Chief Medical Officer (CMO) Sir Liam Donaldson
thrust the subject of organ donation into the headlines yesterday,
arguing that organs should be routinely taken without explicit
consent unless the deceased has explicitly chosen to opt out of
being a donor.
As Ben Troke, health law expert at Browne
Jacobson, points out, the shortage of organs is a problem which is
not improving. There are currently 7,304 people on the UK
transplant list, and sadly these patients are dying at a rate of
more than one a day while they wait.
At the same time, as the British Medical
Association points out, “every year… bodies are buried or
cremated complete with organs that could have been used to save
lives.”
Objection to donation is not the root of the
problem: opinion polls have consistently shown that 70-90% of
Britons are willing to donate organs after death. Yet only 23% of
the population are signed up to the Organ Donor Register.
At the heart of the matter is the issue of
consent. In the wake of the Alder Hey scandal, when children’s
organs were taken without consent, the Human Tissue Act 2004 came
into force in September last year, emphasising the importance of
consent. The principle remained that there should be no donation
without explicit consent.
The Act allows for a nominated representative
to make donation decisions on a deceased’s behalf, and also
introduced a statutory checklist of those in a "qualifying
relationship" who can consent to organ donation if the deceased did
not express a view.
The CMO has proposed a fundamental change in
law, suggesting legislation to presume consent unless the deceased
has opted out.
This may take the form of a “soft” opt out, in
which the family’s view may be taken into account, or a “strong”
opt out, where only the deceased's registration of their own
objection through a central NHS database is sufficient.
Ben points out that the issue of presumed
consent is likely to throw up a series of ethical dilemmas to be
taken into consideration:
- Can consent really be “presumed” – or is this in reality matter
of donation without consent?
- How informed are the public about the organ donation process
they will be presumed to consent to?
- The CMO’s proposal appears to prioritise the social interest in
availability of donor organs over that of the individual to control
what happens to their body after death.
- However, other interests may need to be taken into account,
such as the individual needs of patients waiting for transplants,
the deceased's family's wishes, and the efficient use of healthcare
resources: kidney dialysis costs around £21,000pa, compared to a
one-off £4,700 for a kidney transplant.
- Presumed consent may be incompatible with certain cultural,
moral or religious views.
- Some may oppose outright any clinical intervention without
explicit consent, and see the CMO’s proposals as a ‘thin end of the
wedge’.
The ethical debate will no doubt roll on, but
in the meantime, it is clear that the Human Tissue Act 2004 leaves
the underlying organ shortage problem unresolved.
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