21 September 2007
The call by UK Health Secretary Alan Johnson for a review of the consent procedures required for organ donation (see BBC news, 20th September) is intriguing as the Human Tissue Authority (HTA), the organisation responsible for regulating organ donation, rejected any review of the law in this area at their public meeting on 6 September 2007 on the basis that consent for organ donation had been thoroughly debated by Parliament when the Human Tissue Bill was scrutinised by Parliament in 2004. Indeed the HTA press release commenting on similar proposals made by the Chief Medical Officer in July pointed to a possible detrimental effect on other areas regulated by the Act stating that ‘the HTA believes that a system of presumed consent for organ transplantation might undermine current provisions in the HT Act for fully informed consent for other purposes, such as body donation for medical science or removal of tissue at autopsies’.
The availability of organs for transplantation is contingent both upon the timing of the removal of organs as well as the consent processes which support donation, and it is part of the statutory remit of the HTA to issue codes of practice relating to various regulatory functions, including a code on the definition of death. The sensitivity of this task is perhaps reflected by the fact that despite assistance from the Academy of Medical Royal Colleges, a final form of the code remains to be published. Recent reports from California of criminal proceedings brought against a transplantation surgeon on the basis of hastening death to procure organs for transplantation, highlights the difficulties of formulating policy in this area.
All this suggests that the procurement of organs for transplantation should not be viewed in isolation. Public trust in the medical profession was severely shaken by the succession of scandals which prompted the implementation of the Human Tissue Act. Indeed the integrated approach to consent which was established by the Act, was commended as a means of rebuilding public trust and as proof of a transition from outdated paternalistic models of medical care. For this reason, any prospective review of the consent model to be used in transplantation should consider not only the advantages and disadvantages of whether everyone in England should be put on the organ donor register unless they opt out, but also the effect such legislation would have on other areas regulated by the Act. The use of human material for research is crucial in developing better health care and effective treatments. If the Government finds a utilitarian approach persuasive in the context of saving the lives of those dying from organ failure, perhaps they should also consider revisiting other areas of the Human Tissue Act where using tissue to save lives is also in the public interest.