insert—

“Control of public displayS

6AControl of public display

(1)Subject to subsections (2) to (8), no person shall publicly display—

(a)an anatomical specimen,

(b)a body or part of a body which has been used for anatomical examination, or

(c)a body or part of a body which has been used outwith Scotland for anatomical examination or examination which has the characteristics of anatomical examination,

whether or not it has undergone a process to preserve it.

(2)Subsections (3)(c), (5)(e), (7)(d) and (8)(d) do not apply to such persons as the Scottish Ministers may by order specify; being persons responsible for the operation or control of such museums as they may so specify.

(3)Where—

(a)a person is authorised under section 5(5) to have possession of a part of a body,

(b)possession of the part is lawful by virtue of section 6, and

(c)the display is authorised under subsection (9),

subsection (1) does not apply as respects the public display of the part if the condition in subsection (4) is met.

(4)The condition is that where the lawful possession of the part by virtue of section 6 is—

(a)in pursuance of a request under section 4(1), that request also includes permission for public display (and there is no reason to believe that permission was withdrawn), or

(b)in pursuance of an authority under section 4A(1), that authorisation also includes authority for public display.

(5)Where—

(a)a person is authorised under section 3(4) to have possession of an anatomical specimen,

(b)the anatomical specimen is in the course of being used for anatomical examination in pursuance of an authority under section 4(2) or 4A(1),

(c)the body or a part of the body is such that the deceased cannot be recognised simply by examination of the body or, as the case may be, the part,

(d)the statutory period referred to in section 4B(2) has not expired, and

(e)the display is authorised under subsection (9),

subsection (1) does not apply as respects the public display of the body or, as the case may be, the part of the body, if the condition in subsection (6) is met.

(6)The condition is that where the anatomical examination is—

(a)in pursuance of a request under section 4(1), that request also includes permission for public display (and there is no reason to believe that permission was withdrawn), or

(b)in pursuance of an authority under section 4A(1), that authorisation also includes authority for public display.

(7)Where—

(a)a person is authorised under section 5(5) to have possession of a part of a body,

(b)the part is a part of a body which has been used outwith Scotland for anatomical examination or examination which has the characteristics of anatomical examination,

(c)the part was removed from the body during the course of that examination, and

(d)the display is authorised under subsection (9),

subsection (1) does not apply as respects the public display of the part.

(8)Where—

(a)a person is authorised under section 5(5) to have possession of a body,

(b)the body has been used outwith Scotland for anatomical examination or examination which has the characteristics of anatomical examination,

(c)the body was not imported for use for anatomical examination in Scotland; and is not so used at any time, and

(d)the display is authorised under subsection (9),

subsection (1) does not apply as respects the public display of the body.

(9)If the Scottish Ministers think it desirable to do so in the interests of education, training or research, they may grant a licence to a person to publicly display the body or, as the case may be, the part, and a person is authorised under this subsection to so display a body or a part of a body if, at the time of the display he is licensed under this subsection.

(10)No person, whether the holder of a licence granted under subsection (9) or not, may publicly display a body or a part of a body while—

(a)any procedure in relation to an anatomical examination, or

(b)any similar procedure,

is being carried out.

(11)In subsection (10)(a) the reference to “procedure” includes dissection, removal and implantation.

(12)A person to whom a licence has been granted under subsection (9) shall—

(a)compile such records as may be specified by regulations made by the Scottish Ministers, and

(b)retain for such period as may be so specified any records compiled in accordance with paragraph (a).

(13)For the purposes of this section, public display, in relation to the body or part of the body of a deceased person (including an anatomical specimen) does not include—

(a)display of the body or part for the purposes of enabling people to pay their final respects to the deceased or which is incidental to the deceased's funeral,

(b)use of the body or part for the purpose of public display at a place of public religious worship, or at a place associated with such a place, if there is a connection between the body or, as the case may be, the part and the religious worship which takes place at the place in question.

(14)The power to make an order under subsection (2) or regulations under subsection (12)(a) shall be exercisable by statutory instrument subject to annulment in pursuance of a resolution of the Scottish Parliament.”.

(10)In section 7 (licences: general provisions)—

(a)in subsection (7), after the word “Act” insert “ , subject to subsection (7A), ”;

(b)after that subsection, insert—

“(7A)Subsection (7) does not apply in relation to a decision of the Scottish Ministers to revoke a licence under this Act if the Ministers consider that there would be a risk to public health if the requirements of that subsection were to apply, and where the Scottish Ministers consider that to be the case they shall notify the person to whom the licence was granted of the revocation and that for the reasons mentioned in this subsection the revocation takes effect on the date specified in the notification.”;

(c)in subsection (8), after the word “(7)” insert “ or (7A) ”.

