Organ donation and mental capacity

A new law under which all adults in England will now be deemed as potential organ donors after they die — unless they record a decision not to donate or are in one of the excluded categories — came into force on Wednesday 20th May.

One of the excluded categories under the Organ Donation (Deemed Consent) Act, will be those who lack the mental capacity to understand the new arrangements and take the necessary action. Whilst on the face of it this may seem a relatively straight forward exemption, I wonder if it more complex than it initially seems.

The concept of death is not something that a lot of individuals with learning difficulties, or those who have suffered a brain injury at a young age, necessarily understand and it is one that many parents and carers don’t want them to understand due to the fear it may invoke in them. However, it must be a concept that is central to the discussion.

There is also the rather complex abstract notion that elements of your body could continue to ‘live’ after you have died and that these organs can then assist others to continue to live – even though you will be dead.

I think that as well as the practical issue of how and when you decide to support an individual to begin to understand these concepts there will be consideration as to whether it is in an individuals best interest to actually make that decision while they are still alive.

I note that when an individual has not expressed an opinion, specialist nurses will be allowed to support families to make a decision based on what their loved ones would have wanted and wonder if, at times this will be used as a way to avoid awkward conversations as well as when it its truly in the individual’s best interests not to explore the difficult concepts as outlined above.

Personally, I think this is a piece of legislation that is long overdue and I have always been forthright that I would wish my organs to be given to anyone that might want them once I no longer have a need for them. However, when it comes to issues of capacity, I suspect that it is not going to be as straightforward as it initially seems.