The Welsh Government has and the Scottish Government either has, or is minded, to introduce 'presumed consent' for organ donation. In other words, if you have not opted out you are presumed to have consented to donate your organs and other tissues for the benefit of others.
There is a considerable shortage of organs for transplant, a medical procedure with undisputed medical benefits for the recipients of the organs, so it is not surprising that there is support both from the general public and medical authorities for this procedure. At the risk of making myself unpopular, and without denying the benefits of transplant surgery, I shall suggest another way of looking at the policy of 'presumed consent'.
It was alleged that around 1999-2000 pathologists and clinicians had retained the organs and other tissues of children after autopsy without obtaining full consent from the parents of these children. There was considerable public condemnation of this and public enquiries were set up and the law tightened. Many pathologists argued that they were acting in terms of the law then current – the Human Tissue Act of 1961. In terms of this act, a pathologist or other professional 'lawfully in possession of the body of a deceased person' could proceed with non-statutory autopsy and research, but only if 'having made… such reasonable enquiry as may be practicable… he has no reason to believe' that any surviving relative of the deceased objects to the body being so dealt with.
In other words, the pathologists were required to ask parents and relatives if they objected to the organs or tissues of a deceased child being used for research. If the parents said 'We don't object', they were deemed to have consented. And, as far as ordinary language goes, they had consented. But as far as the language of more recent medical law and ethics goes, they had not
consented, because in current bioethics consent is nowadays logically tied to full disclosure of all relevant facts.
In my opinion, the pathologists of the time were unfairly criticised by the public, for most were acting in terms of the law and ethics then current. However that may be, committees were set up and the position was made clear that fully informed consent has to be given by the patient concerned or appropriate relatives before tissue may be taken from the body of a deceased person. This position had strong public support. So how is it consistent now to 'presume' consent for organ donation?
It could be argued, and it was in fact argued by the British Medical Association (BMA), that there is a crucial difference: in the one case organs were removed for research and in the other case for the benefit of patients who will receive the transplanted organ. But that is a spurious argument. Transplant certainly benefits the recipients, but successful research might benefit many more patients by clarifying what went wrong with the organs in the first place. Moreover – and this is the key factor – the relevant point is not the use to which the organs might subsequently be put but the process of consent for obtaining them, which in consistency must be the same in both cases. But, hey, who cares about logical consistency – it is what the public happens to want that matters politically. That's democracy isn't it?
Consider further whether the idea of 'presumed' consent is even logically coherent. 'I presumed you would want to contribute to the Jacob Rees Mogg benevolent fund so I put you down for £100.' 'Presumed' consent is not consent even in the everyday 'okay' sense, far less in the fully informed medical sense; it is not consent in any sense. Moreover, donations must be freely given or logically they are not donations. I am happy to donate or freely give my organs, but if I collapse at the bus stop I don't want someone to 'presume' that I have consented to have my guts harvested.
At a policy level, what is needed is a more vigorous education campaign – including information on the process of retrieving organs when the patient is on life-support – rather than attempting to appease public demand by abusing language.