Abstract
Following several international examples, England introduced a system of deemed consent for organ donation in May 2020. This had been planned for over a year. However, the unprecedented circumstances of the COVID-19 pandemic raise issues that make the timing of this change unfortunate. The planned public awareness campaign has thus far been overshadowed by media coverage of the pandemic, and will likely continue to be, creating a situation in which a significant portion of the population may be unaware of having become potential organ donors. Further, the immediate impact of the new policy is likely to be significantly weakened by the suspension of the majority of organ donation and transplant activity. In this article, we first outline the details of the new model introduced in England, before considering the impact of the pandemic on transplantation services. We put forward three ethical reasons why, given the unprecedented circumstances, the change should have been postponed. We argue that (1) COVID-19 dominating headlines will prevent widespread awareness of the change, thereby undermining the autonomy of those who do not wish to be donors; (2) a lack of transplant activity during the pandemic will make the impact of the change difficult to measure; and (3) trust in the new system may be damaged given controversial decisions regarding Do Not Attempt Cardiopulmonary Resuscitation orders and the allocation of scarce intensive care resources. These reasons combined make for a shaky start at best and present a risk of the new system failing to achieve its desired and essential effect of increasing the number of voluntary organ donors.
Highlights
A model of deemed consent for organ donation[1] came into force in England on 20 May 2020 under the Organ Donation (Deemed Consent) Act 2019 (DCA 2019).[2]
England has followed the earlier example of Wales, where the Human Transplantation (Wales) Act 2013 introduced a similar consent model
As is usually the intention when a country introduces deemed consent, the purpose of the DCA 2019 is to increase the number of organ donations and, in turn, the number of organ transplants taking place each year
Summary
A model of deemed consent for organ donation[1] (commonly known as ‘opt-out’) came into force in England on 20 May 2020 under the Organ Donation (Deemed Consent) Act 2019 (DCA 2019).[2]. The DCA 2019 ( known as ‘Max and Keira’s Law’4) received Royal Assent on 15 March 2019 and came into force in England[5] on 20 May 2020 It acts to amend the provisions of the Human Tissue Act 2004, under which the use of an individual’s organs for transplantation required the expressed consent of either the donor themselves, a representative nominated by the donor prior to their death, or a person who stood in a qualifying relationship,[6] in that order of succession.[7] Under the DCA 2019, in the absence of a formally recorded objection, any person aged 18 or over who is not in one of the excluded groups[8] is deemed to have consented to donation ‘unless a person who stood in a qualifying relationship to the person concerned immediately before death provides information that would lead a reasonable person to conclude that the person concerned would not have consented’.9. This contrasts with Scotland where the decision was quickly made to delay the coming into force of the Human Tissue (Authorisation) (Scotland) Act 2019 – which makes similar provisions for deemed consent in Scotland – until March 2021 due to the pandemic and resulting concern that in the circumstances of the pandemic it may not be possible to implement it successfully and deliver on its stated aims.[11]
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