Wales' opt-out organ donor bid 'may not be legal'

NHS Organ Donor card Wales' planned opt-out donor system may come under human rights law

An attempt to increase the supply of donated organs in Wales might not be legal, it has emerged.

Last-minute objections could prevent the assembly government introducing an opt-out system for donating organs, BBC Wales has learned.

The attorney general is understood to be considering whether the matter raises human rights issues which are not devolved.

Health Minister Edwina Hart's planned statement to AMs has been postponed.

The assembly government wants to bring in a "soft opt out" organ donation, which means people in Wales would need to indicate that they would not want their organs given for transplant in the event of their death.

It would be completely different from the current "opt in" scheme operating across the UK, and supporters say it would generate more organs for transplant.

Ms Hart has already laid the draft request for powers for an "opt-out scheme" before AMs.


What the assembly government wanted to do was to switch to a system whereby people would have to "opt out" if they objected to donating their organs.

That wouldn't mean that doctors could rush in and take what they want, there would still be consultation with the next of kin, they would have to agree, but it would move things forward.

But to do that, the assembly governments needs an LCO - legislative competence order - a transfer of powers from Westminster to Cardiff, to make the law and that's where the problem's arisen.

The assembly government was told there could be a legal problem about this, because this is not just about health, it's also about things like individual liberties.

There are people in Cardiff Bay who think those objections should have been raised much earlier and who suspect that there are ministers in the UK government who are unhappy with the idea and that they are searching round for legal objections to prevent it from happening.

But it has now emerged the bid may extend beyond the area of health, which is devolved, into areas still reserved to Westminster.

The assembly government says it was still waiting for details of the concerns that have been raised.

If the legal advice is that the proposals do cross into areas of individual liberty and human rights, then it is possible that it would be determined that a system of organ donation cannot be devolved.

A statement by Ms Hart to the assembly on the proposed legislation scheduled for Tuesday is now to be given on Wednesday.

An assembly government spokesman said ministers believed the organ donation scheme "primarily relates to the field of health and health services".

The spokesman said: "We are committed to receiving the additional powers to benefit people who require lifesaving transplants and our bid for these additional powers is supported by clinical bodies including the British Medical Association and the Royal College of Nursing, and charities such as the British Heart Foundation and Kidney Wales Foundation.

"As the first minister has indicated, there remains a question as to whether the consent for organ donation relates solely to the field of health and health services and we are still waiting for notification of the precise concerns which have been raised by the UK government including the attorney general."

The spokesman added: "We recognise that this is an emotive and sensitive subject and that's why we have taken considerable time on gauging people's views on organ donation

"We have no intention of rushing into a presumed consent system in Wales as the [legislative competence order] simply gives us the powers to legislate in this area."

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