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Organ Donation: The New Law

28 February 2019. Published by Emma Kislingbury, Senior Associate

An "opt-out" system for organ donation is expected to come into effect in England next year after passing the final parliamentary vote this week.

In our blog last year, we looked at the Government consultation on organ and tissue donation, which aimed to find out what the public thought about a proposed new "opt-out" donation system.


Earlier this week, that proposal became a reality, after the new law passed its third reading in Parliament (the final stage before receiving Royal Assent).


Max and Keira's Law


The Organ Donation (Deemed Consent) Act, which will be called Max and Keira's Law, is named after Max Johnson, who underwent a heart transplant aged 9, and Keira Ball, who, at the same age, tragically passed away following a car accident. Keira's organs saved 4 lives, including Max's.


What will change?


Currently, in England, the organs of a person who has died can be used only if that person consented when they were alive, usually by registering as a donor.


The new system, which is expected to come into effect in Spring 2020, will

mean that consent is presumed, unless someone has chosen to opt out (or they fall within an exempt group). It will be a "soft opt-out" system however, and families will still have the final say on donation; this means they could potentially overrule their relative’s wishes to donate or to opt out.


The Potential Impact


The British Heart Foundation (the "BHF") reports that there are currently more than 6,000 people on the NHS waiting list for transplants and that every day, 3 people die whilst waiting for an organ.


It is hoped that the change in the law will lead to many more organs being donated and lives being saved every year. 


Other countries, including Wales, Spain, Croatia and Portugal are already operating opt-out systems, with Spain having the world's highest rates of organ donation. Wales, where a presumed consent system has operated since December 2015, has the UK's highest with a 75% donor consent rate (compared to 58% in 2015). Scotland is currently considering its own opt-out system after a Government consultation found that 82% of the public was in favour.


What Next?


Whilst acknowledging the passing of Max and Keira's Law as a "historic moment", the BHF identifies that it needs to be supported by investment in training, education and resources.


In our blog last year, we touched on how difficult it can be for grieving families to accept a loved one's decision to donate. The role of specialist nurses who facilitate formal family discussions around organ donation is vitally important, to ensure that professional support is available at such challenging times.


It is also really important for family members to have open and transparent discussions with one other about their own wishes. Government statistics show that under the current system, families are significantly more likely to support the donation of a relative's organs or tissue if they know what that relative's views were.


It is hoped that the new system will lead to an increased donor consent rate in England, similar to what we have seen in Wales; with Max and Keira's Law providing a lifeline for many more patients.