A legal guide to organ donation in the UK

It is a tragic fact that many people in the UK die who could have been saved by receiving an organ donation.  Thousands of people are on the waiting list right now. Some will be lucky enough to receive a donor, but many will not.

We are often asked about organ donation when people are considering wills or a lasting power of attorney. So to help people understand the law and the process behind organ donation in the UK, we have created this impartial guide to organ donation.

Contents:

• What do I need to do to ensure that I am a donor? Does it have anything to do with my Will?

• Will you only get to donate organs if you die suddenly, for example in a car crash? Can terminally ill people donate?

• Is there a cut off age for donors? Can only young people be donors?

• If I am on the register will I definitely get to donate?

• What is the law with children donors? Surely a child can’t give legal consent can they? Is it solely down to the guardians of that child?

• If I am on the register will I be asked to donate whilst I am still alive? For example a kidney?

• Is the law around organ donation changing?

What do I need to do to ensure that I am a donor? Does it have anything to do with my Will?

One of the greatest challenges to successful organ donation is speed. Someone may have stated in their Will the desire to donate organs, but the truth is that by the time a Will is retrieved and read it’s likely that too much time will have passed for that person to be a viable donor.

Although a Will can contain information such as a person’s desire to donate organs for transplant, a much more important thing to do is simply have a conversation with your loved ones. This is because when someone dies under circumstances that make donation possible the medical staff will discuss organ donation with the family. If the family is aware of the individual’s wishes, quicker and less stressful decisions can be made. It really is that simple.

So talk to your loved ones, and let them know your decision.

Will you only get to donate organs if you die suddenly, for example in a car crash? Can terminally ill people donate?

The way that someone dies does not necessarily influence whether or not their organs are viable for donation. This decision is made by a medical specialist at the time of donation. It takes into account lots of factors such as the person’s overarching medical history, the functioning condition of various organs, social history, and even travel history.

Some terminally ill people can donate, but there will obviously need to be serious considerations and checks to ensure that the person’s cause of death does not impact on the recipient’s health.

Is there a cut off age for donors, can only young people be donors?

There is no minimum or maximum age for someone to be an organ donor. However a person’s age can influence the likelihood of the organs being used. For example, a young adult’s organs may be in a better condition and more appropriate for donation than an elderly person’s, or it may be necessary to consider the organs size in the matching process, so a child is more likely to require organs from child donors.

Like with all cases of donation, a specialist will assess the viability of the organs and make a decision on whether or not they are appropriate for transplant. This decision will take into account the person’s age, but this may not be the defining factor in its approval or rejection.

If I am on the register will I definitely get to donate?

The simple answer to this is no. There is no guarantee that being on the register will mean that your organs will be used. In many cases the speed at which they are able to access the organs, or the nature of your death will be a deciding factor.

However there is no better way to help others in need of organs than by being on the register. So if you do want to make a difference to someone’s life by donating an organ it is vital that you:

• Join the NHS Organ Donor Register
• Tell your family and friends that you have joined the register and want to be a donor so they can support your decision

If you die in circumstances in which mean that you are able to donate, medical staff will consult the NHS Organ Donor Register to find out if you are on the donor list. It is also really important that you speak to family and friends about your wish to be on the register as this will help speed up the process, and make the action of granting final approval less stressful for your loved ones.

What is the law with children donors? Surely a child can’t give legal consent can they? Is it solely down to the guardians of that child?

Children can be on the organ donor register, however legally this decision is made by the child’s guardians. In Scotland once a child has turned 12 years old they are able to register themselves, but this is 18 in the rest of the UK.

It is a sad reality that children do die, but many find that the power of organ donation can provide some relative comfort as the organs can go on to save the lives of many other children.

If I am on the register will I be asked to donate whilst I am still alive? For example a kidney?

No you will not. Donating an organ whilst you are still alive is a different type of organ donation called non-direct altruistic donation, or living donation. There is a lot of useful information about this on the NHS website.

Is the law around organ donation changing?

From the Spring of 2020, all adults in England will automatically be eligible for donation. This will mean that when they die their organs and tissue will be assessed to see whether they can be used to save someone’s life, and if they can then they will be used for donation.

We spoke to David Regan, Barrister at St John’s Chambers Bristol and Assistant Coroner, so understand the problems and potential of this new law.

“Improving the availability of organs for donation is a vital healthcare need.  There are so many potential pinch points, that the Coroner’s service is keen to ensure that it does not add to them unless it is absolutely necessary.  Occasionally, for instance in cases where the is an active criminal investigation, a Coroner will need to object.  But Coroners generally do their best to keep this to a minimum.  The Chief Coroner’s Guidelines provide an invaluable national standard, and are a very useful resource.”

From the Spring of 2020, all adults in England will automatically be eligible for donation. This will mean that when they die their organs and tissue will be assessed to see whether they can be used to save someone’s life, and if they can then they will be used for donation.

Currently organ donors need to have directly expressed their intent to donate. This is known as an opt-in system. As of 2020, donation will be an opt-out. This means that unless the individual has directly expressed that they do not want to, or the family objects, then the deceased is automatically opted-into the donation system and the organs can be used to save someone’s life.

There are a number of factors that will automatically exclude someone from the opt-in system. These include people under the age of 18, people who do not have mental capacity, visitors to the UK, and people who have lived in the UK for less than 12 months.