Donating organs: Who decides
You can choose to record whether or not you would like your organs to be donated (if possible).
The Human Tissue Act 2008 sets up a decision-making framework for organ donation.
The starting point is to check if you had made an informed decision before you died. If not, or if there’s any doubt, your immediate family will usually get a chance to consent or object to organ donation.
Note: The person you’ve appointed as power of attorney no longer has the ability to make decisions on your behalf once you die. Decisions to be made after you die (such as burial or cremation, and funeral arrangements) will mostly be made by the executor you name in your will (or the administrator, if you don’t have a will). However, when it comes to deciding whether your organs can be donated, the executor/administrator can help facilitate this decision, but doesn’t make the decision themselves.
Summary of the decision-making hierarchy
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. When you die:
- first, the doctors will need to find out if you consented or objected to organ donation before you died
- if not, and if you haven’t appointed someone to decide for you after your death, then your immediate family decides together
- if there’s not a decision from your immediate family, then any close relative can decide – but their consent can also be overridden by another close relative.
Although your consent/objection is technically at the top of this hierarchy, in practice things are different. The Human Tissue Act lets the doctors decide not to act on your consent, and doctors can use that freedom to choose not to go ahead with organ donation if your family object or are distressed about it.