On 26 March 2021, Scotland moved from an opt-in to an opt-out (deemed consent) system for organ donation, under the Human Tissue (Authorisation) (Scotland) Act 2019. This represents a fundamental change in the legal basis for organ donation.

Under the opt-out system, all adults aged 16 and over who are ordinarily resident in Scotland are deemed to have authorised donation of their organs and tissues after death, unless they have registered an objection on the NHS Organ Donor Register, have made a written statement of objection, or have verbally communicated a clear objection to a nearest relative or other close person. The deemed authorisation is equivalent in law to an explicit decision to donate.

It is critical to understand that registered objections are always respected and take absolute precedence. The opt-out system creates a presumption of consent that can be overridden by a registered objection — it does not create a right for clinicians to retrieve organs in the face of clear opposition from the deceased. Families of potential donors are consulted as part of the process, and while their views are not legally determinative in the same way as in the old system, sensitive family engagement remains both ethically essential and practically important for a successful donation.

Clinicians working in Scottish ICUs must be familiar with this legislation. When a patient who has not registered an objection dies, deemed consent applies. The presence or absence of an organ donor card or NHS Organ Donor Register entry should be checked via the SNOD, who has direct access to the national register.