Civil litigation

Organ donation law: 2020 is the year of change

Sharon Banga, Clinical Negligence senior associate for Shoosmiths, discusses the changes to organ donation law.

Surgeons performing an operation

With the recent pandemic, all things health has been quite rightly focused on Covid-19 and its associated impact. In amongst lockdown, the devastating effect of the virus and financial impact; there has been a very important change to medical law in May 2020 regarding organ donation that shouldn’t go unnoticed and is sure to have positive impact on patients for years to come.

As a clinical negligence solicitor I’m often assessing changes to medical law to see how they may affect my clients. Having the experience of working closely with families on clients both sides of the coin; who have tragically lost loved ones because of the lack an organ, or who have massively benefited from the ultimate gift; I can safely say that the impact of the change to the way in which organ donation operates can’t be underestimated.

What’s changed?

Organ donation has now changed to an ‘opt out system’. The effect of this change is that if you’re not from an excluded group (those under the age of 18; people who lack the mental capacity; visitors to England, and those not living here voluntarily; people who have lived in England for less than 12 months before their death) and have not confirmed whether you want to be an organ donor; it will be considered that you agree to donate an organ when you die. There is no deadline for a decision to be made by you. (The NHS has no age limit on becoming an organ donor.)

You of course still have the choice about whether or not you wish to become a donor. Post death, decisions based on faith, belief and culture will continue to be respected. Families will also continue to be consulted.

Why is the legal change needed?

Even with impressive progress in organ donation over the past decade, there is still a worrying shortage of donors. There just aren’t enough organs available for all the people in need.

It is understood that only around one third of people have told their family members they want to donate. England has one of the lowest organ donation consent rates after death in Europe.

Likely impact of the change?

A similar law has already existed in Wales since 2015 and is due to take place in Scotland in autumn 2020.

Wales now has the highest consent rate in the UK: 77%, which is up from 58% in 2015 when their legal organ donation change took place.

In the UK, three people die every day due to a lack of a suitable organ donor. One donor has the potential to donate up to nine organs.

It is hoped that moving forward, once the impact of the legal change is realised and public awareness increases, similar increases will be seen in England and Scotland, with hundreds of lives saved each year.

How this can impact legal clients?

The obvious initial area would be expressing wishes when a will in prepared. It’s now more important than ever that wishes are recorded and that conversations with family are had with respect to individual preferences about organ donation.

From the perspective of a clinical negligence solicitor, I experience situations where organ transplants are needed; sometimes due to medical negligence. The potential for a larger pool of donors will for some, mean the difference between life and death or at the very least improve the quality of their life beyond measure. It is now more of a possibility that someone who needs a transplant, will be able to be gifted one on the NHS national register.

Every few months I hear from a former client of mine whose young daughter sadly passed away due to kidney failure and has now set up a charity in her memory to assist young kidney failure sufferers who are waiting for a transplant. We exchanged messages after the recent change to the law in which she expressed how excited she was about the impact this was going to have on future generations in the hope that others will be prevented having to experience what she has. This simple expression of hope brought the real impact of the change to life for me.

Make your wishes known!

Even if wishes are expressed in your will and a donor card is held, it’s possible that an objection by a family member could prevent your wishes being carried out after death. The best way to ensure that your wishes are respected is to speak to those that you’re close to about your wishes.

It’s often the case that understandably, very few people actually have the conversation about organ donation with their families / friends. It’s not exactly the easiest thing to discuss with those closest to you. It’s now more important than ever that these conversations take place. As uncomfortable and awkward as it was; this is one conversation that I personally chose to have sooner rather than later.

Views expressed in our blogs are those of the authors and do not necessarily reflect those of the Law Society.

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