Organ Donation

Organ transplant, as a result of organ donation, saves ‘thousands of lives’ every year in the UK and ‘greatly enhances’ the lives of those who receive them. At the beginning of 2021, there were 5,073 people waiting to receive a transplant in the UK, and 2,258 people who had received a transplant since April 2020, according to the organ donation website – you can find the most recent statistics here. From these statistics it’s clear that organ donation is essential for saving and improving the lives of people requiring organ transplants. 

Across the UK, the law around organ donation differs; to be able to confidently and correctly discuss organ donation within the UK it’s important that you’re aware of the law in each of the devolved nations. The following is a brief overview of the law around organ donation in the UK.

England

• Organ donation in England is now an ‘opt out system’.
• This is a recent change which became law on 20 May 2020 (you can find a timeline of the events leading to this change on the organ donation website).
• It is also referred to as ‘deemed consent, presumed consent or Max and Keira’s Law’.
• It’s known as Max and Keira’s Law in honour of Max, who received a heart transplant and campaigned for organ donation, and Keira, who was Max’s heart donor. 
• The opt out system means that all adults ‘will be considered to be in favour of donating their organs and tissues after death’ unless they register that they do not want to, they appoint a representative to decide for them, or they are part of the ‘excluded groups’ (see below).
• The following are exemptions or ‘excluded groups’: ‘children under 18; people who lack the mental capacity to understand the changes for a significant period before their death; people who have not lived in England for at least 12 months before their death’. 
• As always, family members will still be consulted before donation takes place, to ensure that an individual’s decision is honoured, even if they have not registered to ‘opt out’. 
• You can find out more on the organ donation website and the following government publications: ‘Opt-out organ donation: Max and Keira's Bill passed into law’ and ‘Organs and tissues to be excluded from the opt-out organ donation system – quick read’.

Wales

Scotland

• As of 26 March 2021 organ donation in Scotland will become an opt out system.
• Again, the opt out system will mean that any adult who doesn’t register to opt out of donation ‘will be deemed to have authorised donation for the purposes of transplantation’.
• Similar to the law in England, there will be the following excluded groups: ‘adults without capacity to understand deemed authorisation, adults resident in Scotland for less than 12 months and children under the age of 16’. 
• Donation, as well the tests required as part of the process, will always be discussed with family members before they are carried out, to ensure that an individual’s wishes are fulfilled. 
• You can find out more on the organ donation website and the government website. 

Northern Ireland

• Organ donation in Northern Ireland is currently an opt in system.
• An opt in system means that individuals must join the NHS Organ Donor Register if they wish to donate their organs and tissue after their death.
• The Department of Health in Northern Ireland launched a consultation on 11 December 2020 ‘to consult the public about proposals to change the current system of consent for organ donation in Northern Ireland’. The proposal is to change the current system to an ‘opt out’ or ‘deemed consent’ approach. The consultation will run until 19 February 2021.‍
• It’s advisable to follow this as it develops, so you’re aware of the situation and able to discuss this, should you be asked during your interview about Northern Ireland specifically or organ donation more generally. 
• You can find out more on the organ donation website, organ donation NI and the Department of Health website.

Ethical considerations & wider issues

As outlined above, England, Wales and Scotland all adopt a ‘deemed consent’ or ‘opt out’ system for organ donation. With Northern Ireland now consulting on the introduction of an ‘opt out’ system, all of the UK could potentially be using this approach within the near future. 

The following are wider issues relating to organ donation and the ethical implications of an opt out system:

The number of organ donations

As mentioned above, the organ donation website provides statistics on the number of people waiting for an organ transplant, along with the knowledge that ‘every day across the UK, someone dies waiting for a transplant because of a shortage of organ donors’. Combined with the fact that ‘80% of people in England support organ donation but only 38% [...] opted in’ under the opt in system, it’s clear that the demand for organ transplants and the support for organ donation did not match the number of people registered to donate under the previous opt in system in England. Therefore, does an opt out system combat this problem, allowing those who wish to donate their organs and tissue to do so without the need to register?

An individual’s right to autonomy

In contrast, an opt out system raises the ethical issue of an individual’s right to autonomy and the question of whether an opt out system, which offers an individual the option to register that they do not wish to donate their organs and tissue, is sufficient for gaining consent to donate. To develop your understanding and support you in your interview, you may wish to research this further, to explore the ethical implications of a ‘deemed consent’ system for organ donation. The following responses from key medical organisations may be a useful starting point for your research: 

• The British Medical Association (BMA) – ‘Organ Donation’. 
• The General Medical Council (GMC) – ‘GMC response to The Department of Health consultation on ‘Introducing ‘opt-out’ consent for organ and tissue donation in England’.

Family support / consent

Although failing to ‘opt out’ is deemed consent under English, Welsh and Scottish law, ‘family’s support is needed for organ donation to go ahead’; this is positive for protecting individual consent, as it means that families can follow their wishes and give or refuse consent regardless of whether they opted out or not. However, this can be problematic when a family is unsure of what their wishes were, and therefore requires individuals to discuss the subject of organ donation with their family. 

The organ donation website states that 'fewer than half of families agree to donation going ahead if they are unaware of their loved one’s decision to be a donor [...] this rises to over nine out of 10 when the decision to be an organ donor is known’.

Consider how, if possible, individuals and families could be supported and encouraged to discuss organ donation, with the aim of improving the number of families who subsequently consent to organ donation for their loved ones.

Further research

As previously mentioned, ensure that you are familiar with organ donation laws across the UK, including being up-to-date on the Northern Ireland consultation. To support you, refer to the websites listed for each of the devolved nations, as well as the organ donation website. 

There has been much debate regarding ‘opt out’ organ donation, which you may find useful to explore further, to understand the arguments for and against its introduction in England, Wales and Scotland, and potential introduction in Northern Ireland. You may wish to consider how this has been covered in the mainstream media and in medical articles, as well as the response from medical organisations. 

In relation to this, you may find it useful to explore the impact of the opt out system in Wales, given that this has been law since 2015, and, therefore, there are statistics available to evaluate this. As a starting point, the organ donation website published an article in December 2020, outlining the Welsh Health Minister’s view on the impact of the opt out system in Wales after five years.