Max and Keira's Law, are you 'in' or 'out'?

The new rules concerning Organ Donation

Max & Keira's Law changing the way organ donations are made

Organ Donation is a highly emotive issue, and for most families comes into question when they least expect it and are often least able to deal with it. Unless someone is a registered organ donor, on their death, the family would have to be approached to confirm whether or not they agree to organs being donated. Time is very much of the essence, which can leave families, making a difficult decision when they are usually still shocked and grieving.

Statistics indicate that almost 80% of adults would consent to organ donation, yet just 37% are registered donors, leaving their families to make the decision in the majority of cases.

On Friday 15 March 2019, the Organ Donation (Deemed Consent) Act 2019 became law and will change the current system, whereby individuals have to opt-in to be an organ donor on their death, to an opt-out system.

The legislation is otherwise known as Max and Keira's Law, after the 9 year old girl whose heart saved the life of a, now, 10 year old boy. Keira's organs were in fact used to save four lives, including Max, after she was tragically involved in a car accident. Max and his family campaigned the Government to introduce an opt out system.

Under the new system, people will be encouraged to register their consent for organ donation or to opt out. If you do not opt out, you will be presumed to consent, although it will still be open to relatives to block a donation. The change is expected to be implemented from April 2020.

The change in system could save up to 700 lives a year by increasing the number of organs available.  There are currently around 6,000 people on the transplant waiting list in the UK and last year more than 400 patients died while waiting for a suitable organ.

If you want to be an organ donor, it will still be best to join the NHS Organ Donor Register by way of a formal registration to avoid any doubt as to your wishes. 

If you do not want to be an organ donor for whatever reason, you will need to register a ‘refuse to donate’ decision on the Register. This is also known as opting-out. 

If you want to change your decision, you can apply to amend the Register.

Whatever your decision, it is still important that you speak to your immediate family about your wishes, given that they may be able to block a donation.

There are also some excluded groups, who will not fall into the presumed consent regime:

  • Those under 18;
  • Those who lack the mental capacity to understand the changes and to ensure their wishes are appropriately recorded; and
  • Visitors and those not ordinarily resident for at least 12 months immediately before their death.

The new system will only come into force in England. A system of presumed consent (i.e. opt-out) has already been operating in Wales since December 2015, where organ donation consent rates are now the highest in the UK at 75% (up from 58% in 2015).

The most common transplants are kidney, heart, liver and lung. Others include; Pancreas, Small bowel and tissues, such as corneas, heart valves, skin and bone.

The system regarding lifetime donations (e.g. kidney, part of a liver, tissue and bone) will remain unchanged.

For more information please visit www.organdonation.nhs.uk.

If you would like to talk to someone concerning your wishes after death please contact a member of our Wills, Trusts & Probate team on 01733 882800 or email info@hcsolicitors.co.uk .

Author

Joseph Stoehr, Solicitor

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This article has been prepared for general interest and information purposes only; it does not constitute legal advice and should not be relied on as such. While all possible care has been taken in the preparation of this article, no responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by the firm or the authors.