August 2018 – Opting in? Organ donation and/or Anatomical Research

Author: Mitchells Roberton
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Proposed “opt-out” system for organ donation

  • In June the Human Tissue (Authorisation)(Scotland) Bill was introduced to the Scottish Parliament. The main purpose of the Bill is to introduce a soft “opt-out” system of organ donation for the purposes of transplantation.
  • The current law provides that organs can only be donated by someone if either the person has authorised donation before death or if their nearest relative authorises the donation on their behalf – this is known as an “opt-in”‖system.
  • The Bill will provide a new, additional category of “deemed authorisation”‖which will apply to most adults who have not otherwise explicitly opted in or out of donation via the Organ Donation Register, or who have not otherwise recorded an explicit decision about donation for transplantation.
  • This would mean that where the person was not known to have any objections to donation the assumption would be that the donation could proceed. As well as retaining the legal basis for individuals to explicitly opt in to donation, the Bill will also provide a legal basis for an explicit declaration of non-authorisation or “opting out”.
  • Instead, this update simply outlines the current system for (1) organ donation on the one hand, and (2) the bequest of a deceased’s body for “anatomical examination”/medical research on the other hand. Whilst the two are related, and may overlap to an extent, they are nevertheless distinct concepts.

The current system for organ donation 

The key legislation here is the Human Tissue (Scotland) Act 2006. This provides that:

  • Anyone aged 12 and over, who is able to make their own decisions, can give permission for their organs to be donated.
  • If you want to donate organs this will take priority over any wish you might have to leave your body for “anatomical examination”/medical research.
  • A person’s own decision is the most important thing. A relative does not have the right to change this decision after the person has died.
  • At present, in order to become an organ donor, a person must express a wish to be a donor. This is commonly known as “opt-in” system.

The ways in which you can express your wishes to opt-in include:

  • Joining the NHS Organ Donor Register. The NHS Organ Donor Register is the national, confidential list of people who are willing to become organ donors after their death. This list is maintained by “NHS Blood and Transplant”.
  • Telling your closest relatives or friends.
  • Carrying a donor card.
  • Writing it in a letter or document such as your Will.

As to recording your wishes in e.g. your Will, the Organ Donation Scotland’s website advice is as follows:

“You can [put your wishes in your Will], but it’s better to join the NHS Organ Donor Register and make your friends and family aware of your wishes. By the time your Will is read [after your death] it is likely to be far too late for you to become a donor, as organs need to be removed very soon after death… 

This is why it’s so important to let those closest to you know your wishes and to record them on the NHS Organ Donor Register.” 

The current system for leaving your body for “anatomical examination”/medical research

  • You might alternatively – or additionally – wish to leave your body for medical research. If you do both then the wish for organ donation will, in principle, take priority.
  • The key legislation here is the Anatomy Act 1984.
  • If you wish to leave your body for medical research it makes sense to provide for that in your Will. But, in practice, that is unlikely to be enough.
  • The recommendations here are that you (1) discuss your wishes with your next of kin, (2) contact the anatomy department of whichever of the following five Universities is closest to your home: Aberdeen, Dundee, Edinburgh, Glasgow or St Andrews University (e.g. for Glasgow the link is: https://www.gla.ac.uk/schools/lifesciences/anatomy/bodydonation/)  and get a “declaration of bequest” application form and complete, sign and return this to the University in question and (3) record your wishes in your Will. 

Note: This material is for information purposes only and does not constitute any form of advice or recommendation by us. You should not rely upon it in making any decisions or taking or refraining from taking any action. If you would like us to advise you on any of the matters covered in this material, please contact Laura Burns: lcb@mitchells-roberton.co.uk

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