Upcoming changes to Organ Donation in England : How does it effect you?

Upcoming changes to Organ Donation in England : How does it effect you?

Currently in England if you wish to be considered to donate your organs upon your death you need to be signed up to the Organ Donation Register, this is known as an “opt-in” system. 

However, from Spring 2020 the law relating to organ donation in England is changing. 

From Spring 2020 all adults in England will be considered to be automatically enrolled into the Organ Donation Register when they come to pass away unless they have indicated otherwise in their lifetime; or they are a member of an “excluded group”. 

These changes have already been implemented in Wales, by way of the Human Transplantation (Wales) Act 2013, with the “Deemed Consent” approach being implemented from December 2015.

Why is the law changing? 

The overall aim of the changes is to decrease the current shortage of organ donors in the UK. It is reported that 408 patients died last year whilst on the organ transplant waiting list. 

Max and Keira’s Campaign and subsequent Bill, which was formed in favour of an opt-out system for organ donation being implemented, was passed through Parliament on 15th March 2019. This is formally known as the Organ Donation (Deemed Consent) Act 2019, this piece of legislation amends the Human Tissue Act 2004 generally as outlined above to give effect to these changes. 

Who do the changes not apply to? And what is an excluded group? 

The changes do not apply to anyone who is considered to be a member of an excluded group. 

An excluded group is a class of people who shall not be automatically considered to be on the Organ Donation Register, once the changes take effect, these are: 

  1. Anyone under the legal age of majority (under 18s); 
  1. People who lack the requisite mental capacity to understand the new change in law relating to organ donation and are therefore unable to take the necessary action; 
  1. Visitors to England and anyone who is residing in England involuntarily; and 
  1. People who have been residing in England for less than 12 months before their death 

How can Prince Evans assist me in light of the changes to the law?

Whilst the most recent NHS guidance has detailed that they shall still continue to consult with families prior to proceeding with any organ donations, it is thought that the general position shall be that if you have not recorded your decision to either give or refuse your consent to your organs being donated upon your death it shall be considered that you give your consent to donate your organs. 

Furthermore, the guidance details how an individual’s family would be expected to support any decision given by the Donor. 

We therefore suggest that you consider reviewing your Will to ensure that your wishes in this regard are recorded within a legally binding document and can accordingly serve as suggestive evidence towards your intentions in relation to organ donation upon your death. 

This would be an extremely prudent measure in scenarios where you believe that your decision may well not be supported by family members upon your death. 

We would also suggest cementing such a decision via the NHS Organ Donation Register. 

In relation to people who are members of an excluded group (i.e. those who are deemed to lack capacity to make such a decision), it is important to note that whilst they are excluded from making a decision in accordance with the change of law, under the statutory provisions, they are still eligible to note their preference on the NHS Organ Donor Register. The decision will then ultimately be made by their immediate family upon their deaths who shall be requested to take any such noted decision into account when giving or refusing their consent to organ donation. 

For any further information, please do not hesitate to contact Chloe Eyles of the Wills, Trusts and Probate Department at Prince Evans Solicitors LLP to discuss. 

Guidance can also be found online at : https://www.organdonation.nhs.uk/opt-out-faq/

Written by Apprentice Solicitor Chloe Eyles in the Wills, Trusts & Probate Department.


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