The Human Tissue Act 2004 governs the law relating to the donation of organs from both living and dead donors. Under
the previous law (Human Tissue Act 1961) where a person had given consent to organ donation after their death, relatives would be questioned about whether the deceased had changed their mind.
If there was no evidence of a change of mind, then, in theory, the relatives had no power to overrule the deceased’s wishes. In practice, however, even where the deceased had chosen to donate their organs, relatives were allowed to overrule this consent.
The Human Tissue Act enables a person to give consent for the removal, storage and use of their organs after death. Consent might be evidenced through registration with the NHS organ donor register, by carrying a donor card or by any other means by which it is clear a valid consent is given. The act requires that a decision of deceased to consent to the activity was in force immediately before death.
Where there is no indication as to the deceased’s wishes, then the Human Tissue Act 2004 enables a person who has been nominated by the deceased to act on their behalf to give consent to organ donation. Where there has been no such nomination, a person in a qualifying relationship such as a partner or other relative can give consent.
The relatives have no right in law to overrule the consent (as indicated by the carrying of a donor card) by the deceased to organ donation.
Only if there were evidence the person had changed their mind about the donation, and consent therefore was not in force immediately before death, could it be argued that the organ card could be ignored.
Even though the relatives have no legal right to overrule the removal and transplant of organs, the situation should be handled with great sensitivity and sympathy.
Bridgit Dimond, MA, LLB, DSA, AHSA, is barrister at law and emeritus professor, University of Glamorgan, Pontypridd
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