The law should be clarified to make clear that removing organs for transplant may be in a donor’s “best interests”, the new National Clinical Director for Transplantation says.

Chris Rudge, who takes up the newly created post next month, says that the definition of a patient’s best interests should be drawn more widely, to include honouring a wish that his or her organs should be used to help others.

At present, he says, doctors who work in critical care units, where most potential donors are treated, operate in an ethical “grey area”.

Mr Rudge, a former transplant surgeon, told The Times: “Doctors are ethically obliged to behave in a way that is in the patient’s best interests. But the law does not define clearly what that means. I would like to see a recognition that a patient’s best interests can encompass aspects beyond the purely medical. If they have expressed a wish to become donors, then it is in their best interests that these wishes should be satisfied.”

He believes that broadening the definition would, for example, enable a critical care doctor to keep a patient alive for an hour or two longer, even when hope of recovery was gone, to enable organs to be collected.

A doctor will already do this to give time for a relation to reach the hospital. But to do it solely to fulfil a patient’s wish to donate organs has worried some doctors.

“If we can clarify these grey areas, it would support doctors in making these decisions,” said Mr Rudge, who has been given the task of increasing organ donation by 50 per cent in five years. Unlike the Prime Minister, Mr Rudge does not favour moving quickly to a system of presumed consent, in which it would be assumed that everybody was in favour of giving their organs for transplant unless they had specifically said otherwise.

“Presumed consent on its own is not the solution to greater organ donation rates,” he said. “We must wait until it has been considered in great detail by the task force set up by the Department of Health.

“And the question to ask is not whether presumed consent is a better way of getting organs for transplant, but whether it is a better way of getting consent.”

Even under presumed consent, doctors would still have to seek the permission of relatives to remove organs, and a proportion would refuse.

“Spain has the best results and the architect of their system, Professor Rafael Matesanz, has said very explicitly that it is not the legal system but the administrative arrangements that account for their success,” Mr Rudge said.

Donor rates in Spain are nearly three times those in the UK, in spite of widespread support for organ transplantation here. A key feature of the Spanish system is the presence of transplant co-ordinators in hospitals: senior people, many of whom are doctors. “Here most come from nursing backgrounds,” Mr Rudge said. “It’s crucial to have senior doctor support.”

This is one reason why he favours clarifying the “best interests” rule, so that doctors feel supported.

“I want to take away an area of concern. Doctors who are doing what donors wanted feel, potentially, out on a limb, and so are families.

“We may need to seek legal advice. The Mental Capacity Act doesn’t define the phrase clearly.”

Unless the whole procedure can be improved, Mr Rudge fears that the situation in Britain over organ donation could get worse. The European Working Time Directive and new contractual arrangements for doctors and surgeons mean that long hours worked at times to make the present system function are not going to be an option. “We have transplant co-ordinators who are at times working 24 hours non-stop,” he said. “Without improvements, it’s going to get more and more difficult.”

Mr Rudge wants to see increases in staffing, so that co-ordinators can spend more time with each family. “It’s about establishing a relationship in a short time with very distressed people — not trying to persuade them, but trying to talk to them about what the potential donor would have wanted,” he said.

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