The Welsh Government’s white paper on organ donation published today demonstrates a determination to switch Wales to a system of ‘presumed consent’, where only those who have registered an objection won’t be considered as potential organ donors when they die.
The consultation is very much about how the new system should operate, not whether the change should be made.
The white paper invites submissions on essentially secondary issues such as how long a person should have lived in Wales before consent can be presumed and how people’s objections should be recorded.
It’s called a soft opt-out system, ‘soft’ referring to the fact that there will still be a sensitive conversation with the dead person’s relatives before organs are removed. But that falls short of a guarantee that the relatives’ wishes will always be respected.
The plan is that everyone who does not opt-out will be in precisely the same position as people who currently register as donors. If a close relative objects to organs being taken and cannot be persuaded otherwise, the relative’s wishes are normally respected. However, I understand that in a few cases an objection has not been heeded.
The hypothetical example I was given was ‘the second cousin who had just flown in from America’. In other words, the doctors and other health professionals make a judgement about how close and how grief-stricken the relative is. Although they will no longer be able to point to an active decision to become a donor, a passive decision not to opt-out will be treated as having equal force.
This tougher approach is justified by pointing to the fact that there are 300 people in Wales waiting for transplants and on average one of them dies every week.
The heath minister, Lesley Griffiths said:
“The shortage of organs and tissues continues to cause unnecessary deaths and suffering, both to patients waiting for a transplant and their relatives. The Welsh Government believes that this legislation will go a long way to increasing the number of organs and tissues available.”
Of course, no-one is suggesting that Welsh patients should have any priority if the new system increases the number of organs donated in Wales. Strictly medical criteria, such as suitability and urgency, will remain decisive. This raises the question of whether a common approach across the whole of the UK is required. Whitehall is sometimes quite happy for a devolved administration to try out a controversial idea which it might copy if the public embrace it.
Still there was some disquiet at Westminster when Welsh ministers sought the powers to bring in transplant donor legislation under the now abandoned system of legislative competence orders.
Is this really just devolved a health issue or is it non-devolved question of human rights?
I understand that for now there will be no attempt to intervene. But when the Welsh Government introduces a bill to enact the new legislation, the Attorney General could take the whole matter to the Supreme Court.