Code of practice, and public education, needed for new organs law: Faculty

Plans for a "soft opt-out" system for organ donation in Scotland need to be improved, according to the Faculty of Advocates.

In a submission to Holyrood's Health & Sport Committee, which is considering the Human Tissue (Authorisation) (Scotland) Bill at stage 1, Faculty calls for annual publicity campaigns so that new residents in Scotland can be informed about the policy of deemed consent, and for a code of practice for those who will have to operate the new law.

Under the bill, consent to organ donation for transplant, by someone resident in Scotland 12 months or more, will be presumed unless the person has opted out.

Faculty said the bill did not specifically require information-raising campaigns at regular intervals, and it was "far from obvious" that individuals coming from non-UK countries would naturally become aware of the policy of deemed consent simply from 12 months' residence in Scotland. "Accordingly, the justification for deemed consent based on 12 months’ residence in Scotland, and by implication deemed knowledge of the policy, requires some underpinning in light of the modern mobile population", its evidence states. 

"If deemed consent based on 12 months’ residence in Scotland is to be considered fully justifiable, we suggest that s 1 of the Bill [which sets a duty to promote information and awareness on how deemed authorisation may be given] should contain a provision requiring that campaigns to raise awareness should take place at least every 12 months." A similar provision is contained in the equivalent Welsh legislation, Faculty observes.

It also calls for further consideration of whether deemed consent should apply after less than 12 months to people moving from one part of the UK to another, having regard to the different opt-out systems in place, in case people assume wrongly that deemed consent continues to apply as soon as they move.

In relation to a code of practice, Faculty said experience suggested that a code would be of great assistance to those who had to apply the provisions in real life situations, and it would encourage best practice.

"We consider that the lack of such a provision is a significant deficiency in the bill", Faculty states. "It would help ensure that the legislation is applied in a uniform way throughout Scotland and reduce the risk of different health boards or indeed individual hospitals taking different approaches in their implementation of the underlying policy." Again, such a code has been prepared in Wales, and Faculty regards it as "very helpful".

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