Once you have decided to proceed with testing it is essential that you get the consent of each individual who is to be tested. The Human Tissue Act created the offence of “DNA theft” (section 45).
In England & Wales you have to be an adult in legal terms (18 years old) before you can consent to DNA Testing. Responsible adults with parental responsibility must give consent for young persons under the minimum age.
The Act also lists the purposes for which consent is required. The consent required under the Act is called 'appropriate consent', which broadly means consent from the appropriate person, as identified in the Act. Penalties of up to three years imprisonment or a fine, or both, are provided in the Act as a deterrent to failing to obtain or to misusing consent.
The Human Tissue Act makes it an offence to have human tissue, which includes hair, nail and gametes in this context, with the intention of its DNA being analysed without the consent of the individual from whom the tissue came, or of those close to them if they have died. This provision applies UK-wide. Penalties for not obtaining consent are provided.
Section 45 of the Act has a particular relevance to paternity testing given that it covers the non-consensual analysis of DNA. It stipulates that "A person commits an offence if he has any bodily material intending":
- that any human DNA in the material be analysed without qualifying consent, and
- that the results of the analysis be used otherwise than for an excepted purpose,
A person guilty of an offence under this section:
- is liable on summary conviction to a fine not exceeding the statutory maximum
- is liable on conviction on indictment to imprisonment for a term not exceeding 3 years, or to a fine, or to both.
Codes of practice
Guidance and Codes of Practice One of the HTA’s statutory functions is to issue codes of practice and the first covers the central issue of consent. The giving of consent is seen as a positive act. The absence of refusal is not evidence of consent.
The HTA’s Codes of Practice and Standards provide practical guidance to professionals carrying out activities within the scope of the HTA’s remit.
Code A: Guiding principles and the fundamental principle of consent, is the overarching Code and contains information that is applicable to all establishments and professionals operating under our governing legislation.
In combination, this Code and the sector-specific Codes aim to provide anyone undertaking activities relevant to each sector with a reference source which gives practical advice on the minimum steps necessary to comply with the relevant legislation and HTA policy.