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.