An evaluation of presumed consent legislation in the procurement of organs for transplantation.

Within the U.K. the crisis in the numbers of organs available for transplantation has featured strongly in the health care literature over the past five to ten years. Under the terms of the Human Tissues Act 1961 (166) many strategies to increase the number of available organs have been developed which hinge on the altruistic voluntary donation of organs via the “opt in” system. Critics of this system suggest that the current approach to organ procurement is inadequate, highlighting the growing gap between those waiting for a transplant and the numbers of organs available. In an effort to resolve this crisis they propose radical changes to the current legislation which would facilitate the adoption of an “opt –out” or presumed consent system of organ donation. This approach, adopted by many European countries requires the registration of their objection to donation of their organs for transplant, by all individuals over the age of consent. Failure to register an objection would be interpreted therefore as an agreement to organ donation. These proposed changes to the current organ donation legislation presents the health care professional with many legal, ethical and professional challenges. To date, little literature has been produced which explores the implications of presumed consent legislation for the health professional or individual within the Emergency or Intensive Care setting. This work evaluates the claims made for this approach to organ donation together with the implications for the professionals, patients and relatives of any change to presumed consent legislation. The key arguments in favour and against any changes to the current strategies are critically analysed and the implications for the health care professional and society considered. Central to the debate is the impact on these groups of the change from a voluntary based organ donation system to a system of mandatory removal of organs unless evidence of an objection can be demonstrated. This work concludes that in order to resolve this crisis society has to debate one of two options. Society with the U.K. develops the considerable options for organ donation available under the provision of the Human Tissue Act 1961. This work explores these options. Fundamental to this approach however is the agreement that the principle of voluntary donation of organs contained within the Act should be retained. Should this be accepted, this work suggests development of the current approaches to organ donation aimed at exploiting the opportunities of the present legislation. A critical evaluation of the benefits and consequences of this option is presented. Alternatively, should the debate produce an agreement that the principle of voluntary donation of organs be abolished with the adoption of presumed consent legislation, holds considerable implications for the professional and society as a whole. Any framework developed to implement such an initiative would require to address the legal, ethical, financial and professional impact of this legislation, providing appropriate safeguards for vulnerable groups at risk of harm from such legislation. Acknowledging these requirements this work proffers a framework for consideration that may facilitate the adoption of presumed consent legislation within the U.K.Finally this work concludes that regardless of the option chosen in order to improve the supply of organs for transplantation, the strategies for organ donation within the U.K. require radical review in terms of the communication and organisational structures underpinning the current approaches