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Communtity Law Manual | A death in the family | Consent to organ donation: The decision-making hierarchy

Donating organs: Who decides

Consent to organ donation: The decision-making hierarchy

First level: A decision by the deceased

Human Tissue Act 2008, ss 14, 16–18, 31(2)(a)

The doctors will ask your family if they know what your views were about organ donation. If you had given informed consent by recording it in writing or telling two witnesses about it (a driver’s licence doesn’t count), that gives the doctors the legal power to use your organs. But if you had decided you didn’t want to be an organ donor (again, by writing down the decision or telling two witnesses), then that stops everything and the doctors can’t use your organs.

Although your informed consent allows the doctors to go ahead with organ donation, they’re legally required to take into account the views of your immediate family/whānau and their cultural and spiritual needs, values and beliefs. If your family aren’t happy with your organs being used, then in practice the doctors almost always treat their wishes as most important and don’t go ahead with donation.

The family can’t legally override an informed decision that you had made to not be an organ donor. However, simply choosing not to have “Donor” on your driver’s licence doesn’t count as an informed objection. So legally the family can override that and give valid consent to organ donation, and the doctors can act on that consent. What’s recorded on a driver’s licence doesn’t have any legal status as a record of your wishes – it’s only a general indication that you’re a potential organ donor.

If your family aren’t aware of any decision you’d made about this, or of you choosing someone to make decisions for you (a “nominee”), then the decision is up to your immediate family/whānau – or, if they can’t agree, on any of your close relatives (see the next three headings).

Human Tissue Act 2008, s 15

Note: If the doctors approach your “personal representative” (your executor under your will or your closest relative) for help in finding out about any decision that you or your family has made, the personal representative must do everything reasonably practicable to help.

Second level: A decision by the deceased’s “nominee”

Human Tissue Act 2008, ss 31(2)(b), 39

If you had appointed someone to make decisions for you about organ donation after your death, called your “nominee”, then that person’s consent or objection counts the same as if you had made a decision – so long as the nominee’s decision is an informed one and meets the other rules that apply to consent and objections under the Human Tissue Act (see below, “When consent to organ donation is valid”).

You have to record or communicate your appointment of a nominee in the same way as for consenting or objecting yourself – that is, by writing it down or telling two witnesses verbally.

You can appoint more than one nominee. In that case, the standard rule is that your nominees all have to consent together in order for their consent to be valid, but that an objection from any one of them will count as a valid objection and prevent organ donation going ahead. However, you can specify different rules about this when you nominate them – for example, you can decide that any one of them can validly consent or object, or you can decide that any consent or objection has to be by all of them to be valid.

Human Tissue Act 2008, ss 37, 38

People under 16 can’t choose a nominee. If you’re under 16 when you die, your parents or guardians will make decisions about organ donation.

Protection of Personal and Property Rights Act 1988, s 106

Note: Any person to whom you’ve given an enduring power of attorney won’t have power to make decisions about organ donation after you die. This is because the attorney’s powers come to an end on your death. (For more details see the chapter “Decision making and powers of attorney”.)

Third level: Decision by immediate family/whānau

Human Tissue Act 2008, ss 31(2)(c), 35, 40

If you hadn’t made any decision (and hadn’t appointed a nominee, or your nominee isn’t available), then the doctors will need general agreement among your immediate family to be able to go ahead with organ donation. The consent is given by a single member of your immediate family on behalf of the rest of the family – that person has to do everything that’s reasonably practicable to consult with and get general agreement from family members who represent all the different interests of the immediate family. That family member then can only consent (or object) on the immediate family’s behalf if he or she believes on reasonable grounds that all immediate family members agree with this – or would agree if they were consulted personally.

Your “immediate family” includes your spouse or partner, children, parents, grandparents, brothers and sisters, step-children, step-parents, and step-brothers and step-sisters. It also includes any other member of your family, whānau or other culturally recognised group who either was in a close relationship with you or had responsibility for your welfare according to your community’s customs and traditions.

Final level: Decision by a single close relative

Human Tissue Act 2008, ss 9(3), 10, 31(2)(d), 36, 41

If there’s not a collective decision from your immediate family, or if it would take too long to get one, the doctors can act on consent given by a single close relative. In the same way, an informed objection from any close relative stops the process, even if another close relative has already given valid consent.

A “close relative” means:

  • your spouse or partner, or
  • if you didn’t have a spouse or partner, then any of your children who are 16 or older, or
  • if there’s no spouse/partner or children who’ve turned 16, then one of your parents, or
  • if there are none of those people, any of your brothers or sisters.

If you’re under 16 when you die, then a “close relative” means:

  • one of your parents, or
  • if your parents aren’t available, any brother or sister who’s 16 or older.

    Note: It’s a criminal offence for medical staff to use a person’s organs if the proper consent hasn’t been given. They can be jailed for up to one year or fined up to $50,000.

Human Tissue Act 2008. s 22

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