Opt-out organ donation: on evidence and public policy.

Abstract

Deceased organ donation in the United Kingdom (UK) is governed by the Human Tissue Act 2004 and the Human Tissue Act (Scotland) 2006 and operates under an opt-in system of donation. Despite its rejection by the Organ Donation Taskforce in 2008,1 there have been continued calls to move to an opt-out system (sometimes, perhaps incorrectly, termed presumed consent). For example, the British Medical Association has long supported such a move2 and there have been sustained attempts from some academic commentators who argue for legislative change.3–6 Recently, the National Assembly for Wales voted in favour of a draft Human Transplantation (Wales) Bill, which will enable the creation of an opt-out system.7 This follows a referendum held in early 2011 which resulted in the Assembly gaining further law-making powers, including in relation to health and health services.8 The new law is slated to be on the statute books by 2015. In addition, earlier this year, the Northern Irish Executive announced plans to consult on organ donation including a possible move to an opt-out system.9 It has been widely assumed that the evidence available makes credible the suggestion that opt-out systems yield significantly higher rates of organ donation, something that a recent review commissioned by the Welsh Assembly supposedly reaffirms. In this essay piece, we take issue with the way in which the evidence has been used to make inferences and reach conclusions not necessarily (strongly) supported by the evidence. The available evidence is weaker than sometimes assumed, yet it is being used to support ideological, ethical and political commitments. In the absence of strong evidence, time and effort spent on legislative change misses the opportunity to focus on non-legislative action, which could have greater impact.