Organ donation law set to change to opt out system

Organ donation will be moving to an 'opt out' system in 2020.

The change in legislation means that adults in England will be regarded as potential organ and tissue donors when they die unless they chose to opt out of donating or are excluded. The aim is to save and improve more lives and reduce the number of deaths of patients who are waiting for a transplant.

Doctors may be asked about the implications of the new legislation for patients and their families and we set out the main changes here.

The Organ Donation (Deemed Consent) Bill received Royal Assent on 15 March 2019 and is now an act of parliament. This change in legislation has also been referred to as Max and Keira's Law.

The Act amends the Human Tissue Act 2004 in relation to 'appropriate consent' after a person dies. There will be no changes in the law relating to living donors.

When the changes take effect, adults in England will be considered to have agreed to be an organ donor after they die unless they have recorded a decision not to donate or are in one of the excluded groups. Those groups include:

  • under 18s who can register their preference, but whose parents will still be asked to consent on their child's behalf
  • people who lack mental capacity to understand the new arrangements
  • anyone who has lived in England for less than 12 months or who is not living in England voluntarily.

Once the new system comes into effect, if a person hasn't expressed a preference, it will be considered they consent to their organs being donated. If a person wants to donate some but not all organs, they should register as a donor where they can then specify their wishes.

You may want to advise patients to ensure they inform their family of their wishes as this may be taken into account if they have not registered their decision and there is a dispute about their desire to be a donor.

Deemed consent will not apply if certain relatives such as a partner, close family member or a long-standing friend, provide information that would lead a reasonable person to conclude that the deceased would not have consented to being an organ donor.

The act will not apply to all organs. Those excluded will be specified in the Regulations, which are due to be published by the Secretary of State, and will cover transplants that are currently rare.

This guidance was correct at publication 11/10/2019. It is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.

Dr Kathryn Leask

by Dr Kathryn Leask BSc (Hons) MBChB (Hons) LLB MA MRCPCH FFFLM DMedEth MDU medico-legal adviser

Kathryn has been a medico-legal adviser with the MDU since 2007 and is a team leader, trainer and mentor in the medical advisory department. Before joining the MDU, she worked in paediatrics gaining her MRCPCH in 2002 and did her specialty training in clinical genetics. She has an MA in Health Care Ethics and Law, a Bachelor of Law and a Professional Doctorate in Medical Ethics. She is also a fellow of the Faculty of Forensic and Legal Medicine and has previously been an examiner and Deputy Chief Examiner for the faculty exam. Kathryn is currently a member of the faculty's Training and Education Subcommittee.

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