Why is consent needed?

Why is consent needed from all parties when DNA testing?

Before making the decision to go ahead with any DNA relationship test, it is important to carefully consider the full ramifications of the result for everybody concerned. As well as sometimes being surprising, the results may have legal implications. Counselling either before or after the test may be in order. Think through the consequences carefully. Talk it through with friends and relatives. Call our friendly customer services team. You may also want to seek legal advice through a solicitor or the Citizens Advice Bureau.

If you decide to proceed with DNA testing then you need to be aware that it is a legal requirement for all parties to agree to the test.

The Human Tissue Act 2004 covers England, Wales and Northern Ireland. It regulates activities concerning the removal, storage, use and disposal of human tissue for a number of scheduled purposes such as research, transplantation, and education and training. Section 45 of the Human Tissue Act includes a section on the non-consensual analysis of DNA. It creates a new offence of DNA ‘theft’. It is unlawful to have human tissue with the intention of its DNA being analysed, without the consent of the person from whom the tissue came.¹ In Scotland, The Human Tissue (Scotland) Act 2006 deals with the uses of human tissue, and similarly includes the non-consensual analysis of DNA.² The offence of DNA theft thus applies UK-wide.

Penalties of up to 3 years imprisonment, a fine, or both, are provided in the Acts as a deterrent to failing to obtain or to misusing consent. As such, regardless of who is instructing the DNA test, written authority is needed from any adult whose samples are provided for DNA testing. This is required by all testing laboratories, not just accredited laboratories like AlphaBiolabs.

When the DNA test involves a child under 18 years of age, only those who have parental responsibility for the child are able to give permission for the child’s DNA to be used in the test.³ A mother or father could refuse a Peace of Mind paternity test. However, the test could still proceed as long as the individual with parental responsibility for the child gives permission. Samples can still be analysed from one parent and the child. When DNA testing is being performed to establish paternity, a DNA sample is not needed from the mother. However, the Human Genetics Commission and the Department of Health both recommend that the mother should be at least aware of the test if not directly involved. All reputable testing laboratories would strongly recommend the inclusion of the mother’s sample for this reason alone; however, there are also scientific reasons to include the mother in a test. Including the mother’s sample makes it possible to identify which of the child’s DNA comes from her, leaving the paternal DNA to compare against the alleged father. Probability of paternity can thus be calculated with much greater certainty.

In the case of legal DNA testing involving a child, anyone with a ‘sufficient personal interest’ (including the Child Support Agency) can apply to the High Court, a County Court or a magistrate for a declaration of parentage. The consent of a child under 18 years old is not required, only the consent of the person having ‘care and control’ of him or her. If that person does not consent then the court may arrange for the sample to be taken if it considers to do so would be in the child’s best interests. In other words, a mother or father could be forced to undertake a paternity test.

It is not possible to proceed with legal DNA testing if you are unable to get the consent of each individual who needs to be tested. Trained sample collectors need to collect the DNA samples (usually cheek buccal cells) from each individual whilst following strict chain of custody conditions. This involves the trained collector inspecting ID, taking a photograph, checking the signed consent forms and confirming the correct person has provided the sample. The collectors pass the samples to AlphaBiolabs to carry out the tests and to provide a report.

Peace of Mind DNA tests, including which are for personal use only, do not require such strict sample collection arrangements. The DNA testing kits can be easily acquired at local High Street stores⁴, such as Home Bargains or they can be posted direct to your home from our testing laboratory. Full instructions tell you how to easily collect your cheek buccal cells using the swabs contained in the kits. After returning the samples for laboratory analysis, the results are available the next working day, or even earlier if required. Signed consent forms are also required for these DNA tests, although there are no strict chain of custody checks undertaken. This is why these tests are for information only and cannot be used for legal reasons.

Faking a paternity test claim is a criminal offence and can result in a prison term. An internet search uncovers multiple sites purporting to sell ‘fake DNA results’. Earlier this year, a Liverpool mother who conned her ex-boyfriend into believing he was her baby’s father was jailed for 12 months. Should an individual try to pass off a doctored DNA report or use an incorrect sample for testing, a legal test would be ordered to support any legal issues (such as changing birth certificates, and inheritance and real estate claims).

For information on any of our Peace of Mind and Legal DNA testing services, please contact AlphaBiolabs on 01 402 9466.

1. http://www.hta.gov.uk/policies/human-tissue-act-2004
2. Human Tissue (Scotland) Act 2006: A Guide to Its Implications tor NHS Scotland (PDF). Human Tissue Authority.
3. http://www.legislation.gov.uk/ukpga/2004/30/section/2
4. http://www.liverpoolecho.co.uk/news/business/jeremy-kyle-dna-testing-firm-11097131