AlphaMED Resources · https://alphamedicine.uk/Resources/cases/deemed-consent
Max and Keira's Law and deemed consent
In England, adults who die are treated as willing to donate organs unless they recorded a refusal. Families are still asked, and they agree less often than they did in 2020/21. The argument is over whether silence can ever count as consent.
- Wales starts an opt out system
- Royal Assent for the Organ Donation (Deemed Consent) Act
- Deemed consent starts in England
- Northern Ireland starts Dáithí's Law
- NHS launches its first urgent response to falling donation
Summary
- Max and Keira's Law is the Organ Donation (Deemed Consent) Act. It treats an adult in England as having consented to donation after death, unless they recorded a refusal or belong to an excluded group.
- The case for the change is the shortage of organs. Over 8,700 people were waiting for a transplant in September 2026, and the law aims to create more donors by treating silence as agreement.
- The case against is that silence is not consent, and that families are left to guess. In a 2024 study of 24 NHS staff, interviewed before the law started, staff supported deemed consent in principle but worried about "the notion of informed consent".
- Wales had started an opt out system in December 2015. Scotland followed on 26 March 2021 and Northern Ireland on 1 June 2023.
- Family support has fallen. Family consent or authorisation fell from 69 per cent in 2020/21 to 57 per cent in 2025/26, across the UK.
Dig deeper
- Relatives cannot overrule a recorded decision, but they can block a deemed one. Anyone in a qualifying relationship, from a spouse to a friend of long standing, can stop donation by giving information that would lead a reasonable person to conclude the person would not have consented.
- The NHS says relatives do not have the legal right to veto a decision, yet clinicians "will never proceed if your family objects".
- NHS Blood and Transplant reports that in 602 of 1,092 cases where deemed consent applied, the family did not support donation, or 55 per cent. Families also overruled 167 recorded decisions to donate.
- NHS Blood and Transplant announced its first urgent response to falling donation on 21 September 2026. It says families support donation about 90 per cent of the time when they know the person's decision, and about 50 per cent when they do not.
- Eamonn Ferguson of the University of Nottingham, a health psychologist, writes in October 2026 that anticipated regret, how bad relatives expect to feel if they choose wrongly, explains the drop.
- Jewish donors can register a statement that lets their family consult a rabbi.
- Deemed consent covers routine transplants such as kidneys and hearts. Rare ones, including the uterus, still need express consent, so the womb transplant programme asks families separately.
Ethical issues
| Principle | How it applies here |
|---|---|
| Autonomy | Autonomy belongs to the person, and only while they have capacity. An adult who recorded nothing is treated as having agreed, so their choice is inferred from what relatives say they would have wanted. The test is the person's wishes, not the family's own, and that is where the two can pull apart. |
| Beneficence | Donation helps people waiting for an organ, but only if an organ is offered. In 602 of 1,092 deemed cases the family did not support donation, so the benefit depends on families agreeing, even where the person never chose either way. |
| Non maleficence | The HTA code tells specialist nurses to talk sensitively with families even where consent is deemed. Asking a grieving family can distress them. The code says donation must not proceed where there is no family to ask about the person's last known decision. |
| Justice | The Act excludes under 18s, adults who lacked capacity to understand deemed consent for a significant period, and people not ordinarily resident in England for 12 months. Faith provision for Jewish donors shows the default can be adapted, which raises how far it should go. |
Interview questions
- What do you know about Max and Keira's Law?
- What is the difference between an opt in and an opt out system for organ donation?
- A woman tells you her husband, who never recorded a decision, would have refused donation. What do you do next?
- What is the strongest case that silence should count as consent, and the strongest case against?
- Why might a family refuse donation when the person had registered a wish to donate?
- Should a family be able to overrule a decision the person recorded?
- Why does the Act exclude some groups, and is that fair?
- What has happened to family consent since 2020, and what might explain it?
Sources
- legislation.gov.uklegislation.gov.uk/…/data.htm
- organdonation.nhs.ukorgandonation.nhs.uk/…/nhs-announces-first-ever-urgent-response-following-sharp-dec
- pmc.ncbi.nlm.nih.govpmc.ncbi.nlm.nih.gov/…/PMC11532317
- organdonation.nhs.ukorgandonation.nhs.uk/…/organ-donation-law-in-wales
- organdonation.nhs.ukorgandonation.nhs.uk/…/organ-donation-law-in-scotland
- organdonation.nhs.ukorgandonation.nhs.uk/…/1-in-a-million-nhs-blood-and-transplant-sets-out-new-ambitio
- hta.gov.ukhta.gov.uk/…/Code%20F%20part%20two%20-%20Deceased%20organ%20and%20tissue%
- organdonation.nhs.ukorgandonation.nhs.uk/…/consent
- theconversation.comtheconversation.com/…/england-made-organ-donation-the-default-so-why-are-fewer-fam
- organdonation.nhs.ukorgandonation.nhs.uk/…/judaism
- legislation.gov.uklegislation.gov.uk/…/made
Photo: Science Museum, London, Wellcome Images, CC BY 4.0, via Wikimedia Commons, colour altered.
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