Office of Public Sector Information
PART 1 continued
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.
(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) expressed verbally (whether or not expressed during the adult’s last illness and whether or not expressed 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 authorisation by the adult in accordance with section 6(1) (in writing or, as the case may be, expressed verbally).
(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.
(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, 7, 8, 9 or, as the case may be, 10; or
(b) any of the requirements in section 11(1) or (4)(a) is not satisfied as respects the part.
(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 removal and use were authorised as referred to in paragraph (a) of that subsection or, as the case may be, the requirements in question referred to in paragraph (b) of that subsection were satisfied as respects the part.
(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.
(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—
“adult with incapacity” is—
for the purposes of subsections (1)(c) and (2)(c), an adult to whom section 18 applies;
for the purposes of subsection (6)(a)(ii), an adult in respect of whom section 47 of the Adults with Incapacity (Scotland) Act 2000 (asp 4) applies in relation to the domino organ transplant operation in question;
“domino organ transplant operation” means a transplant operation performed on a living person by a registered medical practitioner—
which is designed to safeguard or promote the physical health of the person by transplanting organs or parts of organs into the person; and
by so doing, necessitates the removal of an organ or part of an organ from the person which in turn is intended to be used for transplantation in respect of another living person;
“regenerative tissue” means tissue which is able to be replaced in the body of a living person by natural processes if the tissue is injured or removed;
“reward” means any description of financial or other material advantage, but does not include any payment in money or money’s worth for defraying or reimbursing—
the cost of removing, transporting, preparing, preserving or storing the organ (or part) or tissue;
any liability incurred in respect of expenses incurred by a third party in, or in connection with, any of the activities referred to in paragraph (a);
any expenses or loss of earnings incurred by the person from whose body the organ (or part) or tissue comes so far as reasonably and directly attributable to the person’s supplying it from the person’s body.
(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.
(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.
(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—
“advertisement” includes any form of advertising whether to the public generally, to any section of the public or individually to selected persons;
“reward” has the same meaning as in section 17.
(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.
(1) If there is in force immediately before an adult’s death authorisation by the adult by virtue of section 6(1) 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).
(2) If there is in force immediately before the death of a child who died twelve years of age or over authorisation by the 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).
(3) Any right of any other person to authorise, by virtue of section 7(1), (2) or (3), removal and use of a part of a deceased adult’s body for transplantation 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 immediately before the adult’s death;
(b) any right of any other person to give authorisation as respects the deceased adult by virtue of section 30(1) or (2).
(4) Any right of any other person to authorise, by virtue of section 9(1), (2) or (3) or 10(1) removal and use of a part of a deceased 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 immediately before the child’s death;
(b) any right of another person to give authorisation as respects the deceased child by virtue of section 32(1) or (2).
Human Tissue (Scotland) Act 2006