(11)After that section, insert—

“7AAppeal to sheriff principal against licence decision

(1)This section applies to a decision of the Scottish Ministers under—

(a)section 3(1) refusing to grant a licence for the use of premises for carrying out anatomical examinations,

(b)section 3(2) refusing to grant a licence to a person to—

(i)carry out anatomical examinations, or

(ii)have possession of anatomical specimens,

(c)section 5(5) refusing to grant a licence to a person to have possession of a body or a part of a body,

(d)section 6A(9) refusing to grant a licence to a person to publicly display a body or a part of a body,

(e)section 7(5) granting a licence subject to conditions,

(f)section 7(6)(a) revoking a licence.

(2)The—

(a)applicant, in the case of a decision referred to in subsection (1)(a), (b), (c), (d) or (e), and

(b)person to whom the licence was granted, in the case of a decision referred to in subsection (1)(f),

may, before the expiry of the period of 21 days beginning with the day the decision is made, appeal under this section to the sheriff principal against the decision on one or more of the grounds mentioned in subsection (3).

(3)The grounds are that the Scottish Ministers in arriving at their decision—

(a)erred in law,

(b)based their decision on any incorrect material fact,

(c)acted contrary to natural justice, or

(d)exercised their discretion in an unreasonable manner.

(4)An appeal to the sheriff principal under this section is to be—

(a)where the appeal is against a decision under—

(i)section 3(1),

(ii)section 7(5) or 7(6)(a) in respect of a licence for the use of premises,

to the sheriff principal of the sheriffdom in which the premises are situated;

(b)in any other case, to—

(i)the sheriff principal of the sheriffdom in which the appellant resides, or

(ii)the sheriff principal of the Sheriffdom of Lothian and Borders at Edinburgh.

(5)In allowing an appeal under this section, the sheriff principal—

(a)shall set aside the decision, and

(b)shall—

(i)if he considers that he can do so on the facts considered to be established by the Scottish Ministers, substitute his own decision, or

(ii)remit the case to the Scottish Ministers for consideration anew.”.

(12)In section 8(1) (regulations)—

(a)in paragraph (a), after the word “4” insert “ or section 4A ”;

(b)in paragraph (b)—

(i)after the word “to”, at the first place it occurs, insert “ bodies or ”;

(ii)for the words “lawful by virtue of section 6” substitute “ authorised under section 5(5) ”;

(c)after that paragraph, insert “,

(c)in relation to bodies or parts of bodies the display of which is authorised under section 6A(9) with a view to securing that the bodies or parts are decently cared for and displayed with appropriate respect”.

(13)After that section, insert—

“8ACode of practice

(1)The Scottish Ministers may prepare a code of practice for the purpose of—

(a)giving practical guidance to persons—

(i)licensed under section 3(2) to carry out anatomical examinations or to have possession of anatomical specimens,

(ii)authorised under section 5(5) to have possession of a body or parts of a body,

(iii)authorised under section 6A(9) to publicly display a body or parts of a body, and

(b)laying down standards expected in relation to such activities.

(2)A code of practice prepared under subsection (1) may not be given effect unless and until it has been—

(a)confirmed by order, and

(b)brought into force on a day appointed by order,

by the Scottish Ministers.

(3)The Scottish Ministers shall, before confirming a code of practice by order under subsection (2)(a)—

(a)consult such persons as they see fit, and

(b)lay a draft of the code before the Scottish Parliament.

(4)The Scottish Ministers shall publish a code of practice so confirmed in such way as, in their opinion, is likely to bring it to the attention of those interested in it.

(5)The Scottish Ministers shall—

(a)keep a code of practice confirmed by order under subsection (2)(a) under review, and

(b)prepare a revised code of practice where appropriate.

(6)Subsections (2) to (4) apply to a revised code of practice prepared under subsection (5)(b) as they apply to a code of practice prepared under subsection (1).

(7)Any person licensed or authorised as mentioned in subsection (1)(a) shall have regard to the provisions of a code of practice published under subsection (4) for the time being in force (so far as the provisions are applicable to the activity the person is licensed or, as the case may be, authorised to carry out); but a failure on the part of any such person to observe any provision of such code of practice shall not of itself render the person liable to any proceedings.

(8)The Scottish Ministers may, in carrying out their functions under this Act with respect to licences, take into account any relevant observance of, or failure to observe, a code of practice published under subsection (4), so far as dealing with an application for a licence under section 3(2), 5(5) or 6A(9).

(9)The power to make an order under subsection (2)(a) or (b) shall be exercisable by statutory instrument subject to annulment in pursuance of a resolution of the Scottish Parliament.”.

(14)In section 9(1) (inspectors of anatomy), the words “Her Majesty's Inspector of Anatomy or (if the terms of the appointment so provide)” are repealed.

