Legal advice: What is presumed consent for organ donation?

Prime minister Theresa May has announced a public consultation on switching to presumed consent for organ donation in England. Legal expert Marc Cornock explains what this change would mean

In a health context, consent must be obtained from anyone capable of giving it before a procedure can be performed. Specific processes exist where someone is unable to give consent, either because they are a minor or lack the capacity to do so.

Presumed consent is the opposite of the normal consent process. Rather than having to obtain consent to perform a procedure on a patient, it is presumed that the patient has consented unless they expressly state otherwise.

Organ donation is the only procedure that currently uses the principle of presumed consent. Countries which have such a model include France, Israel, Norway, Spain and ­– since December 2015 – Wales.

With a presumed consent model, in the event of the accidental death of an individual over the age of 18, it is presumed they would want their organs to be donated.

The right to opt out

At present, England operates an opt-in organ donation system, where those who want to donate their organs for transplant after death have to register their wishes with the NHS Organ Donor Register.

Where someone has not registered their wish, their nominated representative or a qualifying relative can make a decision on their behalf after death. If an individual has not registered with the Organ Donor Register, or a relative has not given consent, the organs cannot be removed for transplant.

In her speech to the Conservative party conference in October, the prime minister announced that a 12-week public consultation would begin by the end of the year on moving to a system of presumed consent for organ donation in England.

One of the arguments in favour of this model is that it will increase the number of organs being donated, as they can be legally taken without obtaining further consent from the individual’s relatives.

Everyone has the right to opt out from the presumption of consent by registering their objection. This system presumes that people are fully informed of this, and that they understand they must register their objection if they do not want their organs to be removed for transplantation.

Marc Cornock is a qualified nurse, academic lawyer and senior lecturer at the Open University

Further information

To find out more about organ donation go the NHS Blood and Transplant website