Misguided presumptions: British Medical Association (BMA) and National Institute for Health and Clinical Excellence (NICE) guidance on organ retrieval and 'opt out' or 'presumed consent'

Abstract

Three documents have been produced in an attempt to increase the number of organs available for transplant: a National Institute for Health and Clinical Excellence (NICE) clinical guideline, a British Medical Association (BMA) report and a Welsh Government white paper. All three are ethically flawed: NICE and the BMA recommend that whenever there is intention to withdraw life-sustaining treatment and death is expected, patients should instead be stabilised to assess for donation. This is contrary to patients' best interests, the principles of mental capacity legislation and current criteria for accessing intensive care units. Regarding consent, the BMA and Welsh Government recommend an 'opt-out' policy, but consent in law requires information and cannot be 'presumed' or 'deemed' on the basis of failure to express or register 'opting out'. The language of all three proposals is manipulative, and patient trust may be undermined because the doctor's attention must move from the interests of the patient to those of the unknown organ recipients.