(15)In section 10 (inspector's power to inspect records and premises)—

(a)in subsection (1), for the words “or 5(6)” substitute “ , 5(6) or 6A(12) ”;

(b)in subsection (2)(a), for the words “section 11(1)(a)” substitute “ section 11(1) ”;

(c)subsection (5) is repealed.

(16)In section 11 (offences)—

(a)in subsection (1)—

(i)the word “or” following paragraph (b) is repealed;

(ii)after paragraph (c), insert “or

(d)publicly displays a body or part of a body in contravention of section 6A(1) or (10),”;

(b)in subsection (5), in each of paragraphs (a), (b) and (c) for the words “or 5(6)” substitute “ , 5(6) or 6A(12) ”;

(c)in subsection (9), after the word “director,” insert “ member, ”;

(d)after that subsection, insert—

“(9A)Where an offence under this section or against regulations under section 8 is committed by a Scottish partnership and is proved to have been committed with the consent or connivance of or to be attributable to any neglect on the part of a partner or a person who was purporting to act in such capacity, that person, as well as the partnership, is guilty of the offence and liable to be proceeded against and punished accordingly.

(9B)Where an offence under this section or against regulations under section 8 is committed by an unincorporated association other than a Scottish partnership and is proved to have been committed with the consent or connivance of or to be attributable to any neglect on the part of a person who is concerned in the management or control of the association or a person who was purporting to act in any such capacity, that person, as well as the unincorporated association, is guilty of the offence and liable to be proceeded against and punished accordingly.”.

(17)Before section 12, insert—

“11AInterpretation

In this Act—

Commencement Information

I57S. 53(1)-(5)(7)(a)-(d)(8)(10)(11)(14)-(17) in force at 1.9.2006 by S.S.I. 2006/251, art. 3

I58S. 53(6)(7)(e)(9)(12)(13) in force at 12.5.2006 for specified purposes and in force at 1.9.2006 in so far as not already in force by S.S.I. 2006/251, arts. 2, 3, sch.

Part 6 SMiscellaneous

54Arrangements by the Scottish Ministers for assistance with functions under section 1, 2, 17(3), (4) or (5), 18, 19(2) or 20(3)S

(1)The Scottish Ministers may make arrangements with a public authority in the United Kingdom for the authority to assist them (directly or indirectly) in relation to any of their functions under section 1, 2, 17(3), (4) or (5) (except the Ministers' powers under that section to make regulations), 18 (except the Ministers' power under that section to make regulations), 19(2) or 20(3).

(2)Assistance under such arrangements may take the form of the carrying out by the authority of the function.

(3)Arrangements under this section do not affect the responsibility for the carrying out of the Scottish Ministers' functions.

Commencement Information

I59S. 54 in force at 1.9.2006 by S.S.I. 2006/251, art. 3

55Power to give effect to [F80EU] obligationsS

(1)The Scottish Ministers may by regulations amend this Act for the purpose of—

(a)implementing a relevant obligation or enabling a relevant obligation to be implemented;

(b)dealing with matters arising out of or related to a relevant obligation.

(2)The power under subsection (1) includes—

(a)(in particular) power to add or omit provisions;

(b)power consequentially to amend or repeal any other enactment and any instrument made under an enactment.

(3)In this section, “relevant obligation” means a [F80EU] obligation of the United Kingdom relating to material which consists of, includes or is derived from human cells.

Textual Amendments

Commencement Information

I60S. 55 in force at 1.9.2006 in so far as not already in force by S.S.I. 2006/251, arts. 2, 3, Schs.

56Bodies corporate etc.S

(1)Where an offence under section 16(1), 17, 19(4), 20(1) or (2) or 37(1) which has been committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to, any neglect on the part of—

(a)a director, manager or secretary, member or other similar officer of the body corporate; or

(b)any person who was purporting to act in any such capacity,

that person, as well as the body corporate, is guilty of the offence and liable to be proceeded against and punished accordingly.

(2)Where an offence under section 16(1), 17, 19(4), 20(1) or (2) or 37(1) which has been committed by a Scottish partnership is proved to have been committed with the consent or connivance of, or to be attributable to, any neglect on the part of—

(a)a partner; or

(b)a person who was purporting to act in any such capacity,

that person, as well as the partnership, is guilty of the offence and liable to be proceeded against and punished accordingly.

(3)Where an offence under section 16(1), 17, 19(4), 20(1) or (2) or 37(1) which has been committed by an unincorporated association other than a Scottish partnership is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of—

(a)a person who is concerned in the management or control of the association; or

(b)any person who was purporting to act in any such capacity,

that person, as well as the unincorporated association, is guilty of the offence and liable to be proceeded against and punished accordingly.

