Deemed consent for organ donation in Wales

01 Dec 2015

Today marks the coming into force of the Human Transplantation (Wales) Act 2013, legislation passed by the Welsh Assembly under devolved powers, applying only in Wales.

The Act is designed to change the way consent is given to organ and tissue donation in Wales.  In the absence of express provision with regards to consent to organ and tissue donation, consent will be deemed to have been given in most cases.  This means that, unless someone has expressly objected to the organs or tissue being donated after death, they will be treated as if they had consented to such donation.

There are however exceptions to this rule.  Deemed consent will not apply to people:

  • Aged under 18;
  • who have not lived in Wales for at least 12 months before death;
  • lacking capacity to understand that consent could be deemed in the absence of express action; or
  • living in Wales who die outside Wales.

Where a person cannot be identified, or their next of kin found, they will not be subject to deemed consent as it will be impossible to check whether they met the necessary criteria.

In addition, deemed consent will not apply if a relative or friend of long standing objects on the basis that they know the deceased would not have consented to organ or tissue donation for transplantation.  This is known as a “soft opt-out system”.

Healthcare professionals will need to familiarise themselves with the criteria, be aware of the soft opt-out position and ensure that they are able to explain this to relatives if asked the question.

BLM is happy to provide further information, specialist advice and/or training on the new provisions, as required.


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Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to customers of BLM. Specialist legal advice should always be sought in any particular case.

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