Organ donation (FOI)

Request

A
All legal advice sought by the Jersey Government before voting to pass Human Transplantation and Anatomy (Jersey) Law 2018 on the validity of this legislation and the only opt out being NHS Wales which requires GDPR information that requires the individual wishing to opt to provide GDPR controlled information and not other means which does not require GDPR controlled information to opt out.

B
The second question is why the register is not in Jersey?

C
The third question is concerning the legality of legislating "Opt-In" legislation when the Jersey Government has stated (Health Department) that the Jersey Government does not own the any individual's body.

Response

A
The requested information is qualified exempt under Article 31 (Advice by the Bailiff, Deputy Bailiff or a Law Officer) of the Freedom of Information (Jersey) Law 2011.

B
There is no local register as organ donation services are offered on a nationwide basis, including the Crown Dependencies. There is one National Organ Donation Register maintained by National Health Services Blood and Transplant.

C
The Human Transplantation and Anatomy (Jersey) Law 2018 enables consent to a specified activity to be expressly provided or expressly withheld (ie a person can choose to expressly ‘opt-in’ or ‘opt-out’) or, in cases where the individual had not made an express decision either way before death, the 2018 Law enables consent to be deemed on that person’s behalf in accordance with the relevant provisions of the 2018 Law (see Article 4, in particular, of the 2018 Law as regards the legal requirements for consent to be deemed). In response directly to the question, therefore, transplantation activity under the 2018 Law occurs on the basis of the deceased’s consent being established, rather than on the basis of any concept of ownership of the deceased’s body.

Article applied

Article 31      Advice by the Bailiff, Deputy Bailiff or a Law Officer

Information is qualified exempt information if it is or relates to the provision of advice by the Bailiff, Deputy Bailiff or the Attorney General or the Solicitor General.

Public Interest Test

Article 31 of the 2011 Law provides that information is qualified exempt information if it is or relates to the provision of advice by the Bailiff, Deputy Bailiff or the Attorney General or the Solicitor General. This provision recognises the longstanding constitutional Convention that government does not reveal whether Law Officers have or have not advised on a particular issue, or the content of any such advice. The underlying purpose of this confidentiality is to protect fully informed decision making by allowing government to seek legal advice in private, without fear of any adverse inferences being drawn from either the content of the advice or the fact that it was sought. It ensures that government is neither discouraged from seeking advice in appropriate cases, nor pressured to seek advice in inappropriate cases. With regard to the determination of the public interest test under Article 31 of the 2011 Law, it has been recognised that the Convention carries significant weight in public interest determinations of this nature, see HM Treasury v IC [2009] EWHC 1811. The Convention has recently been considered by the Office of the Information Commissioner for Jersey and was held to be part of Jersey law. A link to the decision notice is provided below -

St Lawrence - JOIC Decision Notice

The Department for Health and Community Services, having regard to Article 31 of the 2011 Law and the Convention, is satisfied that, in all the circumstances of the case, the public interest in supplying the requested information is outweighed by the public interest in not doing so.