Organ donation - new opt-out system on the way

Currently there are over 6,000 people in the UK waiting for an organ transplant. In an attempt to tackle that waiting list the government introduced legislation last year providing for an opt-out system for organ donation in England. The system is due to come into effect in the Spring.

In December the NHS began airing TV adverts to publicise the changes to the organ donation laws. It is hoped that one outcome of the publicity campaign is that it will encourage people to make a positive decision about organ donation: either by signing up to the organ donation register or by making their organ donation wishes known to their nearest and dearest. But nonetheless the vast majority of the country's adult population will die without having made their wishes known. So what then?

The new law rules introduced under the Organ Donation (Deemed Consent) Act 2019 (the 'Act'). The Act provides that a deceased individual will be deemed to have consented to their organs being donated unless someone in a "qualifying relationship" with the deceased individual (for example a spouse or a child) provides information that would lead a reasonable person to conclude that the deceased would not have consented to the organ donation. The new rules will apply to the entire adult population of England and Northern Ireland (Wales having already introduced similar legislation in 2015) with the following exceptions:

                • where the deceased had not been ordinarily resident in England for a period of at least 12 months immediately before they died; or

                • where the deceased had, for a significant period before their death, lacked capacity to understand that deemed consent would apply

Following the rules change any person wishing to ensure that they are not considered for organ donation should therefore register their wish to opt out. Failing that, a person should make their wish to opt out of organ donation known. This has been referred to by the British Medical Association (BMA) as an "unregistered objection". There is nothing within the legislation as to what format an unregistered objection might take. Consequently, it is entirely possible that an unregistered objection may be verbal, although the difficulties verifying a verbal objection may result in potential disputes and so should be avoided.

If there is no registered objection, and if relatives are not aware of any unregistered objection, then donation can proceed. But what if the deceased made no known objection but certain family members object? Or what if one child of the deceased claims that their parent would not have consented and one child claims the opposite? This may be the point at which most disputes arise, although the BMA recognise potential issues, noting "There is scope not to proceed if it is evident that to do so would cause severe distress to those close to the patient."

Given the sensitive nature of this issue and the potential for disagreements to arise, those wishing to ensure that their wishes are fulfilled should take the following steps:

• If a person wants their organs to be donated then they should sign up to NHS Organ Donor Register
• Equally, if a person wants to opt out of organ donation then they should register a wish to opt-out of donation. Given that the opt out register is yet to go live a decision to opt out should be recorded in writing. This may be in the form or a letter or may be recorded in a Will. Once the opt out register goes live those wishes can then be added to the opt out register.
• Whichever option is chosen, it is recommended that the matter is discussed with close family to ensure that any specific wishes are known.