End-of-life treatment of potential organ donors: Paradigm shifts in intensive and emergency care

Medical Law Review

Volumn 19, Issue 1, 2011, Pages 86-116

  Price, David ^a  

^a DE MONTFORT UNIVERSITY   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

ARTICLE; DONOR; EMERGENCY HEALTH SERVICE; HUMAN; INTENSIVE CARE UNIT; LEGAL ASPECT; LONG TERM CARE; TERMINAL CARE; UNITED KINGDOM;

EMERGENCY SERVICE, HOSPITAL; GREAT BRITAIN; HUMANS; INTENSIVE CARE UNITS; LIFE SUPPORT CARE; TERMINAL CARE; TISSUE DONORS;

EID: 79951897640     PISSN: 09670742     EISSN: 14643790     Source Type: Journal    
DOI: 10.1093/medlaw/fwq032     Document Type: Article

References (152)

1. I avoid use of the terminology of cardiac death here on account of the (false) implication that there are two different types of death applicable to organ donation situations. However, it is recognised that the terms 'donors after brain death' (DBD) and 'donors after cardiac death' (DCD) now have general currency.
2. Department of Health, Legal Issues Relevant to Non-heartbeating Donation, Department of Health, 2009.
3. Category III on the Maastricht categorisation of non-heart-beating donors.
4. See S Ridley and others, 'UK Guidance for Non-heart-beating Donation' (2005) 95 British Journal of Anaesthesia 592.
5. I am not here considering 'uncontrolled' non-heart-beating donation after death.
6. For more see, e.g., M Sangster, '" Cooling corpses": Section 43 of the Human Tissue Act 2004 and Organ Donation' (2007) 2 Clinical Ethics 23.
7. Many non-heart-beating donors are 'kidneys only', with an average of 2.59 organs retrieved compared with an average of 3.97 organs retrieved after heart-beating donation.
8. The UK organ transplant waiting list was rising at about 8% per annum, but rose only 2% over the last full statistical year.
9. Because of neurosurgical and other clinical strategies such as cerebral decompression, the number of deaths from donors suffering from stroke is reducing significantly, see L Devey and S Wigmore, 'Non-heart-beating Donation' (2009) 96 British Journal of Surgery 833, 833.
10. Department for Transport, Reported Road Casualties Great Britain: 2008 Annual Report.
11. Organ Donation Taskforce Implementation Programme Annual Report 2008/9, Department of Health, 2009, at 22.
12. It has significantly increased in the USA also, from 57 donors in 1994 to 978 in 2008, see R Howard, J Schold and D Cornell, 'A 10-year Analysis of Organ Donation after Cardiac Death in the United States' (2005) 80 Transplantation 564, 565.
13. A similar pattern can be seen in the Netherlands.
14. From 775 donors in the financial year 1997-8 to 624 in the same period 2009-10.
15. There was a 9% reduction between 2001 and 2008, see Organs for Transplants: A Report from the Organ Donation Taskforce, Department of Health, January 2008, at 21.
16. See J Oram and P Murphy, 'Controlled Non-heart-beating Organ Donation: A Survey of UK Intensive Care Units, Research Abstracts' (2007) 8(1) Journal of the Intensive Care Society 48.
17. M Navarro-Michel, 'Institutional Organisation and Transplanting the "Spanish Model" ' in A-M Farrell, M Quigley and D Price (eds), Organ Shortage: Ethics, Law and Pragmatism (Cambridge University Press), in press.
18. N Jousset and others, 'Organ Donation in France: Legislation, Epidemiology and Ethical Comments' (2009) 49(3) Medicine, Science and the Law 191, 197.
19. Organs for Transplants, n 9, Recommendation 3, at 9.
20. Where organs are not perfused with oxygen after the time of death, they must be removed rapidly to avoid deterioration from warm ischaemia resulting from the absence of a blood supply.
21. Conference of Medical Royal Colleges and their Faculties in the UK, Report of the Working party on the Supply of Donor Organs for Transplantation, 1987, at 2 and 4.
22. See M Smith and P Murphy, 'The Ministerial Taskforce on Organ Donation' (2008) 9 Journal of the Intensive Care Society 72, 73.
23. Controlled non-heart-beating donation of patients in emergency departments is growing slowly in the UK.
24. K Barber and others, 'Potential for Organ Donation in the United Kingdom: Audit of Intensive Care Records' (2006) 332 British Medical Journal 1124.
