Family Override of Valid Donor Consent to Postmortem Donation: Issues in Law and Practice

Transplantation Proceedings

Volumn 40, Issue 5, 2008, Pages 1255-1263

  Downie, J ^a   Shea, A ^a   Rajotte, C ^a  

^a DALHOUSIE UNIVERSITY   (Canada)

Author keywords

[No Author keywords available]

Indexed keywords

ARTICLE; CADAVER; CANADA; FAMILY; FEAR; HEALTH CARE POLICY; HEALTH CARE SYSTEM; HUMAN; INFORMED CONSENT; LAW SUIT; LEGAL ASPECT; ORGAN DONOR; ORGAN TRANSPLANTATION; PRIORITY JOURNAL;

ADULT; CANADA; DEATH; FAMILY; FEMALE; HUMANS; INFORMED CONSENT; MALE; PRESUMED CONSENT; REFUSAL TO PARTICIPATE; TISSUE DONORS;

EID: 45749127790     PISSN: 00411345     EISSN: None     Source Type: Journal    
DOI: 10.1016/j.transproceed.2008.03.159     Document Type: Article

References (79)

1. Fenton S.A. 2006 CORR Preliminary Report: Preliminary Statistics on Organ Donation, Transplantation and Waiting List. Presented at the CST Annual Meeting, March 2006. http://www.cihi.ca/corr
2. Nunavut Human Tissue Act, R.S.N.W.T. 1988, c. H-6, as duplicated for Nunavut by s. 29 of the Nunavut Act, S.C. 1993, c. 28; the Northwest Territories Human Tissue Act, R.S.N.W.T. 1988, c. H-6; the Yukon Human Tissue Gift Act, R.S.Y. 2002, c. 117; British Columbia Human Tissue Gift Act, R.S.B.C. 1996, c. 211; New Brunswick Human Tissue Gift Act, S.N.B. 2004, c. H-12.5; Nova Scotia Human Tissue Gift Act R.S.N.S. 1989, c. 215; Newfoundland and Labrador Human Tissue Act, R.S.N. 1990, H-15.
3. Alberta Human Tissue Gift Act, R.S.A. 2000, c. H-15; Saskatchewan The Human Tissue Gift Act, R.S.S. 1978, c. H-15; Manitoba The Human Tissue Gift Act, S.M. 1987-88, c. 39.
4. The Human Tissue Gift Act, S.M. 1987-88, c. 39, s. 2(2). "Unavailable" is defined in the Act as "unable to act because of death, physical or mental illness or incapacity, absence or other cause." Ibid. s. 1.
5. Informed consent is a legal doctrine that imposes a duty on health care professionals, under the law of negligence, to ensure patients are adequately informed. Designed to protect the patient's autonomy and bodily integrity, the doctrine requires health care professionals to provide patients with material information concerning proposed treatments, such as the prognosis, alternative treatments and their success rates, benefits, and material risks, so patients can make an informed choice. Where failure to adequately inform the patient causes the patient to suffer harm, the professional may be held liable for negligence. Dickens B. Informed choice. In Downie J, McEwen K, MacInnis W (eds): Dental Law in Canada. Markham, On: Lexis Nexis Butterworths; 2004, p 219; Reibl v. Hughes, [1980] 1 S.C.R. 880, 114 D.L.R. (3d) 1.
6. In the Northwest Territories, Nunavut, and Manitoba, the term "direction" is used instead of "consent." Human Tissue Act, R.S.N.W.T. 1988, c. H-6; Human Tissue Act, R.S.N.W.T. 1988, c. H-6, as duplicated for Nunavut by s. 29 of the Nunavut Act, S.C. 1993, c. 28; The Human Tissue Gift Act, S.M. 1987-88, c. 39.
7. O'Brien K. Legal issues arising from donation after cardiocirculatory determination of death (2005) [unpublished, on file with the authors] at 21
8. Human Tissue Donation Act, S.P.E.I. 1992, c. 34, s. 3(1).
9. Supra note 4, s. 2 (3)(b).
10. New Brunswick, Nunavut, Northwest Territories, Manitoba, and Quebec do not legally require the writing to be signed. Human Tissue Gift Act, S.N.B. 2004, c. H-12.5, s. 4(1)(a); Human Tissue Act, R.S.N.W.T. 1988, c. H-6, s. 1(1)(a); The Human Tissue Gift Act, S.M. 1987-88, c. 39, s. 12; Civil Code of Quebec, S.Q. 1991, c. 64, s. 43 (C.C.Q.).
11. Interpretation Act, R.S.O. 1990, c. I.11, s. 29(1). Quebec is the only jurisdiction that does not define writing in its Interpretation Act, R.S.Q. c. I-16.
