Presumed consent to organ donation: UK

A recent post reviewed the Welsh Assembly’s Human Transplantation (Wales) Bill and, provided the Attorney General’s challenge in the Supreme Court is resolved, will change the procedure for organ donation for all those living in Wales.  However, whilst its ‘Baseline Survey’ on Public Attitudes to Organ Donation indicated that 49% of the sample were in favour the proposed ‘soft opt-out’ scheme and 22% were against it, the formal consultation was dominated by essentially negative responses based on a template produced by the pro-life organization, the Society for the Protection of Unborn Children, (SPUC).

NHS Blood and Transplant, (NHSBT) is ‘a Special Health Authority in England and Wales, with responsibilities across the United Kingdom for organ donation and transplantation’ whose 2012-17 strategic plan includes

‘delivering the 50% growth in deceased organ donation by 2013 that was targeted by the Organ Donation Taskforce, (ODTF), whilst bringing stakeholders together to identify the strategy and aspirations for organ donation and transplant in the UK beyond 2013’.

NHSBT has recently consulted on how these targets might be delivered, and the Mission and Public Affairs Council of the Archbishops’ Council has issued a response on behalf of the Church of England, based upon this consultation and the background paper, ‘Organ Donation and Transplantation Strategic Objectives to 2016/17: Portfolio of Evidence’ (2012).

In contrast to the Welsh Assembly’s Bill, the NHSBT Consultation is related to policy options, which if progressed will require changes to be made to the Human Tissue Act 2004 before it can become law.

Comment        

There was general consensus on the principle underlying the Human Transplantation (Wales) Bill which is reiterated in the MPA response.  Written in a more generalized form

‘[the faith group has] a mandate to heal, motivated by compassion, mercy, knowledge, and ability. . . . . . . .[Its] tradition both affirms the  . . . . . . value of human bodily life and the principle of putting the needs of others before one’s own needs,’

this clearly has broad applicability.  However, the NHSBT proposals are more far-reaching than those in Wales, and include:

  • changing the system to presumed consent unless a person has ‘opted out’;
  • withdrawing life-sustaining treatments earlier in critical-care units and emergency departments; and
  • making people on the organ-donor register priority recipients for organs.

Thus the single issue of principle in the Welsh Bill therefore has been extended beyond whether and how consent for organ donation is given, to include whether changes are made to aspects of immediate pre-death care.

MPA notes that there are five issues which have major ethical, social or legal implications:

  • Changes to the consent system for organ donation, either to presumed consent unless a person has ‘opted-out’ of the Register, or to mandated choice in which people make decide whether or not they want to be organ donors ;
  • The targeted engagement programme with Black, Asian and Minority-Ethnic communities and the councils where they live;
  • A review of the end-of-life protocols that conflict with the possibility of organ donation, particularly in the case of early withdrawal of life-sustaining treatments in critical care units and emergency departments;
  • A review of the ethical, legal and professional acceptability of so-called elective ventilation’ (i.e., intubation and ventilation of a gravely ill patient whose death is inevitable in order to promote donation after brainstem death)’; and
  • Giving persons who have signed up to the Organ Donor Register priority with regard to the receipt of an organ when subsequently require a transplant’

The MPA response argues that ‘the shift to an opt-out system would represent a “major intrusive shift in the state’s relationship with its citizens”, for which an “overwhelming case” that “does not, as yet, exist” would need to be made.  It suggests more could be done to make more effective use of the 19 million potential donors already listed, including more consistent testing of brain death, greater referrals after cardiac death, and getting specialist nurses to approach families to secure consent. Individual consent, which would override family consent, could also be strengthened.’

On the matter of end-of-life protocols, MPA stresses that the principle, that doctors must act only in what they consider to be a patient’s best interests is breached, if priority is given to listed donors.  An important corollary of this suggestion that seems to have been overlooked is how the Organ Donor priority would work given the known, marked disparity between donor rates and transplant needs among minority ethnic communities.  As a consequence of these two factors, members of minor ethnic communities requiring transplants would, on average although not individually, be less likely to become recipients of donated organs.

Summary

In essence, the issue to be addressed is that within the UK there are about 1,000 deaths per year – or three deaths per day – because of a shortage of organs, according to NHS Blood and Transplant data as accessed by the BMA on 1st February 2012.  The options for reducing include one or more of the following:

  • Increasing the number of organ donors through changing from the current ‘opt-in’ arrangements to some form of ’opt-out’;
  • Making more efficient use of the 18.9M people currently on the Organ Donor Register in the UK (equal to 29% of the total population, and approximately 40% of the population over 16);
  • Making changes to the clinical conditions under which organs may be legally obtained.

The Welsh legislation addresses only the first option, and depending upon the legislative implementation of the NHSBT proposals, may or may not introduce ‘opt-out’ criteria that are specific to the Principality.  The NHSBT proposals on the other hand include all three options.

The NHSBT aims to produce a new strategy by April 2013.  However, its implementation would be dependent on the modification of primary legislation and, presumably, another consultation.

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