The ‘opt-out’ approach to deceased organ donation in England: A misconceived policy which may precipitate moral harm

Abstract

In an effort to solve the shortage of transplantable organs, there have been several proposals to introduce an opt-out approach to deceased organ donation in England (also termed 'deemed', or 'presumed' consent). In seeking to enact the so-called 'opt-out proposal' via an amendment to the Human Tissue Act 2004, The Organ Donation (Deemed Consent) Bill 2017-19 represents the most recent attempt at such legal reform. Despite popular calls to the contrary, I argue in this paper that it would be premature for England, or, indeed, any country, to adopt an opt-out approach at this time. Not only is the available evidence inconclusive on whether introduction of the opt-out proposal would increase the supply of transplantable organs (a common misconception), but there is also a chance that doing so might bring about an otherwise avoidable moral harm through an unjustified interference with individual autonomy. I maintain that the resources required to change the law to such effect would be better expended on alternative, provenly efficacious and less contentious mechanisms for increasing the supply of transplantable organs, such as: improving communication with the family of the deceased, developing infrastructure, raising public awareness and enhancing staff training, attitudes and understanding towards organ donation.

“I am in favour of organ donation, but I feel you should opt-in” - qualitative analysis of the #options 2020 survey free-text responses from NHS staff toward opt-out organ donation legislation in England

“…In summary, this qualitative paper has evidenced that the ability to make an autonomous informed decision is foremost in the respondent's thoughts regarding an opt-out system. This has been commonly cited as a reason throughout the literature by those against an opt-out system 9,25,26 . The loss of that ability was the primary reason for respondents being against the change in legislation with the notion that the decision is a personal choice cited as a reason for lack of discussion with family members.…”

“I am in favour of organ donation, but I feel you should opt-in”—qualitative analysis of the #options 2020 survey free-text responses from NHS staff toward opt-out organ donation legislation in England

“…In summary, this qualitative paper has evidenced that the ability to make an autonomous informed decision is foremost in the respondent's thoughts regarding an opt-out system. This has been commonly cited as a reason throughout the literature by those against an opt-out system [9,10,25,26]. The loss of that ability was the primary reason for respondents being against the change in legislation with the notion that the decision is a personal choice cited as a reason for lack of discussion with family members.…”

NHS staff awareness, attitudes and actions towards the recent change in organ donation law in England-results of the #options survey.

“…This is particularly pertinent as a Welsh Government funded analysis of the influence that media coverage had on public attitudes in the run up to the their legislative change, identified health care professionals as credible sources of information [15]. There are also additional views [16][17][18] which suggest that the change in legislation is flawed and will increase the number of optouts and reduce donation levels. With the above in mind, NHSBT planned their awareness campaign and tracked changes in public awareness and action taken after hearing of the change in legislation [19].…”