Commencement Information

I61S. 56 in force at 1.9.2006 by S.S.I. 2006/251, art. 3

57Amendment of the Adults with Incapacity (Scotland) Act 2000S

(1)The Adults with Incapacity (Scotland) Act 2000 (asp 4) is amended as follows.

(2)In section 16(6) (creation and exercise of welfare power of attorney)—

(a)the word “or” at the end of paragraph (a) is repealed;

(b)after paragraph (b), insert “;

(c)make, on behalf of the granter, a request under section 4(1) of the Anatomy Act 1984 (c. 14);

(d)give, on behalf of the granter, an authorisation under, or by virtue of, section 6(1), 17, 29(1) or 42(1) of the Human Tissue (Scotland) Act 2006 (asp 4); or

(e)make, on behalf of the granter, a nomination under section 30(1) of that Act”.

(3)In section 64(2) (functions and duties of guardian)—

(a)the word “or” at the end of paragraph (a) is repealed;

(b)after paragraph (b), insert “;

(c)make, on behalf of the adult, a request under section 4(1) of the Anatomy Act 1984 (c. 14);

(d)give, on behalf of the adult, an authorisation under, or by virtue of, section 6(1), 17, 29(1) or 42(1) of the Human Tissue (Scotland) Act 2006 (asp 4); or

(e)make, on behalf of the adult, a nomination under section 30(1) of that Act”.

Commencement Information

I62S. 57 in force at 1.9.2006 by S.S.I. 2006/251, art. 3

Part 7 SGeneral

58Ancillary provisionS

(1)The Scottish Ministers may by order make such incidental, supplemental, consequential, transitional, transitory or saving provision as they consider necessary or expedient for the purposes, or in consequence, of this Act.

(2)An order under this section may—

(a)make different provision for different purposes;

(b)modify any enactment, instrument or document.

Commencement Information

I63S. 58 in force at 1.9.2006 in so far as not already in force by S.S.I. 2006/251, arts. 2, 3, Sch.

59Regulations or ordersS

(1)Any power conferred by this Act on the Scottish Ministers to make regulations or orders—

(a)must be exercised by statutory instrument;

(b)may be exercised so as to make different provision for different purposes.

(2)A statutory instrument containing an order or regulations made under this Act (except an order under section 62(2)) is, subject to subsection (3), subject to annulment in pursuance of a resolution of the Parliament.

(3)A statutory instrument containing—

(a)regulations under section 55 or an order under section 58 containing provisions which add to, replace or omit any part of the text of an Act;

[F81(aa)regulations under section 2D(1);]

[F82(ab)regulations under section 6D(5);]

[F83(ac)regulations under section 10C(1);]

[F84(ad)regulations under section 16B(1) or 16C(1);]

[F85(ae)regulations under section 16J(8);]

(b)regulations under section 17(3), (4) or (5),

is not to be made unless a draft of the instrument has been laid before, and approved by resolution of, the Parliament.

Textual Amendments

F82S. 59(3)(ab) inserted (11.10.2019 for specified purposes, 26.3.2021 in so far as not already in force) by Human Tissue (Authorisation) (Scotland) Act 2019 (asp 11), ss. 7(3), 29(2); S.S.I. 2019/305, reg. 2(b); S.S.I. 2021/108, reg. 2

F84S. 59(3)(ad) inserted (11.10.2019 for specified purposes, 26.3.2021 in so far as not already in force) by Human Tissue (Authorisation) (Scotland) Act 2019 (asp 11), ss. 23(2), 29(2); S.S.I. 2019/305, reg. 2(c); S.S.I. 2021/108, reg. 2

60InterpretationS

(1)In this Act unless the context otherwise requires—

(2)In this Act, references to transplantation are to transplantation into a human body; and references to “transplant” or to “transplants” are to be construed accordingly.

61RepealsS

The enactments specified in column 1 of the schedule are repealed to the extent specified in column 2.

Commencement Information

I64S. 61 in force at 1.9.2006 by S.S.I. 2006/251, art. 3

62Short title and commencementS

(1)This Act may be cited as the Human Tissue (Scotland) Act 2006.

(2)The provisions of this Act, except this section and sections 52, 59 and 60, come into force on such day as the Scottish Ministers may by order appoint.

(3)Different days may be appointed under subsection (2) for different purposes.

SCHEDULESRepeals

(introduced by section 61)

Commencement Information

I65Sch. in force at 1.9.2006 by S.S.I. 2006/251, art. 3

EnactmentExtent of repeal
Human Tissue Act 1961 (c. 54)The whole Act.
Corneal Tissue Act 1986 (c. 18)The whole Act.
Human Organ Transplants Act 1989 (c. 31)The whole Act.