Over at Dizzy Thinks I seem to have got myself into an impasse with the titular member of the blog over exactly what current law is on organ donations and presumed consent, and over the finer points of what such a system means. In particular here I have drawn attention to the current law on organ use and in particular to Part 1 Section 6 of the Human Tissue Act 2004.

Activities involving material from adults who lack capacity to consent
Where—

(a) an activity of a kind mentioned in section 1(1)(d) or (f) involves material from the body of a person who—
(i) is an adult, and
(ii) lacks capacity to consent to the activity, and

(b) neither a decision of his to consent to the activity, nor a decision of his not to consent to it, is in force,

there shall for the purposes of this Part be deemed to be consent of his to the activity if it is done in circumstances of a kind specified by regulations made by the Secretary of State.

My interpretation of this is that if you are unable to convey your wishes and have not made plans to allow anyone to know your wishes, the doctors are within their rights, according to certain circumstances, to put you forward for organ donation and similar. What they are allowed to put you forward for is limited because of the presumed consent, but the most essential part for saving lives.

And why do I interpret it this way? Well at first simply because that was the wording but after Dizzy, on the other hand, gaveanother interpretation on the law, one that he unfortunately doesn't explain.

the section you've quoted refers to a very small group of people, i.e. people that would be known in America as "John Doe". It also clearly states "neither a decision of his to consent to the activity, nor a decision of his not to consent to it, is in force". The state has given itself the power to do something in a very specific circumstances which do not exist until they exist though so it doesn't make the default option "in" actually.

I decided to see if there were any precedents on the language used for my belief, and lo and behold there are discussions about "capacity" in terms of consent all over the medical literature of this land, all of which pointing to the same legal guidance.

A person is without capacity if, at the time that a decision needs to be taken, he or she is "unable by reason of mental disability to make a decision on the matter in question; or unable to communicate a decision on that matter because he or she is unconscious or for other reason."Law Commission, Pages 32-48, 1995

So while it is no definite proof of correct interpretation I fail to see why the terminology of people that lack the capacity to consent would change for this one instance of managing organs. If it is the case that I'm right then it is clear we live under a law that if you don't make a conscious and legal effort to make your stance clear hospitals may assume your consent.

This revelation wasn't what I expected in all honesty, and came out of a search for answers when myself and Dizzy couldn't agree on the realities of the current system for organ donation versus a proposed presumed consent system. To me it is perplexing that someone can argue semantics when they are not relevant to real world outcomes but I guess this is the way the political argument works. Dizzy again...

What is actually clear in the law is that the default status is neither in or out. All that exists is that state has the power to take a decision in a temporal relation to a decision being required. Prior to the moment where such a decision is taken there is no presumption for the person in question which is the difference between that piece of legislation and the proposals being made.

The way I see it is that for all that is said in this convoluted language, the realities are the same. Regardless of your legal status, if you die your organs can either be used or they can't be used. There is no middle ground for your organs, it is black and white. So for someone to suggest that we're not in either a presumed consent system of sorts already or a system where we're automatically opting out of organ donation (depending on interpretation of the law), simply because of the legal terminology of our level of choice in the matter, I have to really take those arguments as facetious and besides the point.

Let's face it, as it stands if we don't make a choice our organs either go to waste or they have the potential to get used without anyone in this country having realised it, possibly even the hospitals. Just because we haven't sat down and made a decision doesn't mean that we can tick the "undecided" or "don't care" box when we die, because by being undecided or not caring we default to one position or the other and our whole life is defined by that assumption by the state. Let's just clear up all this ambiguity, accept the findings of the recent Organ Donation Taskforce report that encourages greater discussion with patience about organ donation and recognition of those that take part, and move in to a system we can all be more confident of where we stand on our individual rights