25. For the period 2009-10, of the 1368 patients who were possibly going to develop brain stem death, only 1026 were tested.
26. Organs for Transplants, n 9, at para 4.20.
27. Report of the British Transplantation Society Working Party on Organ Donation, 1995, at 35.
28. See C Johnson and others, 'Organ Donation: A Statewide Survey of Trauma Surgeons' (2001) 51(1) Journal of Trauma-Injury Infection and Critical Care 110.
29. M Sanner and others, 'Obstacles to Organ Donation in Swedish Intensive Care Units' (2006) 32 Intensive Care Medicine 700.
30. See Oram and Murphy, n 10.
31. Sanner and others, n 19, at 703.
32. There is even a view among some clinicians that non-heart-beating donation is undermining the potential for heart-beating donation, although the evidence to support this is presently limited. Some brain-dead individuals become non-heart-beating donors instead, but this appears to be infrequent. There were only 15 such cases in the period April 2008-September 2009.
33. There are also procedures designed to facilitate transplantation in general ways e.g. pre-mortem blood sampling for virology screening and tissue typing. Existing blood samples may be tested for the purposes of transplantation where it is reasonably believed the person lacks capacity and that such storage and use would be in the person's best interests, see Human Tissue Act 2004 (Persons Who Lack Capacity to Consent and Transplant) Regulations SI 2006 No 1659.
34. Organs for Transplants, n 9, at 34.
35. Airedale NHS Trust v Bland [1993] AC 789 at 883G.
36. J Coggon and others, 'Best Interests and Potential Organ Donors' (2008) 336 British Medical Journal 1346.
37. House of Lords Select Committee Report of the European Union Committee, Increasing the Supply of Donor Organs within the European Union (Volume I: HL Paper 123-1, 17th Report of Session 2007-08), paras 262 and 440.
38. Legal Issues Relevant to Non-heartbeating Organ Donation, n 2, at 6.11.
39. See generally, General Medical Council, Treatment and Care Towards the End of Life: Good Practice in Decision Making, GMC, 2010.
40. See also M Brazier and S McGuinness, 'Respecting the Living Means Respecting the Dead Too' (2008) 28 Oxford Journal of Legal Studies 297.
41. It is widely perceived to be unlawful in Sweden to interrogate the organ donor register prior to death (Desatnik, personal correspondence, 2009). At the least it is not permitted.
42. The law governing organ donation in the Netherlands currently requires that relatives not be approached for consent to donation until after the death of the donor.
43. Intensive Care Society, Guidelines for Adult Organ and Tissue Donation, 2005, at 25.
44. King's Fund Institute Report, A Question of Give and Take: Improving the Supply of Donor Organs for Transplantation, Research Report 18, London, 1994, at 64.
45. British Medical Association, Medical Ethics Today (BMJ Publishing Group, 1993), at 28.
46. H Riad and A Nicholls, 'Elective Ventilation of Potential Organ Donors' (1995) 310 British Medical Journal 714, 715.
47. Organs for Transplants, n 9, at para 4.10.
48. See M Snoeijs and others, 'Controlled Donation after Cardiac Death: A European Perspective' (2007) 21 Transplantation Reviews 219, 221.
49. See www.guardian.co.uk/world/2008/feb/28/usa.internationalcrime.
50. Legal Issues Relevant to Non-heartbeating Organ Donation, n 2, para 6.12.
51. Organs for Transplants, n 9, at paras 1.20 and 4.18. See also Increasing the Supply of Donor Organs within the European Union, above, n 28, at para 437 and the Government Response to the House of Lords European Union Committee Report on 'Increasing the Supply of Donor Organs within the European Union, 17th Report of Session 2007-08', at para 4.7.
52. Guidelines for Adult Organ and Tissue Donation, n 33, at page 30.
53. Academy of Medical Royal Colleges, A Code of Practice for the Diagnosis and Confirmation of Death, 2008, s 7.3.
54. Issues relating to the determination of death in this context are controversial, and are explored in D Price, 'Promoting Organ Donation: Challenges for the Future', in A-M Farrell, M Quigley and D Price (eds), Organ Shortage: Ethics, Law and Pragmatism (Cambridge University Press), in press.
