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BLOG - “Opt Out” Organ Donation - What Does It Mean For You?

Solicitor Sarah-Jane Macdonald explores the implications an "opt out" system of organ donation can have on your final wishes.

Sarah-Jane Macdonald,

Solicitor at Pagan Osborne, explores the implications an “opt out” system of organ donation can have on your final wishes.

Organ donation can be an emotive topic. A 2012 survey showed that only 5% of the Scottish population are opposed to organ donation, yet over 60% have not registered as donors. While most people agree with organ donation in principle, we may all have different opinions about what we are comfortable with. 

While our current, ‘opt-in’ system puts the onus on you to actively sign up to the donation register, MSP Anne McTaggart’s Consultation on Organ Donation seeks to introduce an ‘opt-out’ system to tackle the serious shortage of organs. 600 people are currently on the waiting list in Scotland, and sadly one in three of those people will die waiting for a suitable organ. If new legislation is introduced in line with this Consultation everyone would be presumed to be an organ donor unless they have specifically “opted out”.

So what would this mean for you? If you are happy to be registered as an organ donor and have no specific requests, then there is nothing further you would need to do.  If, however, you object to donation for any reason or you wish to restrict what organs and tissue may be donated, then it will be necessary for you to record your wishes. For example, many people would donate organs in theory but feel that certain defining characteristics (i.e. eyes or skin) ought to be kept.

At the moment family members are consulted and given the opportunity to refuse donation.  Under the new proposal, there is a presumption that you have agreed to donate all organs and tissue. Your family will simply be asked whether any objection has been recorded.  This change is intended to alleviate a family’s suffering at what is already a terrible time by removing any uncertainty around your wishes, as well as increase the number of donors.

How can you record your wishes? The Consultation suggests a new opt-out register where people can document any objections, which will act like the current opt-in register.  However, you may also want to consider putting in place a Living Will, which is a medical directive to your doctors.

A Living Will allows you to record your wishes about future medical treatment if you are unable to make those decisions for yourself. It also allows you to state clearly any objections to becoming a donor or to specific organs and tissue being used.  You may also want to update your Will to reflect these wishes and make your family and friends aware that you have done so, and what they are. As your Will and Living Will are both documents that should change and grow with you throughout life, logging your wishes via one or both of these means that your recorded preferences will always be up to date. 

It should be noted that this new ‘opt-out’ proposal will only apply to those over 16 (anyone aged 12-15 may still “opt in”) and those with full mental capacity who have lived in Scotland for at least one year prior to their death.

Ultimately, Anne MacTaggart’s proposal is following the new system that is being implemented in Wales in 2015 to tackle meeting the rising number of people within the UK on the transplant list in need of organs.  While this new system may be a welcome change for many, it may be necessary for you to ensure your wishes are clearly recorded.

The Consultation is seeking responses regarding the various proposals and will close on 23rd October 2014.”


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