On 1 December the Human Transplantation (Wales) Act 2013 came into full effect, making Wales the first country in the UK to introduce an opt-out system for organ and tissue donation.
How has the law changed?
Before 1 December the organ donation system relied on individuals giving their express consent to the donation of their organs, such as by registering on the NHS Organ Donor Register. If an individual had not given their express consent, their next of kin would be asked to make a decision about organ donation following the individual’s death.
Following the introduction of the Act, people living in Wales have three options:
- If they want to be an organ donor, they can either register to be a donor (opt-in) on the NHS Organ Donor Register or do nothing.
- If they do nothing, it will be presumed that they have no objection to donating their organs. This is known as ‘deemed consent’.
- If they do not want to be a donor, they can register not to be a donor (opt-out) on the NHS Organ Donor Register.
Soft opt-out system
The new organ donation system is known as a soft opt-out system, rather than a hard opt-out system. This soft opt-out system means that consent is deemed to have been given unless the deceased objected during their lifetime, but the family will still be involved in the decision-making process. The family will be involved in discussions both to provide information about the person’s residency and medical history, as well as to say whether they knew that the deceased person had an objection to organ donation. If the deceased person did have such an objection, organ donation would not go ahead. However, an objection must be based on the known views of the deceased, rather than the views of the family. If family members cannot be contacted, the organ donation will not go ahead.
NB: In a hard opt-out system families would not be consulted about organ donation if consent were expressly given or deemed to have been given.
Who will be affected by the new organ donation system?
The organ donation opt-out system will apply to all adults who have lived in Wales for more than 12 months, who die in Wales, and have not registered a decision on the NHS Organ Donor Register.
‘Deemed consent’ will not automatically apply to:
- Those who die outside of Wales, even if they normally live in Wales.
- Children and young people under 18.
- People who have lived in Wales for less than 12 months.
- Visitors to Wales.
- Serving regular military personnel.
- People who may lack mental capacity to make a decision.
- ‘Novel’ forms of transplantation such as face or limb transplants or the use of reproductive tissues.
- People who have registered an opt-in decision or an opt-out decision on the NHS Organ Donor Register.
- People who have appointed a representative to make a decision about organ donation.
- People whose family can show they did not want to be a donor.
Children and Young People
The soft opt-out system does not apply to people under the age of 18. But when children reach a point that they can understand organ donation they can record their decision on the register. Therefore, children and young people can register a decision either to be a donor (opt in) or not to be a donor (opt out).
Until they can understand organ donation, the decision to donate, or not to donate, will be made by a child’s parents or guardians.
Organ Donation Wales has an FAQ page on organ donation from December 2015 where you can find out more.
For more information on the making of the new law, see the Human Transplantation (Wales) Act 2013 page on the Assembly website.