Is the Chief Medical Officer right to call for a change in the law?

Let’s overlook that the same CMO, Sir Liam Donaldson, was loud in his lamentations over the retained organs “scandal” at Alder Hey Hospital, Liverpool.

There, parents were encouraged to believe they had been betrayed by a hospital that had held on to the organs of their dead children, in the hope of learning something that could save other children later.

The fallout from Alder Hey has affected attitudes to human tissue ever since, and has led to a bad Act, the Human Tissue Act, and the creation of a needless quango, the Human Tissue Authority, to administer it. You might suppose that having set up such a body, Sir Liam would seek its advice before proposing a change in the law, but that does not seem to have happened.

Would presumed consent work better? The evidence is mixed. Some countries that have presumed consent do get a higher rate of organ donation — Spain, Belgium, and Austria, for example. But Sweden has presumed consent and a lower rate of transplants than Britain.

Spain, with 35 organs per million population per year, is the market leader in harvesting organs, doing almost three times as well as Britain (on 12.5 organs per million).

At least as important is the strong system of transplant co-ordinators in Spanish hospitals, who have the authority to seek organs from suitable donors.

Most British people, when asked, say they would be willing to give organs. But only a minority eventually do so because the circumstances of death must be appropriate — which usually means brain death in an intensive care unit — and doctors must be primed, ready and motivated to harvest their organs.

Technically, it is not necessary to get the next-of-kin’s assent if the potential donor is on the register, but in practice it is always sought, in part because of Alder Hey. For their own reasons, relatives often refuse. A presumed consent — or “opt-out” — system would not change that, since no doctor is going to harvest organs before asking relations, or in the face of their opposition. Nor do many doctors relish the prospect of trying to persuade a grieving family against its will that the person who has died really wanted his or her organs to be used.

There is also an ethical issue here that is important to many people. Organ donation should be a conscious, altruistic act, as blood donation is, not an involuntary legal requirement. Under presumed consent, a donation ceases to be a gift and becomes an imposition.

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