12. Saskatchewan Health: Becoming an Organ or Tissue Donor. http://www.health.gov.sk.ca/ph_br_ae_organdonor.html
13. Québec-Transplant: How to Indicate Your Wish to Donate Your Organs When You Die. http://www.quebec-transplant.qc.ca/QuebecTransplant_en/sign2.htm
14. These jurisdictions are Newfoundland, Nova Scotia, Ontario, Saskatchewan, Alberta, British Columbia, and the Yukon. Human Tissue Act, R.S.N. 1990, c. H-15, s. 2(i); Human Tissue Gift Act, R.S.N.S. 1989, c. 215, s. 2(e); Trillium Gift of Life Network Act, R.S.O. 1990, c. H.20, s. 1; The Human Tissue Gift Act, R.S.S. 1978, c. H-15, s. 2(e); Human Tissue Gift Act, R.S.A. 2000, c. H-15, s. 1(g); Human Tissue Gift Act, R.S.B.C. 1996, c. 211, s. 1.
15. Quebec's postmortem consent provision allows for consent to be given verbally before 2 witnesses. Art. 43, C.C.Q. Manitoba's legislation also explicitly states that postmortem donor consent can be given using any type of recorded message or by telephone to at least 2 witnesses. The Human Tissue Gift Act, supra note 4, s. 12.
16. Sometimes referred to as "judge-made law," the common law is law developed over the years by judges when making decisions in court. Judges look to past decisions to resolve the disputes before them and rely upon these precedents in making their rulings. All provinces and territories except Quebec use the common law. Quebec is a civil law jurisdiction, and its courts are guided by the Civil Code of Quebec, a statute which contains rules that govern "persons, relations between persons, and property." Preliminary provision Civil Code of Quebec, S.Q. 1991, c. 64 (C.C.Q.).
17. Hunter v. H. [1930] 4 D.L.R. 255 (Ont. S.C.) [Hunter]. Edmonds v. Armstrong Funeral Home Ltd. (1930), 1 D.L.R. 676 (Alta. S.C.(A.D.)) [Edmonds]. See generally, Law Reform Commission of Canada: Procurement and Transfer of Human Tissues and Organs. Working Paper No. 66 (1992), Canada Communications Group, Ottawa P 66 [LRCC]
18. Rozovsky L.E. Death, dead bodies and the law. Canadian Hospital 47 (1970) 52 [Rozovsky, "Death"]
19. Saleh v. Reichert (1993), 104 D.L.R. (4th) 384 (Ont. Gen. Div.).
20. LRCC, supra note 17 at 67. Edmonds, supra note 17.
21. Edmonds, supra note 17 at 680.
22. Sullivan R. Statutory Interpretation (1997), Irwin Law, Concord, On
23. Sneiderman B., Irvine J.C., and Osbourne P.H. Canadian Medical Law: An Introduction for Physicians, Nurses and Other Health Care Professionals. 3rd Ed. Legislation was necessary to fill the common law gap in relation to consent to organ and tissue donation. Not only did the common law deny an individual the right to control the disposition of his or her body after death, there was also no clear authority under the common law that permitted the family to consent to postmortem donation, bound as they were by their legal duty to bury the body (2003), Thomson Carswell, Scarborough, On 393 Rozovsky, "Death," supra note 18
24. R.S.C. 1985, c. C-46.
25. R. v. Ladue, [1965] 4 C.C.C. 264 (Y.T.C.A.).
26. R. v. Moyer, [1994] 2 S.C.R. 899.
27. R. v. Mills, [1993] 4 S.C.R. 277.
28. For an overview of historical common law cases, see R. v. Moyer (1993), 83 C.C.C. (3d) 280, rev'd [1994] 2 S.C.R. 899. See generally, LRCC, supra note 17 at 112.
