Organ donation: Consider mandated consent

An opt-out system of organ donations has not succeeded in increasing the number of organ donations. The problem is that doctors can't tell whether a patient really wanted to be an organ donor, or whether he became one because he never bothered to opt out. A change is needed to suss out the first group.

The entrance of the Renal Dialysis Centre at Singapore General Hospital (SGH).PHOTO: ST FILE

Despite the fact that Singapore is one of the few countries in the world that have implemented an opt-out system in organ donation, the number of organ donations remains low. In fact, it has remained low since 1987, when the Human Organ Transplant Act (Hota) was passed. Hota changed the former opt-in system - in which persons who wished to donate their organs for transplant, research or education purposes when they die under certain conditions could register to do so - to an opt-out one.

With the passage of Hota, Singaporeans are presumed to have given their consent for the removal of specified organs for use in organ transplants upon death. They could choose to opt out of being an organ donor, but if they do nothing, they would be legally viewed as having given their consent to be organ donors.

Hota was inspired by a well-known insight of behavioural science - that people are generally lazy, and that the vast majority of us stick with the defaults (or the status quo options) set for us. The implication of this finding is that, to the extent possible, governments should automatically enrol citizens in a programme deemed worthwhile while still maintaining the choice for them to opt out with as little fuss or friction as possible. Setting participation as the default allows governments to take advantage of, rather than have to overcome, people's inertia and procrastination.

Hota was subsequently amended in 2004 to include all causes of death and to allow the removal of additional organs (specifically the heart, liver and corneas) for transplantation. Muslims were also included as potential donors in the legislative change.

Yet despite this, organ donation numbers remain extremely low, with just 58 such transplants last year compared with 69 in 2006. The average wait for a kidney, The Straits Times reports, is still nine to 10 years, and one to two years for a liver or heart.

So what explains the unusually low number of organ donations in Singapore despite the fact that almost all of us are potential organ donors? The purpose of Hota was not to have a high percentage of potential donors among the population for its own sake. It was to increase the number of actual organ transplants. While Hota was clearly a success in terms of the number of potential donors, it has been a failure when it comes to the real measure of whether it raised the number of donations and transplants.

Organ donation numbers remain extremely low, with just 58 such transplants last year compared with 69 in 2006. The average wait for a kidney, The Straits Times reports, is still nine to 10 years, and one to two years for a liver or heart.

The Ministry of Health (MOH) says that "even with legislation… there is a need to continuously engage the public to raise awareness about the issues around organ donation and transplantation, including the benefits of transplantation".

But is public education really the answer?

After all, changing the system to one of presumed consent obviates the need for public education, and raises the number of potential donors automatically. Why would the Government need to educate the public on the importance of organ donation when the vast majority of us (that is, those who have not opted out of organ donation) are presumed to have given consent to have our organs harvested if we die under certain circumstances?

The fact of the matter is that the problem does not lie with too few potential donors. Only a very small minority of Singaporeans have chosen to opt out of being potential organ donors.

The source of the problem is that the current system of presumed consent represents a weak form of consent. Knowing this, emergency ward doctors find it extremely difficult to insist on organ donation if the loved ones of the patient found suitable to be a donor object.

To understand why this might be, consider for a moment the individual who, like the vast majority of Singaporeans, has not opted out of organ donation. The question is: Does he genuinely want to donate his organs?

The problem with the current opt-out system is that it does not distinguish between two groups of people. The first is made up of persons who have made a conscious, deliberate decision to be organ donors. A failure to harvest their organs for use in transplantation would represent a failure to respect their wishes.

The second group is made up of persons who, whether out of procrastination, inertia or a failure to think about what their preference is, have not got round to opting out of being organ donors.

The legal position from Hota is clear: Both groups are treated the same, since a failure to opt out represents consent to be an organ donor. Even though the legal position of Hota is clear, emergency ward doctors typically do not know which group a brain-dead patient belongs to. They would find it both emotionally difficult and ethically questionable to raise the issue of organ donation with the loved ones. It would be even harder for them to treat the people in the second group as they would people in the first.

In the absence of information about the genuine preferences of the patient, they would quite understandably choose to err on the side of caution (of not harvesting) rather than insist on the legality of harvesting the organs of any patient who has not opted out.

So what is to be done? Changing the system back to one of opt-in is not a solution at all, as it is likely to result in very few people overcoming their inertia and procrastination to register as donors.

Nor is public education alone sufficient. Hota has been around for nearly 30 years - if public education can work, it would have worked already.

The most sensible thing MOH can do is to move from a system of presumed consent to one of mandated consent. In most American states and in Britain, a person who renews, or applies for, a driving licence is required by law to indicate his preference on organ donation.

He can choose not to be an organ donor - he will still receive his licence - but he has to make his preference known. During this moment of interaction with the authorities, individuals would also have societal benefits of organ donation, as well as the circumstances under which their organs would be harvested, explained to them.

In Singapore's context, a system of mandated consent can be implemented not only when people apply for or renew their driving licences, but also when they transact with other government agencies.

Such a system would increase greatly the pool of donors who are clearly committed to being organ donors, and diminish significantly the dilemma that emergency ward doctors currently face when they are confronted with a patient whose organs may save the lives of others.

  • Donald Low is Associate Dean (Executive Education & Research) and Associate Professor (Practice) at the Lee Kuan Yew School of Public Policy, National University of Singapore.
A version of this article appeared in the print edition of The Straits Times on May 25, 2016, with the headline 'Organ donation: Consider mandated consent'. Subscribe