By Malak Tamer
Consent to organ donation in England was transformed by the Organ Donation (Deemed Consent) Act 2019 (ODDCA 2019).[1] Prior to the Act, individuals were required to ‘opt-in’ and register their status as organ donors. However, the ODDCA 2019 implemented a system of presumed consent where the law assumes all adults consent to organ donation provided there is no evidence to the contrary. The introduction of an ‘opt-out’ organ donation regime is ethically contentious due to its implications on the doctrine of consent. This article explores the extent to which presumed consent in organ donation is valid and whether the ODDCA 2019 appropriately balances policy objectives with individual autonomy.
Issues with Presumed Consent
The primary concern with presuming consent to organ donation is that it bypasses the requirements of legally effective consent. As clarified by Montgomery v Lanarkshire [2015], consent in a medical context must be informed, voluntary and procured via a shared decision-making process.[2] Presumed consent as constructed by the ODDCA 2019 does not conform to these requirements; the Act assumes that all adults with mental capacity consent to organ donation despite not proactively expressing informed and voluntary consent. The desires of individuals whose organs will eventually be harvested are effectively made redundant provided there is no evidence of objection to organ donation. As such, the move to an ‘opt-out’ regime can be seen as an expansion of arbitrary state power over individual liberty. [3] This is inherently problematic as it breeds mistrust in the organ donation system. Without public confidence in transplantation procedures, the efficacy of the system is diminished.[4]
Addressing Concerns through the ODDCA 2019
Although presumed consent can be construed as eroding the doctrine of consent, the ODDCA 2019 has mitigated its adverse effects. It is important to note that the Act does not make organ donation mandatory; presumed consent may still be withdrawn. Individual autonomy is thus still respected through still providing a choice.[5] An ‘opt-out’ system simply shifts the default assumption of the state and refusal is required to rebut that assumption, but the choice to refuse remains available.[6] Once refusal has been registered, that decision will not be questioned. As such, the ODDCA 2019 utilises the mechanism of presumed consent to meet the public policy aim of increasing the availability of donor organs without compromising the freedom to choose.
The ‘opt-out’ model has proven successful in countries like Spain, which utilises presumed consent and has the highest organ donor rate in the world.[7] The ODDCA 2019 aims to mimic Spain’s model and thereby alleviate the UK’s struggle with scarcity of organs, which kills several hundred patients annually.[8] Presumed consent tackles the unavailability of donor organs and is an adequate response to a public health concern.
Conclusion
Whilst the operation of presumed consent in organ donation raises concerns surrounding the doctrine of consent, the ODDCA 2019 has incorporated it such that individual autonomy and public health are adequately balanced. Presumed consent in the UK maintains an individuals’ ability to choose whether to become a donor or not whilst increasing the number of available organs for transplantation. Of course, the challenge of building a robust organ donation system in the UK is not immediately achieved through presumed consent. However, it is made easier through the ODDCA 2019 in an ethical manner.
[1] Organ Donation (Deemed Consent) Act 2019, s 6b [2] Montgomery v Lanarkshire Health Board [2015] UKSC 11 [3] Neil Manson ‘Normative Consent Is Not Consent’ [2013] Cambridge Quarterly of Healthcare Ethics 22 [4] Jonathan Montgomery ‘Reflections on the Nature of Public Ethics’ Cambridge Quarterly of Healthcare Ethics 22 [5] David Shaw ‘The side effects of deemed consent: changing defaults in organ donation’ (2019) Journal of Medical Ethics 435, p 436 [6] ibid. [7] Veronica English ‘Is Presumed Consent the answer to organ shortages? Yes’ 2007 BMJ 1088 [8] ibid.
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