29. This consistency is due to the fact that most provincial and territorial organ and tissue donation legislation is modeled on a uniform statute, the revised Uniform Tissue Gift Act of 1971, developed by the Uniform Law Conference of Canada. The Uniform Law Conference of Canada develops uniform or model acts at the request of its constituent jurisdictions, namely the federal, provincial, and territorial governments. These governments appoint delegates to the Conference, such as government policy lawyers, private lawyers, or law reformers. The Conference's current uniform Human Tissue Donation Act of 1990 is one of many uniform statutes that the Conference has adopted and recommended for government enactment. The current version has been made into law only in Prince Edward Island. Human Tissue Donation Act, supra note 8.
30. Under Prince Edward Island's Human Tissue Donation Act, a consent that complies with the act "is binding and is authority" for organ and tissue removal after death. Ibid., s. 10(1). The Act does not use "full" to describe the authority granted under the act. However, family overrides are still not legally permissible as the donor's consent is binding.
31. Picard E.I., and Robertson G. Legal Liability of Doctors and Hospitals in Canada, 3rd Ed. Scarborough, On: Carswell; 1996, at 99; O'Brien, supra note 7 at 24; Somerville MA: "Procurement" vs "donation"-access to tissues and organs for transplantation: should "contracting out" legislation be adopted?. Transplant Proc 17 (1955) 53
32. As discussed later, eg, there are 3 exceptions in these tissue donation statutes. Valid donor consent cannot be acted on if the person has reason to believe the donor subsequently withdrew consent or if the death requires an investigation by a coroner or medical examiner, unless the coroner or medical examiner allows the organs to be removed. Lastly, if bodies or body parts are not usable for any of the purposes specified in the consent, they are to be dealt with as if no consent had been given. See discussion infra 2. b. Statutory exceptions.
33. Yogis J. Canadian Law Dictionary. 5th Ed. (2003), Barron's Educational Series Inc, Toronto s.v. "bind."
34. Ibid., s.v. "binding."
35. S.M. 1987-88, c. 39, s. 2(3).
36. Supra note 16.
37. Art. 43 C.C.Q.
38. See also Gouvernement du Quebec, Commission de l'Ethique de la Science et de la Technologie: Organ Donation and Transplantation: Ethical Dilemmas Due to Shortage. Position Statement. 2004. http://www.ethique.gouv.qc.ca/eng/ftp/AvisDonANG.pdf
39. It is interesting to note that an earlier version of Quebec's recently passed Bill 197, An Act to Facilitate Organ Donation, contained a provision that would have clarified whether respecting family opposition is legally acceptable. However, it was not included in the final version of Bill 197, An Act to Facilitate Organ Donation, 2nd Sess., 37th Leg., Quebec, 2006 (assented to 9 June 2006), S.Q. 2006, c. 11. Under the draft provision, physicians would have been legally required to carry out the user's wishes and the only valid legal reason for not following them would have been that there was information from the proxy or next-of-kin that the user had changed his or her wishes. The potential donor's physician would have had to verify with the family whether the donor had changed his or her mind. The reasons for the change are not evident, therefore it is difficult to draw any conclusions re: interpretation.
40. See, eg, Human Tissue Gift Act, R.S.N.S. 1989, c. 215, s.7.
41. However, for these jurisdictions, it is likely that the legislation would be interpreted to allow for such an exception despite the fact that no explicit exception has been included in the legislation.
42. See, eg, supra 40, s. 9. Prince Edward Island's exception is different from the other jurisdictions, in that its scope is limited to the disposal of tissue that has already been removed pursuant to a consent and cannot for any reason be implanted in a living body. Human Tissue Donation Act, supra note 9, s. 12(2).
43. The Human Tissue Gift Act, supra note 4, s. 2(3)(b).
