Medical Ethics: Presumed Consent for Organ Donation
At the end of last year, the Welsh government announced that it will bring in a system of presumed consent for organ donation into effect on the 15th of December 2015. This blog will provide a step-by-step guide on the medical ethics arguments surrounding this law change. Why do some people want this new ‘opt-out’ law? Why do others want to keep the current ‘opt-in’ law?
1. Define the terms of the debate
Organ donation is the process of surgically removing an organ or tissue from one person (the organ donor) and placing it into another person (the recipient).
Presumed consent is the assumption that a particular action would have been approved by a person if permission had been sought.
Opt‐in systems only take organs from those who have specifically consented to donation.
Opt‐out systems treat everyone as a willing donor unless they object.
Evidence from surveys suggests that the majority of people would like to be organ donors after death. With the current opt-in system, they have to actively register their wish to become a donor. As most people consider death is a far-off prospect, many people do not get round to putting their names on the organ donor register. Consequently, whilst they are getting round to registering, a thousand people in need of organ donations are dying each year.
An opt-in system would combat the tendency of inaction. Presumably people who do truly object will make their wishes known – either to their relatives or through opting-out.
The default should always be to save lives. This is the central principle behind the opt-out system.
The opt-out system relieves relatives of the burden of the decision when they are unsure of their relative’s wishes. Consequently, many opt for saying no. This results in perfectly healthy organs being cremated or buried. An opt-in would prevent this.
In the UK, approximately only 19% of the population have signed up to the donor register, despite surveys showing up to 90% support for donation. Therefore an opt-in system would actually be more likely to respect the wishes of the deceased. As the BMA puts it: “Overall an opt-out system is better for recipients (because more organs will be available), better for donors (because it is more likely their wishes will be respected) and better for relatives (because it is more likely that the individual’s own wishes will be known)”.
According to the BMA, under the current opt-in system, the majority of people who donate organs have not actually given their consent. In 2010/11, 33% of donors in the UK had signed up to the Organ Donor Register. In the remaining cases, permission was given by family members. Some family members will have known their relative’s wishes from previous discussions, but many will have not and so will be making a guess at what they would have wanted. It is possible that in some of the cases where the families allow organ donation to go ahead, the deceased might have objected to donation, had their wishes been made known. Under an opt-out system this is less likely to happen because there is a formal mechanism for those who oppose donation to record their wishes and for ensuring that those wishes are respected.
An opt-out system gives added protection to those who do not wish to donate and makes it more likely that those who are willing to donate will be able to do so.
Under an opt-out system individuals have exactly the same choice as in an opt-in system: to donate or not to donate.
When organ donation becomes the default position, it could shift societal expectations towards organ donation as a positive and normal thing to do.
There are concerns that patients might be afraid that efforts would not be made to save their own lives if they were considered to be potential organ donors. Having an opt-out system does not mean we cannot also ensure that patients and the public are aware of the clear separation between the treating team and the transplant team and to reassure them that all treatment decisions are made in patients’ best interests.
One of the key arguments in favour of an opt-out system is that it will increase the number of donations. However, if the goal is to increase the numbers available for donation, there are lots of other ways this can be achieved without the possibility of taking organs from people who would have objected.
In fact, there is little evidence that changing to an opt-out system would do much to increase the numbers of donations. There is some evidence that other measures such as better education of the public and promotion of organ donation would increase the number of donations. Another interesting example is Spain. Whilst Spain has changed to an opt-out system, increased numbers of organ donors in the country are not solely attributed to this new law. Numbers of donors have also increased due to improved administrative and operational roles of the Spanish transplant teams.
Would the NHS be able to cope with the increased numbers of operations that would then take place? Do they have the infrastructure in place? Is it in fact a lack of intensive care facilities that limit organ donation?
We do not presume consent for any other medical procedure – why is harvesting organs any different?
The absence of an objection is not consent, and consent is a vital concept in medical practice.
We should respect wishes of the dead. You have the right to say what is to be done with your body after death. You may have justifiable religious reasons as to why you would not wish to donate.
Your organs essentially become property of the state unless you opt-out rather than remaining your own property.
There is potential that some patients may be suspicious that the doctors are keen to harvest their organs, and therefore don’t administer the best treatment for them. This could seriously damage the doctor-patient relationship.
Organs of vulnerable people i.e. under-educated, or may not be as easily able to exercise their rights to opt-out.
4. Consider the legal position
Whilst Wales has the opt-out system, the opt-in system operates for the rest of the UK. The BMA is advocating a ‘soft’ opt-out system, where the relatives would still make the ultimate decision. This means that transplant teams would be unlikely to remove organs if living relatives find it too distressing.
5. Make your conclusion
There are two options to consider here:
1. You believe you have the right to decide what is to be done with your body after you have died. Therefore it is therefore morally wrong to take organs without consent
2. You believe that the overall benefits to recipients and relatives outweighs the above concern. A default position to save lives is better than a default position to respect the autonomy of people who no longer exist.
Your conclusion must based on your personal and genuine opinion on which side you think has more weight – good luck!
Uploaded by Beth on 28th January 2016
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