Consent to organ donation in Wales: Unjustified Intergenerational Inequality?

Conference: Postgraduate Bioethics Conference 2019

Dates: 30 October 2019

Abstract:

Since the development of early medical ethical codes, enshrined in International Law (in the Nuremberg Code and Declaration of Helsinki), Consent before medical treatment has been a cornerstone of the doctor-patient relationship. After the scandal of Alder Hey Hospital, Consent before the donation of Organs has rightly become a cardinal legal and ethical requirement. Consent is understood in Ethics and Law, as a form of positive autonomous authorisation. A valid Consent requires that the individual has the psychological capacity to Consent to treatment. Additionally, in making an intentional decision, the patient must be informed and substantially non-controlled. It is enshrined in Law that once a patient decides (to accept or refuse treatment), that decision is to be respected. It is assumed in the Law of Wales that the same conceptual basis is used for all those who Consent to Organ Donation. This presentation will rebut that presumption of equality, arguing that the development of the Human Transplantation (Wales) Act 2013 has fundamentally altered the conceptualisation and nature of Consent as an active autonomous choice. The Act enshrines four conceptually uncomplimentary processes of Consent in the Law of Wales. These processes differ in the way they recognise capacity, the amount of understanding needed for consent, and methodology needed to indicate a choice. More fundamentally, the process used alters the legal respect given to a decision. These processes disproportionately affect individuals in Wales depending on their age: Under 16’s who are Gillick competent; Those between 16 – 17 y.o.a.; Those who are 18 -22 y.o.a.; Those who were over 23. The use of distinct forms of legal consent means that potential donors have given permission to donate organs on a drastically different ethical basis.

Source: Manual