Welsh soft opt-out organ donation from December 2015

In the Human Transplantation Wales Act 2013 (HTWA 2013), the Welsh Assembly voted for fundamental change on howwe determine the wishes of the dead in matters of organ donation.

The established principle that an individual must give express consent to remove their organs after death has been turned on its head. From 1 December 2015, an individual with legal personality living in Wales for more than 12 months will be presumed to have given consent for their organs to be removed after death unless they have given clear instructions to the contrary.This opt-out arrangement is contrary to English law, which states that the removal of a person's organs after death can only be undertaken with the prior consent of the deceased. This consent can be in the form of a will or codicil, a donor card, or other documents. The deceased must have elected to opt in to the system before their organs can be removed.

Body commodity

Common law has denied the existence of property in a living human body. Lord Justice Judge said in Yearworth v North Bristol NHS Trust [2009] EWCA Civ 37: 'The common law has always adopted the same principle: a living human body is incapable of being owned.' The interpretation of the courts has been reluctant to make the human body a commodity, which also extends to the human body once it has died.

However, the overall question of ownership is vexed. While no one owns the body, we and the state have certain rights and responsibilities over it, outlined in legislation; statutory provisions exist but the law is confusing.

Under statute we find the Human Tissue Act 2004. The Act, applicable in England and Wales:

• Regulates the removal, storage, and use of human tissue. This is defined as material that has come from a human body and consists of, or includes, human cells;
• Makes it lawful to take minimum steps to preserve the organs of a deceased person for use in transplantation while steps are taken to determine the wishes of the deceased, or, in the absence of their known wishes, obtaining consent from someone in a qualifying relationship; and 

• Makes it an offence to remove, store, or use human tissue for scheduled purposes without appropriate consent.

The new Act is about to change that in Wales, where one motivating factor in enacting the legislation is the shortage of organs available for transplant, common to all of the UK.

There is plenty of data to confirm that donation levels have dropped substantially in recent years, which science journal NATURE described as an 'acute shortage' in a 2013 editorial. The UK has one of the lowest donation rates in the developed world.

The Welsh government believes that this new opt-out system of organ donation will result in a 25 per cent increase in organ availability in Wales. It believes that nine out of ten people agree with organ donation, but only one-third, three out of ten, have signed the NHS organ donor register. Critics say that presumed consent does not necessarily work. In Sweden, where presumed consent has been available since 1996, the rates of donation are still very poor.

Burden of proof

The 'opt-out' system in Wales will be regarded as a soft opt out, as the presumption of the deceased's consent can be rebutted under section 4 of the Act by a relative or friend of long standing, if they can prove the deceased had strong views opposing donation. The shift in the burden of proof is clear, though. In Wales there will be a need to rebut presumed consent. In England, express evidence will still be required to determine whether the deceased agreed to organ removal after death.

The cost of rolling out the changes is estimated to be £4m to contact every person residing in Wales for the last 12 months. This duty is ongoing under section 2(2) of the Act. There is the problem of monitoring and continually updating the database as people are born, die, and move in and out of Wales. Civil libertarians claim that this database will form another erosion of our liberties and a loss of autonomy. However, these changes, providing the increase in donations becomes a reality, will benefit recipients across the UK.

HGWA 2013 is an excellent example of how devolved areas within the Welsh Assembly's domain are differentiating laws from those in England. It is worth reminding practitioners to be vigilant for such diversity when dealing with clients residing in Wales. In the area of organ donation it could not be more stark a contrast. SJ

Adrian Mason has spent 15 years in legal education specialising in civil litigation