Mental capacity and ‘opt out’ for organ donation: Principled presumptions?

In recent years, Wales and England have introduced so-called ‘opt out’ organ donation systems with the passing of the Human Transplantation (Wales) Act 2013 and Organ Donation (Deemed Consent) Act 2019, respectively. Both Acts stipulate various excepted persons, including based on age, residency, and mental capacity. The mental capacity exception raises concerns as it is, we argue, at odds with our ordinary understanding of mental capacity per the Mental Capacity Act 2005. Whilst the Mental Capacity Act 2005 commits to a functionalist approach, the same cannot be said for the opt out legislation. Rather, both the opt out Acts create mental capacity exceptions that tacitly require the adoption of a status-based approach, which is reinforced by the accompanying Codes of Practice. This article therefore contributes to a body of literature that questions the supposed legal commitment to functionalism and to an aspect of the organ donation debate that has been neglected. We argue that the move to a status-based approach is a significant deviation and requires a clear supporting argument that remains absent. There is a short-term need, then, for the Codes of Practice relating to both the Mental Capacity Act 2005 and both opt out Acts to be revised and reduce the risk of confusion and error.