Presumed consent to organ donation: Wales

Of the measures initiated by the Welsh Assembly Government, the presumed consent for organ and tissue donation within the Human Transplantation (Wales) Bill is the most radical and possibly the most controversial.  The consultation took place between 18 June and 10 September and published with the Consultation Document were copies of the Draft Bill and Draft Explanatory Memorandum and Regulatory Impact Assessment.  The Bill is wide in its ambit, addressing the ‘removal, storage and use of human organs and tissue for the purpose of transplantation; and for connected purposes’ and apart from certain exceptions, everyone living in Wales is deemed to be a willing organ and tissue donor when they die, unless they have made other recognized provisions.  However, the BBC has recently reported that the proposed legislation has attracted opposition from within the Jewish and Muslim communities.  Similar concerns have also been expressed by the Church of England in respect of a similar, but little-publicized initiative by NHS Blood and Transplant (NHSBT).  This will be the subject of a later post.

Comment: Principles v Practice

The issues at stake concern the practical considerations of organ donation rather than the principle.  Subject to certain provisions, most faiths do not object to organ donation and a number positively encourage it. Prior to his election to the papacy, Cardinal Joseph Ratzinger was known to carry an organ donor card, although this is now inapplicable.

Earlier this year, the Archbishop of Wales joined leaders of the Roman Catholic Church in Wales, Church in Wales and Wales Orthodox Mission in urging the Welsh Government to revisit its policy process, here.  Their joint statement indicated their ‘profoundly commitment’ to human dignity in life and death, and stated

‘Our main concern is that the positive ethos of donation as a free gift is being endangered by an ill-judged if well-intentioned proposal to move from voluntary donation to presumed consent.’

There were similar sentiments to those expressed recently; and in addition the director of Cardiff’s Islamic Social Services Association, and a member of the Muslim Council of Wales, stated that whilst he had no objection to presumed consent, his main concern was based upon the definition of brain death in Islam.

During the year, in addition to the Consultation on the proposed legislation, the Government also conducted a Baseline Survey on Public Attitudes to Organ Donation.  The latter indicated that 49% of the sample were in favour the proposed ‘soft opt-out’ scheme, and 22% were against.

The ‘soft opt-out’ scheme means that people will be given the opportunity to formally ‘opt out’ of organ donation by placing their name on a register. If they choose not to do so, having had the opportunity, then this will be treated as a decision to be a  donor, and one which families will be sensitively encouraged to accept.

However, the formal consultation yielded 2,891 responses, 2,395 of which were recorded as ‘religious, humanist or ethical interests’ with answers to each of the questions classified as ‘did not answer the question directly, and may instead have chosen to make a comment’.

Comment: Whitehall v Cardiff

In July BBC reported that during the course of discussions on devolved powers, including plans to introduce the presumed consent law for organ donation, UK officials had warned the Welsh Government that this area was a legal ‘minefield’. The sensitivity of the issue is indicated by the 14 months it took for the information to be released to BBC Wales and the necessity of making a complaint to the Information Commissioner.

As I reported in my column in Environmental Law and Management, the (UK) Attorney General made a challenge in the Supreme Court to the Local Government Bye Laws( Wales) Bill which was passed by the Welsh National Assembly on 3 July 2012.  The argument put forward was that in addition to removing the involvement of Welsh ministers in the making of bye-laws, the Bill also takes away part of the powers of the Welsh Secretary in Westminster, which goes beyond the powers given to the WAG by the ‘Yes’ vote in the referendum, and is consequently unlawful.

A further challenge to the legislative competence of the WAG has been averted as the Attorney General has now announced his intention not to take the Official Languages Bill to the Supreme Court.  This too had been passed by the WAG, and provides that English and Welsh will be given an equal footing in the Welsh Assembly.

A decision is expected ‘before Christmas’, but if the Supreme Court rules against the WAG, other Bills such as the ‘deemed consent Bill’ will be at risk.  A detailed analysis of the challenge has been made by Alan Trench, here and here