In response to a recent enquiry from a client, Tessa Shellens sets out below the current position regarding organ donation in England and Wales.
“In terms of donation of an organ at death, the current law was clarified by the Human Tissue Act 2004 (albeit it has been recently amended in Wales under the devolved powers). The position in England is that organs can only be removed on death if the donor has expressly consented prior to death. Express consent can either be given by the potential donor joining the NHS Organ Donation Register or by him telling a relative or close friend about the wish to donate at the time of his death.
When clinicians consider that at the time of an individual’s death that there may be organs suitable for donation, then a check will be made with the Organ Donation Register and if there is no entry then clinicians will try to check with family members whether any wish to donate has been expressed.
To ensure that the wish to donate is evidenced and indeed to save any uncertainty at the time of death, a potential donor is best advised to register on the NHS Organ Donation register which is available on-line. An entry would constitute the necessary evidence of express consent. The consent can subsequently be amended or withdrawn at any time. The entry on the Register would be conclusive evidence of consent having been expressly given. An entry is only valid when it is made by a person with the mental capacity to understand the implications of the decision which is being made. There is a very helpful website www.organdonation.nhs.uk which gives more information and registration can be completed online via this site.
In terms of the entry which is made on the Register, the donor can specify the organs which he consents to being transferred. In terms of a donation at the time of death, the law does not however allow the donor to specify that the donation can only be used to the benefit of a certain individual or group of individuals. The recipient of the donation is determined on the basis of a judgement as to a clinical need.
There are of course circumstances where a live donation can be made e.g. for transfer of a kidney between close relatives. In the case of a living donation, the donor can specify how it is to be used. The Human Tissue Act 2004 requires a rigorous consent process to be followed at the time of donation to make sure the donor understands the implication of the decision.
In Wales the law has been amended so that, from the 1st December 2015, the presumption of assumed consent to donations at the time of death will be introduced. This means that in the absence of any express formal opt out made by an individual on the Donor Register, the individual will be deemed to have no objection to organs being donated. The law applies to any adult with capacity who had been resident in Wales for more than 12 months.
However the current law in England remains the same and a donation can only be made where the donor has expressly consented.”
Bates | Crellins Carter | Wallis Prance solicitors are able to provide up to date advice on all our practice areas of law. To make or update your Will to include clauses relating to organ donation whether for human transplant or to be used in medical science contact our Private Client department for expert advice.