OTA position statement on the legal framework for consent to donation
The legal framework for consent in Australia is based on an informed consent or ‘opt-in’ model, whereby individuals are given the option to record their intent or legal consent to donate their organs and/or tissue on the Australian Organ Donor Register. This framework is set by each State and Territory government under their respective Human Tissue Acts.
In Australia the family will always be asked to confirm the donation decisions of the deceased before donation for transplantation can proceed. Although family objection is always tested to ensure that it is an informed decision, donation does not proceed if a family strongly objects.
The informed consent model used in Australia is an ethical and transparent approach which balances the need for organ and tissue donors with the right of Australians to make an informed choice.
As part of the development of the national reform programme to increase organ and tissue donation for transplantation, the Australian Government carefully considered an opt-out consent model and concluded that there is no clear evidence that it contributes to achieving a higher donation rate. The same conclusion has been reached by State governments in recent parliamentary inquiries into organ and tissue donation in Victoria, New South Wales, Queensland and Tasmania.
International experience shows that rather than the legal framework for consent, the key to achieving a sustained increase in organ donation is the implementation of a nationally consistent and coordinated approach to clinical practice reform to maximise identification of potential donors and consent to donation within the hospital system.
While world leading countries such as Spain and Croatia have ‘opt-out’ models, the practice is still to seek family approval before proceeding with donation. Greece also has an ‘opt-out’ model and is one of the lowest ranking donation countries in the world. Professor Rafael Matesanz, the Director of the Spanish National Transplant Organization confirmed just last week on 9 September 2015 that presumed consent is not a key determinant in increasing donation rates.
Australia’s national reform programme aims to improve access to transplants for Australians through a sustained increase in deceased organ and tissue donation by implementing a nationally coordinated approach to organ and tissue donation. Evidence from comparable countries demonstrates that a coordinated national approach, focussed on clinical practice reform around the provision of end-of-life care, improves deceased organ donation and transplantation rates. This change is driven by DonateLife medical and nursing donation specialists who work with their clinical peers and hospital executive to identify and support potential donors, improve donation consent rates, and coordinate organ retrieval for transplant recipients.
It is important for all Australians to make informed decisions about organ and tissue donation and to register their donation decision on the Australian Organ Donor Register. The most important action for Australians to take is to discuss their donation decision with their family members and to ask and know their donation decisions. Less than 1% of all deaths in hospital are in the specific circumstances where organ donation is possible, however many more people have the opportunity to donate tissues as the requirements are not as restricted.