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Presumed consent for organ donation

By: Dr James Thorpe | Post date: 27/10/2017 | Time to read article: 3 mins

The information within this article was correct at the time of publishing. Last updated 14/11/2018

Written by a Senior Professional
DrJames Thorpe, Editor-in-Chief of New Doctor, reports on the evolving legislation surrounding organ transplantation.

Since the first successful kidney transplant in 1954, advances in immunology and anti-rejection medication have revolutionised the field of transplantation. Transplantation of organs, entire hands and most recently the face has captured the public imagination in a way that few other branches of medicine have.

With an ageing population and a worldwide explosion in chronic diseases such as diabetes, the number of individuals on transplant waiting lists continues to rise. In the UK, the most recent available figures show that there were 6,943 patients waiting for a transplant at the end of March 2015.1 Although 4,431 patients benefited from a transplant, 429 patients died on the waiting list and a further 807 were removed from the list as their health had deteriorated due to advancing disease. The fundamental problem is that there are simply not enough suitable organs available to satisfy demand for these lifesaving procedures.

Until December 2015, all parts of the UK had an ‘opt-in’ system for transplantation under the terms of both the Human Tissue Act 2004 and the Human Tissue Act (Scotland) 2006. With respect to transplantation from a deceased donor, consent can be given by an individual whilst alive or by an appropriate representative of the deceased after death. Signing the organ donor register is considered an indication of consent but only 33% of the UK adult population have signed the register – Scotland has a slightly higher rate with 41%.

In an effort to increase the number of organs available for transplant, a number of European nations including Spain and Portugal have long employed an ‘opt-out’ or ‘deemed consent’ system for organ donation. This system means that unless an adult has opted out of becoming an organ donor, their organs will be available for transplant in the event of their death. Opt-out organ donation systems remain controversial and it can be argued that the very term ‘deemed consent’ is misplaced.
Despite these concerns, there have been increasing calls for a similar system to be adopted in the UK. The issue was considered by the UK Government Organ Donation Taskforce in 2008 and they concluded that there was insufficient evidence to support a change in policy, recommending that rates of organ donation should be increased by improving funding and infrastructure for transplant services.2

Human Transplantation (Wales) Act 2013

Although there has been an increase in organ donation since 2008, The National Assembly for Wales remained concerned about the shortage of organs available for transplant resulting in the passage of the Human Transplantation (Wales) Act 2013.3 In December 2015, Wales became the first UK nation to operate an ‘opt-out’ or ‘deemed’ consent model for deceased organ transplantation. Where an individual has not expressed an objection to organ donation whilst alive, their consent for organ donation will be assumed. The Act applies to all adults over 18 who have been resident in Wales for over 12 months and who die in Wales. The legislation does not apply to anyone living in Wales temporarily and both prisoners and members of the armed services required to reside in Wales are exempt.

Wales operates a ‘soft opt-out’ model which means that family members are approached after an individual dies and given the opportunity to indicate whether they are aware that the deceased had any objection to organ donation. Donation will not proceed if the family believe the individual would have objected.

Early results

Recently published figures have shown that in the six months to 31 May 2016, 60 organs were transplanted in Wales from 31 individual donors, 10 of these donors had their consent deemed under the new legislation. There was an increase in the number of donors compared to the same time period in 2014-2015 when 23 donors donated their organs.4

These positive figures have led to renewed calls for change in England, Scotland and Northern Ireland. The British Medical Association has long supported an ‘opt-out’ model for organ transplantation and passed a motion at its 2016 conference to lobby the UK Government and the devolved administrations.5 Although a Member’s Bill was recently rejected by the Scottish Parliament, the Scottish Government has stated their intention to consult further on the issue and the Human Transplantation Bill remains under consideration by the Northern Ireland Assembly. The longer term results of the change in the law in Wales will be closely observed by these other jurisdictions and all doctors should familiarise themselves with the evolving legislation.

References

  1. Transplant Activity Report 2014-2015, NHS Blood and Transport,

  2. The potential impact of an opt-out system for organ donation in the UK: An independent report, Organ Donation Taskforce
  3. Human Transplantation (Wales) Act 2013, National Assembly for Wales,
  4. Lives saved in first six months of new organ donation system, Welsh Government 2016,
  5. Organ donation opt out could save hundred of lives, doctors hear, BMA,

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Dr James Thorpe Medical Protection Expert

Dr James Thorpe

I am a medicolegal adviser in Edinburgh and joined Medical Protection in 2014. Previously I worked as a general and vascular surgeon working in busy acute hospitals. On a daily basis, I provide medicolegal advice and support to our members in Scotland, Northern Ireland and the Republic of Ireland. I also enjoy engaging with our membership by presenting at national conferences and providing teaching sessions to help doctors reduce their medicolegal risk profile.

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