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On 26 March 2021, the provisions of the Human Tissue (Authorisation) Scotland Act 2019 will come into force.  The effect of the Act is to apply an “Opt-Out” system of organ donation whereby there will be a legal presumption that, in the absence of any evidence to the contrary, persons dying in Scotland have consented to the donation of the most commonly donated organs, including kidneys, heart, lungs, liver and tendons, where the circumstances make donation possible.

The change has been prompted in part by the indication that only 1% of the population die in circumstances suitable for donation, making every case count.

Safeguards are built into the legislation and the family will continue to be consulted prior to any organ collection for their consent, as now.  In the event of there being no immediate family, efforts will be made to consult close friends.

The presumption will not apply to children under 16, incapable adults, adults who have not lived in Scotland for at least 12 months prior to their death, or more generally to anyone who has left any evidence indicating that they do not wish their organs to be donated.

The Act does not prevent anyone recording their wishes, for or against donation, using the existing Organ Donor Register https://www.organdonationscotland.org/your-decision/how-register.  Donors can elect for only specific organs to be donated if they do not wish to give a general consent and there is also the flexibility to amend or change wishes from time to time. 

The Register is not compulsory and intentions can be made known in other ways, including a simple conversation with the family or handwritten or typed up notes.  Discussions with a Solicitor can also include a conversation on organ donation, as part of planning for the future.

If you would like to speak to a Solicitor about your own estate planning, please contact Stronachs’ Private Client Team.

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