The Transplantation (Authorisation of Removal of Organs etc.) (Scotland) Bill was introduced by Anne McTaggart MSP on 1 June 2015. She sought a system of implied consent to organ donation in Scotland. The Bill fell in February this year, but a recent motion by the British Medical Association means that this issue is likely to raise its head again.

At their recent annual conference, the BMA voted to lobby Westminster – as well as the devolved administrations in Scotland and Northern Ireland – to introduce an opt-out system for organ donation.

The proposed change is not without precedent. In December 2015 the Welsh Assembly introduced a presumed consent system. The Human Transplantation (Wales) Act 2013 applies to anyone living in Wales for at least 12 months prior to their death. They are presumed to have given their consent to donate unless they have registered their objection. This is subject to a family member informing doctors of the deceased’s unregistered objection.

The Guardian reported recently that between December 2015 and May 2016, 32 organs were donated in Wales through presumed consent; the donors had neither opted out nor joined the organ donor register.

The law in Scotland provides that any individual over the age of 12 with capacity can consent to the use of their organs and tissues. Since 2006 families have not been able to overturn an individual’s decision to opt on to the organ donor register.

90% of the Scottish public support organ donation, but only 40% were on the register in 2013/14. Despite this, the Scottish Government felt that the Bill was not an effective means to increase organ donation rates. They had concerns over the practical applications of the Bill, particularly the introduction of consent by an appointed proxy. The proxy would have made decisions about organ removal after the individual’s death.

The Scottish Government committed to bringing forward its own legislation after the 2016 elections. The motion by the BMA is likely to increase the pressure for this to happen sooner rather than later.

Any change in the law in Scotland will take us away from a system of informed consent to organ donation, to one of implied consent. Care must be taken to approach any change sensitively. There is a risk of undermining the individual’s bodily integrity while responding to the need to increase the organ donation rate.

Striving to increase the rate of organ donations is laudable, but implied consent is in stark contrast to the current system, premised upon the charitable will of the individual. It’s striking that parliament may be moving away from informed consent in this context just as the courts underscore its importance in clinical negligence claims.