Part 1Transplantation etc.
Use of part of body of deceased person for transplantation, research etc.
6DF1Deemed authorisation for transplantation: adult
1
An adult is deemed to have authorised the removal and use of a part of the adult's body after the adult's death for transplantation where there is in force at the relevant time—
a
no express authorisation by the adult of removal and use of any part of the adult's body for transplantation, and
b
no opt-out declaration by the adult as respects removal and use of the part of the adult's body for transplantation.
2
Subsection (1) does not apply in relation to—
a
a person who was not ordinarily resident in Scotland for a period of at least 12 months ending immediately before the relevant time (a “non-resident adult”),
b
an adult who is incapable of understanding the nature and consequences of deemed authorisation,
c
an excepted body part,
d
a part of the adult's body (that is not an excepted body part), if a person provides evidence to a health worker that would lead a reasonable person to conclude that—
i
the adult's most recent view was that the adult was unwilling for the part to be used for transplantation, or
ii
if the adult were capable of making a decision about removal and use of the part, the adult would be unwilling in the circumstances for the part to be used for transplantation.
3
In this Part, an adult is incapable of understanding the nature and consequences of deemed authorisation if, over a significant period ending immediately before the relevant time, the person was incapable of understanding—
a
that an adult may be deemed to have authorised removal and use of a part of the adult's body after the adult's death for transplantation, and
b
that if authorisation is so deemed, after the adult's death part of the adult's body may be removed from the body and used for transplantation.
4
An example of when an adult is to be considered “incapable of understanding the nature and consequences of deemed authorisation” is if there is evidence available to a health worker, including any evidence referred to in section 16H(4), that would lead a reasonable person to conclude that the adult is so incapable.
5
An “excepted body part” is a part of the body specified in regulations made by the Scottish Ministers.
6
Before laying draft regulations under subsection (5) before the Scottish Parliament, the Scottish Ministers must consult such persons as they consider appropriate.