Real life and law making collide

You're very fond of bemoaning in your comments that real life rarely intrudes too closely on debates in the Assembly over sub clauses in legislation and arguments over policy points. You don't put it quite like that, of course. You use words like 'bubble' 'ivory tower' and pithy insults.

But in committee room one this morning, we saw the collision of real life and legislation close up.

They didn't need laminated cards this time. This morning's Health Committee (click on the link to watch in full) on the proposed opt-out Bill on organ transplantation was not far off a masterclass in scrutiny - and you don't hear that too often in the Assembly.

It was the Health Minister's final evidence session of the Bill's stage one scrutiny and came after a series of hearings which have left many of the committee members seriously uneasy about the Bill - however much they may applaud its aims.

This morning's testimony had all the drama of Casualty - for those of you out there in the real world, I'll try and capture some of it for you - and why the Bill in its current form could be in real trouble.

First of all, the basics. The Welsh Government is legislating to change the current system of organ donation in Wales from opt in, where you sign up to say you're willing for some or all of your organs to be donated in the event of your death, to opt out, where you are deemed to have consented to have your organs removed for transplant unless you've previously specified you don't want to be a donor.

Over the past few weeks, the committee has been hearing from people involved in organ transplantation, from the academic ethicists right through to those who have to have those unimaginably difficult discussions with families at their time of greatest grief about the personal wishes of their loved one at the point of death.

Every witness, without exception, was supportive of the aim of increasing the number of donors to meet the UK-wide shortfall. But pretty much every witness raised some concerns, be they ethical or practical, about the way the proposed Bill is currently drafted.

Today was the AMs' chance to put those directly to the health minister and her officials. With the help of my colleagues who didn't miss a word, I'll try and summarise as best I can some often complex exchanges - but the upshot is that one of the key aspects of the Bill which has dogged it from the very first may now have to be rewritten before it's brought back to the Assembly for a vote.

Let's look at that first. It's the role of family and friends in deciding whether a transplant should go ahead. Under the current system, there is a "ranked list" of family and close friends who can be consulted by clinicians about taking organs. It puts the wishes of close relatives, such as parents or spouses in a hierarchy above those of more distant ones. Under the new system, there would be an "unranked list" of family and close friends.

The significance of this change, confirmed by Lesley Griffiths in previous evidence to the committee, is that under an "unranked list" as proposed, any family member or close friend would have the right to object to a transplant taking place, even if other, closer blood relatives wanted it to go ahead.

This has rung alarm bells with AMs, clinicians and transplant campaigners, some of whom fear that it could actually reduce the number of donors, rather than increase it. What family ever agrees about anything, asked one consultant rhetorically.

And this is where real life intrudes on legislation. Because at present, there is a practical reality when the situation arises, one in which a specialist transplant nurse will look at who is present around the bed, and then quietly speak to the family member or members who they believe will best represent the wishes of the deceased.

How do you commit that to paper? How do you write it into a new piece of legislation hoping that, in practice, individual doctors and nurses will carry it out in the most demanding of circumstances using their skill, diplomacy and common sense - and it's that which has clearly spooked the AMs who will have to vote the Bill into law.

We can vote on this and walk away, said Kirsty Williams, Lib Dem leader and committee member. It's the doctors who are going to have to make this work afterwards.

Today, under some forensic questioning, Lesley Griffiths more than hinted that she's getting ready to scrap the plan for the unranked list in the Bill as currently drafted - and instead stick with the ranked list approach currently in place. Her officials suggested the original reason for the switch was that such a "ranked list" was no longer as relevant in a society where the nuclear family is much less common than in the past. But it seems the realisation has dawned that the unranked list has the potential to create chaos at exactly the time when it is least needed.

The fact that there's widespread confusion about the key area even this far into the legislative process doesn't reflect well on the government's communications strategy for the Bill, but it's precisely this area which is also giving AMs a great deal of pause for thought.

It's acknowledged by all sides that the new system, if introduced, would be ruled unlawful IF it was found that members of the public weren't sufficiently aware of it to be able to give informed deemed consent.

The government is writing into the legislation itself a requirement for it to carry out a wide-scale publicity campaign to ensure that every member of the public and everyone coming to live in Wales is aware that unless they opt out, they will have deemed their consent for their organs to be donated.

But the budget they've set aside for this - £2.9m over 10 years - was met with scepticism by AMs this morning. Asked to account for what appears to be such a tiny sum for such a huge and important campaign - remember, the very lawfulness of the legislation, as well as public confidence in the system depends on it - the minister and her officials said they'd based the costings in part on the campaign to educate the public on the smoking ban.

Eyebrows were raised even further at this and further still when the officials said the costs would be front-loaded, with £2m over the first two years, and £900,000 over the following eight years. These AMs are old hands at fighting election campaigns, remember, and they know how much it costs to reach just a fraction of the population, let alone all. And how do you define public awareness? 100 per cent knowledge in opinion polls? 95? 90? Back to the real world again.

On this though, the Minister wasn't for turning. She was confident that the costing for the publicity campaign was robust.

If you've sensed from all this that the committee is uneasy about many aspects of the Bill, then you're right. Crucially for Lesley Griffiths, the questioning from the Labour AMs on the committee, Mick Antoniw, Lynne Neagle and Rebecca Evans, and the chair, Mark Drakeford, was just as tenacious as from their Tory, Plaid and Lib Dem counterparts. And this isn't something the government can simply whip its backbenchers into line on either, particularly if the report now to be drawn up from the health committee raises doubts, as now seems likely.

By the end of the evidence session, several of the AMs appeared to be questioning the very need for the change to opt-out in the first place. On the government's own figures, the change is predicted to increase the number of donors in Wales by 15 every year. With the cost of introducing the system put at more than £8m, they asked, why go through this lengthy process of legislating? Why not just spend the £8m on a substantial publicity campaign aimed at increasing the numbers of people carrying a donor card, as in the current system? That could well have a similar or even greater impact on donation rates.

The question was still hanging in the air as the Minister and her officials filed out of the committee room.

Is there a chance that the government will simply drop the Bill? Unlikely. They've had the toughest possible lesson in what legislating way out of the Assembly's comfort zone feels like, and if there was a vote tomorrow on whether to make it law, I wouldn't be in the least confident that it would pass.

But on the government's timetable, that final vote is due to take place before AMs leave for their summer holidays this year.