Legal update regarding Organ Donation

News Posted: January 27, 2020

Legal Update regarding Organ Donation

We discuss below the upcoming changes to the law proposed by The Organ Donation (Deemed Consent) Act 2019 (The Act) coming into law in Spring 2020.

What is the present position with Organ Donation?

The present system is an “opt-in” one whereby donors have the option of signing up to the NHS Organ Donation Register and those that do so are encouraged to tell their loved ones and to carry an Organ Donation card.

According to Government statistics, 80% of people in England support organ donation but only 38% have opted in. There are more than 6,000 people currently waiting for an organ in the UK and three people die each day while on the waiting list.

How is the law changing?

The Act will mean adults in England will be considered potential donors, unless they chose to opt out or are excluded.

The Government has said there will be a focused public awareness campaign closer to the time regarding the changes, giving people time to consider their options and to take any necessary action. However, the exact details of how the new law will work in practice are not yet fully clear. For example, the opt-in system does have some proposed exclusions, the following being excluded from the “opt-in”:

  • children under 18;
  • people who lack the mental capacity to understand the changes for a significant period before their death; and
  • people who have not lived in England for at least 12 months before their death

Additional safeguards are proposed, including specialist nurses trained to discuss options with families at the time of death and a “soft” opt-out option whereby families can refuse consent on behalf of the deceased person due to religious or personal reasons.

What should I do to record my wishes?

If you wish to be an Organ Donor, then until this law comes into force you will still need to record your exact preferences by registering on the NHS Organ Donation register, available online. Even after the law comes into force, if you wish to opt into non-routine donations; such as hand and face transplants it is thought that you will need to do so via the register.

If you wish to opt out, then you can do so officially via the NHS Organ Donation register.

Whether you wish to donate or not, the most important thing is to discuss your thoughts and wishes with friends and family. Although not an easy conversation to have, our loved ones need to know our preferences, particularly considering these changes to the law.

Should I update my will?

You could consider including your wishes within your Will, or as part of a side memorandum of funeral wishes. This may be particularly helpful if you have personal or religious reasons for not wishing to make your preferences known to family. It should however be noted that Wills are not always accessed until sometime after death, by which time organs may not be fit for transplant.

In addition, if you are considering appointing attorneys under a Lasting Power of Attorney for Health and Welfare, you could discuss the matter further with them and note your preferences. LPAs allow you to appoint people to make decisions on your behalf during your lifetime, if you lack the mental capacity to do so yourself. They allow you to record your preferences regarding a wide range of health and care matters; and can also extend to decisions regarding life sustaining treatment.

If you wish to discuss your Will or to make Lasting Powers of Attorney please contact Amy Morris or any of the Wills and Probate Team on 01743 248545 or email

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