ABSTRACT
We have already discussed the case of Re Y (1996). There is also BMA Guidance on this topic. Under a section headed ‘Adults lacking capacity to make decisions’, the BMA Guidance states that ‘provision must be made for those adults who lack the capacity to make an informed decision about organ donation … It should not be assumed that all people with learning disabilities are unable to make decisions about these issues, nor should it be assumed that they would not wish to donate organs after their death’. Up to this point, this is perfectly reasonable and, indeed, quite ‘politically correct’ in its attitude to persons who have learning disabilities. The Guidance continues: ‘Information should be provided in a way individual patients are able to understand and to allow them the opportunity to express their own views about organ donation.’ However, the Guidance then turns to the position of patients who ‘lack all capacity’ because they are in a coma or do not have sufficient capacity to make a decision about organ donation. The King’s Fund Institute report suggested that adults lacking mental capacity might be considered ‘presumed objectors’ in a system of presumed consent. Here, the BMA disagrees and again argues that ‘those who lack mental capacity should be given the same opportunities to perform altruistic acts and it should not be assumed that they would not wish to donate’. One cannot reasonably disagree with the sentiments of not second-guessing persons lacking mental capacity but, with respect, this is a somewhat strange approach in relation to patients who have never had the mental capacity to understand far less complicated matters, let alone human organ donation. The BMA also says that ‘there must be established mechanisms for a proxy, or legal representative to opt out of donation on behalf of someone who is not mentally competent to make a personal decision’. What does this mean? The current system in the UK is an opt-in system, so consent is never presumed. Are they suggesting that consent would be presumed because one cannot assume they would not want to donate their organs? With respect, this can have no application to the patient with the mental age of four or five or to the persistent vegetative state (PVS) (see p 303) patient who has never expressed a view on organ donation while competent, before the onset of PVS. It must be equally dubious to assume that mentally incompetent adults would wish to donate organs any more than the rest of the competent adults in the rest of the population.
