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Organ donation and deemed consent: A new world order on the horizon?

29 July 2020

#Private Client Practice

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Organ donation and deemed consent: A new world order on the horizon?

The UK recently introduced the Organ Donation (Deemed Consent) Act 2019 (UK), which essentially changed their system from being “opt-in” to “opt-out” in May 2020. This change follows on from Wales and Scotland enacting similar legislation earlier. Residents of England, Scotland and Wales are now deemed to have consented to organ donation unless they specifically register their intentions to the contrary. Northern Ireland is the only country in the UK that remains in an “opt-in” scheme.

This is somewhat of a vexed issue and no doubt authorities in other countries will be looking to the UK as a test case to see whether it manifests in the intended outcome of an increase in donation rates. Even though reform in this space has not been on the agenda in Australian politics for some time, any increase in successful donations is almost certain to spark some interest amongst medical governing bodies here.

Put simply, an “opt-in” system means that a person has to take a positive step to become a donor. Whereas an “opt-out” system means that people are automatically deemed to be donors, and they then need to take a positive step to exclude themselves from the program. 

Organ donation is a deeply personal decision, both for the donor and also for their next of kin. In Australia, consent is generally a two-step process. The first step is to register intent with the national organ donation register which is administered by Medicare. The second step often comes as a shock to some people – your next of kin must then consent to the donation, even if the person has registered as a donor.  

There were 221,641 new donor registrations in Australia in 2019, which seems like a healthy number. However, what most people don’t realise is that only a small percentage of people are actually eligible to be considered for donation. Currently, only about 2 per cent of patients who die in Australian hospitals are eligible to be considered for organ donation. In order to be considered, a person must die in either an ICU or emergency ward. 

In 2019, there were only 1,501 organ transplant procedures performed in Australia.[1]

By changing the system to an “opt-out” system, the UK no doubt hopes to follow in the footsteps of countries like Spain and Croatia who have increased their donor rates by becoming “opt-out” systems. The intent is obviously to increase donor rates, which should then hopefully translate to shorter transplant waiting time and lower morbidity rates amongst those waiting.

In Australia, things aren’t quite as easily “fixed”. In what the medical profession and proponents for change may consider to be the tyranny of our Federal Government, the laws regarding consent are state-based and of course can vary.[2] Even though the Commonwealth Government has moved to create what appears to be a national approach and response to try and increase donor rates through the implementation of the national register[3], the system is still fettered by the various state-based legislation which dictates who gives ultimate consent.

Another point of confusion is that people often think they can make these directions on their estate planning documents, such as a will, enduring power of attorney or advanced health directive. But in most states, these wishes are considered to be a special health care matter and are excluded.[4] Then there is also the practical reality of having to try and locate the original documents. People often forget to communicate with their next of kin where these documents are stored, and there is often no time to actually go look for them in the case of an emergency. Often in these circumstances, decisions are made by the next of kin without reference to what those wishes might have been.

Of course there is the lingering question of whether silence can actually constitute acceptance or informed consent, which is essentially what an “opt-out” system is. And what would a government need to do to ensure that the community has been informed? Looking to other areas of law, there are only very limited examples of where silence can constitute acceptance. For example, under statutory consumer laws, an automatic rollover or renewal of a contract could be considered to be an unfair contract term, and therefore unenforceable[5]. Similarly, under basic principles of historic contract law, only certain contracts are capable of coming into existence through the silence of a party[6]. The same can also be said for certain criminal offences.[7] So how is it then that something as deeply invasive as removal of a person’s organs could be consented to through silence, or an “opt-out” scheme? The issue is undoubtedly complex and not necessarily something many Australians have had to give much thought to, given that we are part of an “opt-in” program.   

So where does this leave someone who wants to donate, but their family refuses consent when the time actually comes? The system seems somewhat flawed where you can give fully-informed consent during your life, only to then have someone else refuse at the last minute. Thankfully, this only happens in 10 per cent of cases in Australia.[8] 

As with most things where conflict arises in life, and so too in death, communication is the key. People need to discuss this with their next of kin, and even their broader family. In some cases they may need to explain carefully why they feel strongly about becoming a donor. Whilst it may be a very difficult decision for a survivor to make, when all they want to see is their loved one laid to rest, having the discussion about the reasons could literally mean a lifetime of difference to one of the 1,700 Australians currently on a donor waiting list.

Author: Nicole Treacey

[1] Donatelife.gov.au
[2] See, for example, Transplantation and Anatomy Act 1979 (Qld); and Human Tissue Act 1983 (NSW)
[3] Donatelife.gov.au
[4] Schedule 2, Powers of Attorney Act 1998 (Qld)
[5] Australian Consumer Law, Schedule 2, Competition and Consumer Act 2010 (Cth)
[6] Felthouse v Bindley (1862) 142 ER 1037; Carlill v Carbolic Smoke Ball Co 2 QB 484
[7] For example, section 348 Criminal Code Act 1899 (Qld)
[8] Statistics from donatelife.org.au

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.

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