Organ Donation (Deemed Consent) Bill

Explanatory Notes

Compatibility with the European Convention on Human Rights

37 This is a Private Member’s Bill. Accordingly, a statement of compatibility with the Human Rights Act 1998, in accordance with section 19(1)(a) of that Act, is not required. Nonetheless, in the Government’s view, the provisions of the Bill are compatible with the European Convention of Human Rights.

38 The Bill provides for a system of ‘deemed consent’ to organ donation. Consent by an adult will be deemed to be in place unless they made an express decision not to consent, they appointed someone to make the decision on their behalf, an exception applies or there is information that would lead a reasonable person to conclude that they would not have consented.

39 Article 3 (Prohibition of inhuman or degrading treatment) could potentially be engaged if, for example, a deceased person’s organs are removed and a close relative is unaware or has not had reasonable opportunity to provide information that would suggest the deceased would have in fact objected to the organ donation. However, it is unlikely that there would be any interference due to the exceptions and because close relatives are always consulted before organ donation goes ahead. The Bill is very likely to be compatible with Article 3.

40 The right to express consent or refusal in relation to the removal of a spouse’s tissue falls within the ambit of Article 8 (Right to respect for private and family life) and if there is a lack of information about deemed consent then Article 8 may be interfered with. However, there will be a year long intensive campaign followed by ongoing communication to ensure the public are familiar with the law, and there are safeguards in the Bill, thereby reducing the likelihood of any unjustified interference with a person’s Article 8 rights.

41 Article 9 (Freedom of thought, conscience and religion) may be engaged and deemed consent has the potential to interfere with a person’s right to freedom of thought; conscience and religion if those rights were not respected. A person can make their decision to consent or not to consent, can appoint a representative to decide on their behalf, or family or close friends can confirm the wishes of the deceased. These safeguards in the Bill reduce the likelihood of any potential interference with a person’s Article 9 rights.

42 The provisions of the Organ Donation (Deemed Consent) Bill are considered compatible with ECHR and any interference would be justified as a proportionate means of achieving a legitimate aim.


Prepared 29th October 2018