Donating organs: Who decides

Overview

While decisions about your burial or cremation are made by your “personal representative” (the executor under your will or, if you don’t leave a will, your closest relative), a different legal framework exists for organ donation under the Human Tissue Act 2008. This Act gives priority to any informed decision you had made while you were alive, but allows your family to give consent to – or object to – organ donation if you hadn’t made any decision. In this area the personal representative plays only a facilitating role, not a decision-making one.

Note: Another step you could consider is to make an “advance directive” about future medical treatment should you lose the ability to make decisions. These are sometimes also called “living wills”. For information about this, see the chapter “Disability rights”, under “Agreeing to treatment or services: The issue of “consent””

Summary of the decision-making hierarchy

Human Tissue Act 2008, s 31

The Human Tissue Act sets up a hierarchy of people who can give legally valid consent, or make a legally valid objection, about organ donation:

  • At the top is the deceased person – the doctors will first need to find out if the deceased consented or objected to organ donation before they died.
  • If the deceased hadn’t made any decision, and hadn’t appointed someone to decide for them after their death, then the immediate family decides together.
  • If there’s not a decision from the immediate family, then any close relative can decide – but their consent can also be overridden by another close relative.

However, although the deceased is formally at the top of this hierarchy, in practice things are different. The Human Tissue Act lets the doctors decide not to act on consent given by the deceased, and doctors have usually always used that freedom to choose not to go ahead with organ donation if the family oppose or are distressed about it.

Note: Unlike some other countries, New Zealand doesn’t have a national register for recording people’s consent to being an organ donor. Driver’s licence information is the closest thing we have to a register. But having “Donor” on your licence doesn’t of itself count as giving informed consent to organ donation – this just indicates to medical staff that you’re a potential donor, and from there they will ask your family if they know if you had clearly given or refused consent, apart from your driver’s licence. In the same way, saying no to being recorded as a donor when you apply for your licence or renewal doesn’t count as an informed objection.

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