Don't quote the next of kin thing to me - first of all "next of kin" does not have a clear legal meaning. Secondly can family members be contacted quickly enough and finally, familes frequently disagree.
The legislation doesn't use the term "next of kin". It has the concept of "designated family member", which is defined with a long list — spouse, cohabitant, child, parent, brother, sister, etc.
And, if those family members can't be contacted, the organs can't be taken. Even if there is deemed consent (because the deceased didn't opt out) they still have to contact a designated family member — not just any designated family member, but one with whom the doctors have had "real and substantial contact" in relation to the care and treatment. So, basically, the family member they were dealing with in relation to your medical treatment? That's the family member they deal with in relation to taking your organs after you die. If there was no pre-death care or treatment — e.g. if you are brought in dead from a road accident — then it has to be the family member at the top of the list — your spouse or cohabitant, but if you don't have a spouse or cohabitant then your (adult) child, but if you don't have an adult child then one of your parents, but if you don't have a living parent then a brother or sister, etc, etc.
So there's no lack of clarity about who they need to talk to.
And, even though there is deemed consent, the organs can't be taken unless the designated family member that they talk to confirms, in writing, in the presence of witnesses, that they do not object. If they object, or if they just fail to confirm that they don't object, the organs can't be taken.
In a case where there isn't deemed consent, then the rules are actually pretty similar — they have to talk to the same designated family member, and the transplantation activities can't proceed unless that person gives "appropriate consent" (in writing, witnesses, no duress or coercion, etc, etc.).
So, in fact, whether there is "deemed consent" or not, what happens in practice will be pretty similar. They talk to the family member that they were talking to in relation to your care or, if they didn't talk to anyone in relation to your care, to the family member who is highest on the list. They can't carry out transplantation activities unless that family member confirms that they don't object (if there is deemed consent) or gives their approval (if there is no deemed consent).
(My guess is that this is more or less what happens already. The legislation is simply giving clear statutory backing to covnentions that have already been developed and refined by transplant teams and have been used in practice for some time.)
So what's the relevance of deemed consent or not? In practice, I think, only this — if there's no deemed consent because you opted out, then the transplant team may take their cue from that and not approach your designated family member at all. And, if they do approach them, your family member may be likely to withhold approval, because they know from the fact that you opted out that you didn't want your organs to be transplanted. So what this legislation may actually do is provide a mechanism for people who object to having their organs donated to record the fact, and have it taken into account when the time comes.
familes frequently disagree.
Yes, and of course you have this problem already in relation to organ donation.
Under the new legislation if, say, you have no spouse, but two living parents, your two parents are your designated family members, and the transplant team can proceed with approval/confirmation of no objection from either of them.
In practice, I suspect, they would be slow to proceed without approval/confirmation from both, and they would certainly be reluctant to proceed if they knew that one definitely objected.
