A matter of life and death

One of the latest big stories in my adopted home of Wales has been the Human Transplantation (Wales) Bill. The bill, which has recently passed the final stage in the Welsh Assembly, will replace the existing 'opt in' based system for post-death organ donation in Wales with a 'soft opt out' system from 2015.

This means that a deceased adult (with sufficient capacity) is deemed to have given their consent to be a donor unless they registered to opt in or out. Such wishes will be governed by one single register, which will also reflect 'partia' donations (select organs). Individuals can record their wishes online or via paper forms.

In 2012/13, 34 people in Wales died while waiting for a transplant, according to the Welsh government, and two-thirds of current deceased donations come from people who were not on the opt-in register but whose family decided for them. The government believes this legislation will assist in further increasing consent rates for donation.

It also highlights that there are opt-out systems for donation consent in numerous other countries and that research suggests organ donation rates from deceased persons rose by approximately 25 to 30 per cent in those places. It calculates that a similar increase in Wales could mean an additional 15 or 16 donors and about another 45 organs becoming available.

Families of the deceased will still play an important role in organ donation because, as stated, the new law introduces a soft opt-out system: where 'deemed consent' applies, family members are allowed to help decide whether a donation can take place.

If they can show evidence that their deceased relative would have objected, the presumption of deemed consent can be rebutted, voiding the donation. If the family cannot be contacted, consent will not be deemed.

Talking point

This change in the law represents a significant departure from current legislation and the Welsh government acknowledges that there has to be an extensive public awareness campaign leading up to 2015.

Notwithstanding that, private client practitioners may consider it necessary to raise the issue with clients in Wales when discussing future planning. In particular, it may be sensible to draw their attention to the opting out choice and remind them of the 'deemed consent' provisions.

Furthermore, practitioners may also want to tell clients the onus may fall on their families to take the donation decision if they don't formally register their choice. In a deemed consent regime, if their family felt that they would have strongly objected to organ donation, this could mean their family attempting to gather supportive evidence.

Back up

Therefore, drafting a new will or executing a lasting power of attorney could provide a good opportunity for clients to clearly express their wishes in a legal document that should be preserved until their death. While the best option is for an individual to exercise their right to formally register their wishes when possible, such a step could be considered a belt and braces option.

It remains to be seen whether the English government will follow suit, but private client practitioners across the UK should probably prepare for this being a hot topic for some time to come. They should ensure that they fully understand the ramifications of the new bill in Wales and, for the time being, the forthcoming differences in emphasis.

Matthew Evans is a partner at Hugh James

He writes the regular vulnerable clients comment in Private Client Adviser