We have previously written about the Human Transplantation (Wales) Act 2013, which comes into force on 1 December this year. From then, anyone who dies in Wales having lived there for at least twelve months prior to their death will be deemed to have given consent to be an organ donor, unless they have previously opted out by registering their objection, or unless family members inform the doctors involved that the deceased had objected.
MSP Anne McTaggart has now introduced a Bill proposing a similar system in Scotland. The Transplantation (Authorisation of Removal of Organs etc.) (Scotland) Bill introduces a proxy system, where an individual may appoint a proxy to make decisions about the removal and use of their organs after death. If an individual has not appointed a proxy, then an 'authorised investigating person' (a health professional appointed under regulations) can authorise the removal and use of their organs after death if the individual has not registered an objection to organ donation and their nearest relative is not aware of any unregistered objection.
At this stage the Bill is in draft form and does not yet have the support of the Scottish government. MSPs from each of the parties represented in the Scottish Parliament have supported the Bill, as have several medical organisations. When a similar system was considered last year, Michael Matheson MSP (then Minister for Public Health in Scotland) stated that the Scottish government did not consider that it would necessarily lead to more organs being available for donation.
No change to the current system has been proposed in England, and NHS Blood and Transplant (which arranges donations) has not expressed preference for either opt-in or opt-out. However, the changes in Wales and potentially now Scotland will surely be monitored closely in both Westminster and by commentators more broadly to determine its popularity and, crucially, any impact on donation rates.
The principle of informed consent is a central tenet of healthcare law. While discussions around the risks of treatment are less relevant in donation situations, the importance of bodily autonomy remain the same. Soft opt-out systems work on the basis that individuals are aware that their organs may be used and, if they did not consent to this, they would register an objection. As the Welsh system is implemented it will be interesting to see if any challenges to this interpretation of consent are raised.