How does the new Donor Act work if there is incapacity to give consent, in cases like my grandma with dementia?
For organ and tissue donation, a person must be able to understand what it is about. They must also be able to understand the consequences of entering their choice. If someone is not able to do that, they are deemed not to have the capacity to give consent.
Becoming incapable of giving consent after completion
People may have entered a choice while they were still capable of giving consent, but at a later date no longer have the capacity to do so. When somebody gets dementia as they get older, for example. The choice they entered then remains valid. The doctor in the hospital tells the family what choice is recorded in the register.
The role of the legal representative for a living person who is incapable of giving consent
If somebody is incapable of giving consent, their legal representative can enter a choice on behalf of that person about organ or tissue donation.
Who are the legal representatives for organ donation?
Legal representatives could for example be the parents, a guardian or a mentor.
The role of the family after the death of a person who is incapable of giving consent
If the choice was entered by a person who was incapable of giving consent at the time, or if ‘No objection’ is listed next to their name, that record is not valid. The doctor asks the family to make a choice for the person who was incapable of giving consent.
If a person who was incapable of giving consent is not listed in the Donor Register, the family decides. In the case of a child aged under 12, for instance, this would be the parents or a guardian.