44. The Human Tissue Gift Act, R.S.S. 1978, c. H-15, s. 10. Nova Scotia, New Brunswick, Newfoundland, Alberta, British Columbia, and the Yukon have similar wording in their provisions. Prince Edward Island and Manitoba's provisions are the same as the provision above, except that they explicitly state that an individual's omissions or failures to act are protected from liability.
45. Chaput v. Romain, [1955] S.C.R. 834 at 859, 856. The case involved the application of a good faith immunity clause to the actions of police officers.
46. Collins v. Transport & Allied Workers Union (Teamsters, Local 855) (1990), 94 Nfld. & P.E.I.R. 346 at 353.
47. See generally, Administrative Justice Office, Ministry of the Attorney General (BC): Statutory Immunity: A Discussion Paper. O'Brien, supra note 7 at 24. http://www.gov.bc.ca/ajo/popt/publications_and_research.htm
48. Trillium Gift of Life Network Act, R.S.O. 1990, c. H.20, s. 9(1).
49. See, eg, Human Tissue Gift Act, supra note 40, s. 2(a).
50. O'Brien, supra note 7 at 19.
51. Human Tissue Donation Act, supra note 8, s. 2. Alberta's recently passed Bill 32, Human Tissue and Organ Donation Act, also states that organs and tissues can be donated only in accordance with the Act. It has not been proclaimed in force to date. Bill 32, Human Tissue and Organ Donation Act, 2nd Sess., 26th Leg., Alberta, 2006 (assented to 24 May 2006), S.A. 2006, c. H-14.5.
52. Human Tissue Gift Act, R.S.B.C. 1996, c. 211, s. 13(2).
53. Health Care Consent Act, S.O. 1996, c. 2, s. 6, Sched. A; Substitute Decision Makers Act, 1992, S.O. 1992, c. 30, s. 66; Consent to Treatment and Health Care Directives Act, S.P.E.I. 1996, c. 10, s. 2(1).
54. See, eg, The Adult Guardianship and Co-decision-making Act, S.S. 2000, c. A-5.3, s. 22(4)(b).
55. The Vulnerable Persons Living With a Mental Disability Act, S.M. 1993, c. 29, s. 61(c).
56. Guardianship and Trusteeship Act, S.N.W.T. 1994, c. 29, s. 11(2)(o), 12(6)(a).
57. Health professionals were asked the following 2 questions in the survey: (1) "What happens in a situation where someone has signed a donor card or registered with an organ and tissue donation registry, but his/her family does not wish any donation to take place?" and (2) "In your opinion, what should happen in a situation where someone has signed a donor card or registered with an organ and tissue donation registry, but his/her family does not wish any donation to take place?" Possible responses to both questions included the following: "The wishes of the deceased person who has signed a donor card or registered with a donation registry are followed"; "The wishes of the family or the next-of-kin who oppose donation are followed"; "Don't know"; and "Other; please specify." Canadian Council for Donation and Transplantation: Health Professional Awareness and Attitudes on Organ and Tissue Donation and Transplantation Including Donation After Cardiocirculatory Death. 2006. http://www.ccdt.ca/english/publications/surveys.html#august2006
58. This survey also asked Canadians whether they were confident that their views and wishes regarding organ and tissue donation and transplantation will be respected after death. Most Canadians were very confident (64%) or somewhat confident (27%). Eight percent of Canadians were not very or not at all confident. Environics Research Group Ltd: Public Awareness and Attitudes on Organ and Tissue Donation and Transplantation Including Donation After Cardiac Death. 2005. http://www.ccdt.ca/english/publications/surveys-pdfs/Public_ Survey_Final_Report.pdf
59. Capital Health: HOPE FAQs. http://www.capitalhealth.ca/YourHealth/Clinical/Transplant/HOPE_FAQs.htm
