Essay question

“The presumed consent system for deceased organ donation in English Law is vastly superior to the former opt-in system.” Discuss.

Outline answer

As a starting point, you might wish to consider (briefly) why organ donation is important. For example, kidney transplantation has been a very effective therapy for people with kidney failure. Not only does kidney transplantation improve quality of life but it is also cost effective. It is estimated that following a kidney transplant overall savings (over ten years) will amount to over £250,000.

Unfortunately the rate of procurement of deceased organs is relatively low in the UK compared with other European countries. You might wish to read “Taking organ transplantation to 2020” which outlines the main recommendations of the Organ Donation Task Force (2008). Some of the recommendations include early testing for brainstem death, increasing the number of transplant co-ordinators, high profile media campaigns and well-supported co-ordination initiatives between domestic and overseas centres to enhance successful organ retrieval and use.

The current system in England for deceased organ donation is a soft “opt-out” system. This means that people who do not wish to donate their organs and tissues must make these wishes known proactively and prior to their death (while they have capacity) and this choice must be registered. Therefore, there is a presumption that organs will be donated after death (‘presumed consent’).

The law on deceased organ donation has been transformed by the Organ Donation (Deemed Consent) Act 2019. Previously, the HTA 2004 only permitted the removal, storage, and use of organs for transplantation if there was ‘appropriate consent’. This could come from the deceased, a person nominated by the deceased to make decisions, or the person in a ‘qualifying relationship’ to the deceased. The assumption is that everyone is willing to donate their organs following death unless they have registered their objections. It brings England into line with Wales (Human Transplantation (Wales) Act 2013). Nevertheless, there are important exceptions to presumed consent. For example, the law applies only to adults. The deceased must have been ordinarily resident in England at least 12 months before their death. The deceased will be not be presumed to have given consent if, for a significant period prior to their death, he or she lacked capacity to understand the new rules. These must be discussed as they potentially limit the utility of the statutory amendment. The new law applies only to organs and materials used in ‘standard’ transplants, such as hearts, lungs, kidneys, and eyes. For more novel transplantations, such as faces, explicit consent is still be required. You will also need to consider potential criticisms of the ‘opt-out’ system. For example, it could be considered to be discriminatory. Not everyone who objects to donation is likely to register their objections, possibly due to apathy. Those who are vulnerable, or less educated, might not be able to object because of lack of knowledge or understanding. Opt-out regimes are based on the assumption that most people would act altruistically and would wish to donate their organs after death. Several countries, such as Belgium, Austria and Spain, use an opt-out system and have considerably increased the supply of organs. Some soft opt-out systems permit relatives to override the policy if they object in situations where the deceased has not recorded an objection. Under those circumstances, organ donation cannot proceed. In ‘hard opt-out’ systems, relatives’ wishes do not override policy and organ donation can proceed. You could also consider the ethics of opt-out systems. For example, would everyone wish to act altruistically? Are there other specific beliefs and wishes that the deceased may have had that should be taken into account? Is a soft opt-out system preferable to a hard opt-out system in that there is at least some power that relatives may exert if they object to organ retrieval from their deceased loved one?

Both systems described are based upon a willingness for organ donation to proceed, either through actual consent (or authorisation), or presumed consent, of the deceased and/or endorsement by relatives (in the opt-in and soft opt-out systems). Remember that there are alternative sources of organs (living donation and xenotransplantation (organs obtained from animals) although to date the latter has had a relatively small part to play. The developments of medical technology are now producing artificial organs and it is possible that within a few decades, artificially produced organs might dominate the scene meaning that there will be less need for voluntary human donation. Remember to support your answer with reference to the academic literature. Finally, remember to provide a conclusion to your answer, linking this back to the essay question.