As a direct result of this confusion the UK tranplant authority has confirmed 21 cases in the last 6 years in which the wrong organs may have been taken from donors (although they acknowledge there may be further, as yet unidentified, cases). The authority also confirms that although the families of the deceased donors involved had given their consent to the removal of, and use of, their loved one's organs the donation may not actually have been in accordance with the deceased's actual preferences. This is hugely significant from a legal perspective.
Section 1 of the Human Tissue Act 2004, which needs to be read in conjunction with Schedule 1 of that Act, makes it clear that the removal of an organ and its use in a transplant will only be lawful if 'appropriate consent' has been obtained. Where the organ donor is deceased the fact that the deceased registered on the organ donor register prior to their death is deemed to be acceptable.
Furthermore, s.3(6) Human Tissue Act 2004 makes it clear that the fact the deceased has given consent to the use of their organs is determinative of the matter. Nevertheless it is good practice to consult the deceased's family, advise them that their loved one has consented to the use of their organs in this way and seek the family's acquiescence in the decision. The family does not, however, have any legal right to veto the deceased's decision although the transplant team retain the discretion not to use the deceased's organs if they believe it would cause unnecessary distress. this much is made clear by the Human Tissue Authority's Code of Practice governing Organ Donation.
In this case it appears that organs may have been removed and used without appropriate consent. Yes the deceased were all on the organ donor register but the suggestion is that organs may have been removed and used in a way which did not accord with the deceased's consent (e.g. the deceased may have consented solely to the removal and use of their kidneys, but actually also ended up having their heart removed and used in a transplant). This poses two potential difficulties for all involved here:
- The lack of appropriate consent may mean there has been a breach of s.1 Human Tissue Act 2004 and thus a criminal offence under s.5(1) Human Tissue Act 2004; and
- The lack of a valid consent may also amount to the tort of battery.
As well as the legal ramifications associated with this story, there are also practical ramifications for us to think about.
Understandably there is considerable concern that this news will have a detrimental impact on public confidence in both organ donation generally and registering on the organ donor register specifically. Given that the available figures all point to the fact that the the demands for donor organs far outstrip demand, this story could not be much worse for the UK transplant authority.