60. New Brunswick Department of Health: Organ and Tissue Donation in New Brunswick: Talk About It: Answers to Your Questions. http://www.gnb.ca/0217/pdf/3419e-final.pdf
61. Yukon Health and Social Services: Yukon Organ Donation Program. http://www.hss.gov.yk.ca/programs/insured_hearing/organdonation
62. Trillium Gift of Life Network: FAQs. http://www.giftoflife.on.ca/page.cfm?id=55684845-85D2-4B5B-A2B5-79E3CAE8 8EC0#ac3c1360370d209496f8596b5eb82747
63. As noted earlier, Prince Edward Island does not specify any required format for valid donor consent to postmortem donation under its tissue donation statute. In Prince Edward Island, donors can affix red stickers to their health cards or have red hearts engraved on their driver's licenses, in addition to using health care directives to give consent. Where there are no statutory format requirements
64. As noted earlier, Prince Edward Island does not specify any required format for valid donor consent to postmortem donation under its tissue donation statute. In Prince Edward Island, donors can affix red stickers to their health cards or have red hearts engraved on their driver's licenses, in addition to using health care directives to give consent. Where there are no statutory format requirements, it is arguable that these forms are equally valid formats for giving consent. Government of Prince Edward Island: InfoPEI: Organ Donation. http://www.peigov.ca/infopei/index.php3?number=68947&lang=E
65. Capital Health: Organ and Tissue Donation: Medical Service Insurance Donor Registry. http://www.cdha.nshealth.ca/transplantservices/msiRegistry.html
66. Co-ordinator, Organ Procurement and Exchange: Organ Donor Cards. http://www.hccsj.nl.ca/med_services/car_crit_care/open.pdf
67. Saskatchewan Health, supra note 12.
68. Trillium Gift of Life Network, supra note 62.
69. May T., Aulisio M.P., and DeVita M.A. Patients, families, and organ donation: who should decide?. Milbank Q 78 (2000) 323
70. Glannon W. A Review of the Ethical Issues Surrounding Donation After Cardiocirculatory Determination of Death. 2005. http://www.ccdt.ca/english/publications/background-pdfs/Review-Ethical-C ardio.pdf
71. Canadian Council for Donation and Transplantation: Health Professional Awareness and Attitudes on Organ and Tissue Donation and Transplantation Including Donation After Cardiocirculatory Death, supra note 57.
72. The Citizens Panel on Increasing Organ Donations: The Citizens Panel on Increasing Organ Donations: Seeking Views and Opinions on Increasing Organ Donations in Ontario. Report. March 2007. http://www.panelonorgandonations.on.ca/report/en/_pdf/Report_of_the_Citi zens_Panel_on_Increasing_Organ_Donations.pdf
73. May, Aulisio, DeVita, supra note 69 at 331.
74. Glannon, supra note 70; May, Aulisio, DeVita, supra note 69 at 331-333.
75. Somerville, supra note 31 at 61-62.
76. LRCC, supra note 17 at 68.
77. The CMA's policy summary on Organ and Tissue Donation and Transplantation provides support for this position, as section 5.4 of the summary states that where the donor's wishes are known and there is no reason to believe the choice to donate is invalid (using their criteria of informed choice, voluntariness, and subsequent change of mind), the donor's wishes should be carried out and families "should be encouraged to respect the patient's clearly expressed wishes." CMA: Organ and Tissue Donation and Transplantation (Update 2000). http://policybase.cma.ca/dbtw-wpd%5CPolicyPDF%5CPD00-07.pdf
78. Uniform Law Conference of Canada: Proceedings of the 69th Annual Meeting, 1987. http://www.bcli.org/ulcc/proceedings/1987.pdf
79. British Columbia Transplant Society. Stats and FAQs. http://www.transplant.bc.ca/stats_faqs_main.htm