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Organ donation – how the law has changed

11 June 2020

The law surrounding organ donation changed in England on 20 May 2020, meaning that all adults will be deemed to have given consent to donate their organs when they die, unless they have opted out, or are part of an excluded group.

Previously, organ donation in England followed an ‘opt-in’ rule, meaning that individuals needed to sign up to the NHS Organ Donor Register if they wanted to donate organs.

Despite this change, the deemed consent rule does not mean that a donation of organs follows automatically where an individual fails to opt out. The individual’s family will always be consulted and be given a chance to object before any organ donations are made. The NHS has stated that the individual’s faith and beliefs will always be taken into consideration before organ donation goes ahead.

The new system of deemed consent does not apply to the following:

  • children under the age of 18 years;
  • people who lack mental capacity to understand the new arrangements and take the necessary action;
  • people who have lived in England for less than 12 months before their death; and
  • people who are not living in England voluntarily.

If an individual would like to be an organ donor, the NHS suggests that the individual speaks to their family to make them aware of their decision. It is important to note that the NHS Organ Donor Register allows an individual to amend their details should they change their mind at any time.

In light of this change in law, we suggest that individuals speak with their family members in respect of their wishes and record their decision on the NHS Organ Donor Register if applicable. We also suggest individuals record their decisions in written communication with their family, or as part of their will, or lasting power of attorney. Clearly, anybody who feels strongly that they do not wish to donate their organs should ensure that they have opted out on the Register.

How can we help?

The Private Client team regularly advises individuals in respect of their lifetime planning and can assist to help individuals note their organ donation wishes in their will or lasting power of attorney. You can contact a member of the team here.

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