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Organ donation – the law is changing

Published: 01 March 2021
Time to read: 4 mins

Organ donation – the law is changing

As of 26 March 2021, in Scotland we’re moving to a new “opt out” system. This will mean most adults will now be deemed to be willing donors of all organs and tissue, unless you make your wishes known.

Who does it apply to?

The new system applies to all adults (aged 16 or over), unless:-

  • they lack the “capacity” to understand this change at the time into comes into force (for those of us with loved ones whose capacity might be dwindling, perhaps try to start those difficult conversations and help them to express their wishes, now, to avoid any questions later about whether they fall into this category); or
  • they have lived in Scotland for under a year at the time of their death.

For those of us with loved ones whose capacity might be dwindling, it’s worth starting to have those difficult conversations and help them to express their wishes, now, to avoid any questions later about whether they fall into this category.

Do I have a choice?

Yes!  Although people will be deemed to be willing donors, you do still have a choice, what you need to do is find a way to voice that choice by making your wishes known.

If you don’t, the default position will be that you are not only deemed to be a donor of all organs and tissue, but your consent is also implied for medical professionals to conduct all tests and procedures necessary to check compatibility before any such transplants.

It isn’t an all or nothing situation. Every individual has varying views on what organs or tissue they would be willing to donate and it is entirely up to you what (if any) organs or tissue you donate.

Likewise, those views can also fluctuate as we age and as our personal circumstances, beliefs, faith and world views change, so no choice is ever “set in stone”.

How do I make my decision known?

The best way to record your decision is on the official Organ Donation Scotland website.

You can amend your decision any time after registering, if you change your mind.

If the time comes when donation does need to be considered, the medical staff will check the NHS Organ Donor Register to see your wishes.

Do I need to tell anyone?

Once checking the Register, medical staff will let your friends or family know whether you have recorded any wishes.

However, they will still check if this was your latest view to avoid proceeding with any donations you may not have wished.

As such, although you may record your wish online, it is still vitally important to ensure those around you know what those wishes are.  More so, if you haven’t registered on the website.

Telling your friends or family, or your Attorney(s) will prevent any surprises, but, more importantly, it will alleviate any potential stress or emotional uncertainty around those decisions when your nearest and dearest will, already, be going through a very difficult time.

Should I put my wishes in my Will?

Decisions regarding organ or tissue donation need to be made swiftly, but Wills are (usually) not read until much later, so any wishes noted in a Will can be neglected.  This can be awkward if you express a view in your Will that differs to what your family have advised the doctors.

If you would prefer to share your views with your solicitor, because you feel more comfortable having these frank discussions with someone independent, you could set out your wishes in a letter, but make it clear to your friends and family that you have done so and ensure they know where it can be found (and keep a copy in the home) should the time come for it to be read.

That said, voicing your opinions really is the best way to ensure they are known and followed.

Do I need to think about it now?

Even if you have no strong views and are happy to be considered as a donor, registering that decision or making it known can take a massive burden off the shoulders of those you leave behind.

We therefore recommend making any views known not just now, but periodically over time, even if it is just to confirm those views remain unchanged.

For more information, read our organ donation guide.

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