Following a change in the organ donation rules introduced on 20th May 2020, the UK now operates what is known as an ‘opt out’ system. This means that consent for the use of organs and other tissue is presumed for UK resident adults unless the potential donor has registered a specific wish not to have their organs used, has made it clear to family or friends they are against donation or come within a group excluded from donating. The rationale behind the rule change is to increase the pool of eligible donors and in turn, the number of organs available for transplant.

The rules apply to what is referred to as routine organ donation. More advanced procedures, generally for the purpose of medical research, still require specific consent. It is also possible to appoint a representative to make the decision for you and to record that decision on the NHS Organ Donation Register.

Individual Choice

The underlying position remains the same as before in that individuals still have a choice about whether their organs are donated or not. The shift in emphasis is in the requirement that those not in favour of donation take some active step to make that choice known. This can be done by recording formally the decision on the Register or making their position clear to those close to them. In the absence of a clear expression of feeling against donation, the rules act in favour of organ donation.

Opting Out

An ‘opt out’ system allows for a persons wish not to donate to be recorded on the NHS Organ Donation Register. A person can also positively ‘opt in’ via the same process. This is an online record of the details of persons who have registered a view.

Where a person records an ‘opt out’ decision, which makes clear their choice not to donate organs and other tissue on death, that decision is stored in the Register and will be respected at the time of death. This places the onus on those who have a strong view against donation to put it on record.

Views of Family

The ‘opt out’ system does not mean that the views of family member are not canvassed at all. Families are generally always consulted by doctors before organ donation is undertaken, recognising the upset that may be caused. Most importantly this is because the view a person takes might change and the decision recorded on the NHS Organ Donor Register, may not be the most recent decision. Where family members are themselves against organ donation, but the person concerned has made clear their support for it, then they cannot overrule the wishes expressed.

However, even where there is no recorded decision in favour of donation, the opinions of friends and family will still be sought by medical staff. Where those close to the donor confirm that they were firmly against donation that will be respected.

Excluded Persons

The other persons whose organs will not be subject to the presumed consent are those in any of the excluded categories. Excluded persons are:

  • children (those under 18 years of age)
  • those lacking the mental capacity to make an informed decision
  • persons who have lived in the UK for under a year before death
  • temporary visitors to the UK not ordinarily resident here

This makes perfect sense in that those not generally living under UK laws or those not having sufficient maturity or capacity to make this important decision, are not subject to the presumption they agree. But of course, the organs and tissue of children are donated, and this will be with the approval of the parents.

Faith and Religious beliefs

When a person registers a decision on the NHS Organ Donation Register, there is an opportunity in the online form to state whether there are any faith-based considerations which need to be taken into account. The donor can also request that doctors speak with their family about how organ donation can go ahead in a way that is compatible with the faith or belief system. None of the main recognised religions are against organ donation in principle. Most faiths regard the issue of donation as a matter of individual freedom to choose. The NHS has a stated commitment to respecting the faith or belief system of the deceased and takes into account any impact of it when approaching the issue of organ donation.

Conclusion

The shortage of available organs and the consequent transplant waiting lists prompted the UK Government to act. The emphasis of the rules on organ and tissue donation has shifted the balance toward deemed consent. Every eligible adult will be presumed to consent unless they have opted out, made clear they do not want to donate, are excluded or have left the decision with an appointed representative.

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