55. House of Lords Committee on the European Union, Increasing the Supply of Donor Organs within the European Union (Volume II: HL Paper 123-II, 17th Report of Session 2007-08), Dr Paul Murphy, at 114.
56. M Bell, 'Non-heartbeating Organ Donation: Clinical Process and Fundamental Issues' (2005) 94 British Journal of Anaesthesia 474, 476.
57. See S Moratti, 'The Development of "Medical Futility": Towards a Procedural Approach Based on the Role of the Medical Profession' (2009) 35 Journal of Medical Ethics 369.
58. Jurisdictions, however, vary in the terminology used, with France employing the expression 'unreasonable obstinacy' for instance; but the essential concept alluded to remain the same.
59. For example, the notion of quantitative futility put forward by Schneidermann et al based on a 1% success threshold, see L Schneidermann, N Jecker and A Jonsen, 'Medical Futility: Its Meaning and Ethical Implications' (1990) 112 Annals of Internal Medicine 949.
60. Re L (Medical Treatment: Benefit) [2004] EWHC 2713; [2005] 1 FLR 491 at 494.
61. See S Miles, The Hippocratic Oath and the Ethics of Medicine (OUP, Oxford 2004).
62. Indeed, the recent GMC Guidance utilises the overarching notion of 'overall benefit', see Treatment and Care Towards the End of Life: Good Practice in Decision Making, n 30.
63. See A Slowther, 'Medical Futility and "Do Not Attempt Resuscitation" Orders' (2006) 1 Clinical Ethics 18.
64. Airedale NHS Trust v Bland [1993] AC 789 at 867E. Indeed, the continued administration of artificial nutrition and hydration in that case was undoubtedly sustaining life.
65. See also D Price, 'Fairly Bland: An Alternative View of a Supposed new "Death Ethic" and the BMA Guidelines' (2001) 21 Legal Studies 618, 625-8.
66. Which has already been enacted in 39 states (and there is legislation pending in at least half of the remaining states).
67. United States Commissioners for Uniform State Laws, Uniform Anatomical Gift Act 2006 as amended, s 14c. Indeed, even a statement in a power of attorney or advance directive is not to be taken in itself to amount to a contrary intent.
68. This is argued by some to run contrary to the policy of the Patient Self-Determination Act 1991, see, e.g., J Verheijde, M Rady and J McGregor, 'The United States Revised Uniform Anatomical Gift Act (2006): New Challenges to Balancing Patient Rights and Physician Responsibilities' (2007) 2 Philosophy, Ethics and Humanities in Medicine 19.
69. See Airedale NHS Trust v Bland [1993] 1 All ER 821 per Lord Goff of Chievely at 869.
70. Treatment and Care Towards the End of Life: Good Practice in Decision Making, n 30, at para 31.
71. M Bell, 'Emergency Medicine, Organ Donation and the Human Tissue Act' (2006) 23 Emergency Medicine Journal 824, 825.
72. See M Parker and S Shemie, 'Pro/Con Ethics Debate: Should Mechanical Ventilation be Continued to Allow for Progression to Brain Death so that Organs can be Donated?' (2002) 6 Critical Care 399, 401.
73. Above, n 18, at 35.
74. Although, giving evidence to the House of Lords Committee on the European Union, Dr Paul Murphy recently denied that this was a major causal factor in the decision not to support potential donors to brain (stem) death, see Increasing the Supply of Donor Organs within the European Union (Volume II: Evidence), Dr Paul Murphy n 47, at 114.
75. R Sells, 'Elective Ventilation of Potential Organ Donors: Practical Implications' (1995) 310 British Medical Journal 714, 717.
76. The authors of the Exeter EV protocol argued that one was merely ventilating a corpse, see A Nicholls and H Riad, 'Organ Donation (Letter)' (1993) 306 British Medical Journal 517, but it seems that ventilation may sometimes delay the onset of brainstem death.
77. King's Fund Institute Report, n 34, at 65.
78. See, e.g., P Ramsey, The Patient as a Person (Yale University Press New Haven 1970), 210.
79. See H Kuhse and P Singer, 'Prolonging Dying is the same as Prolonging Living - One More Response to Long' (1991) 17 Journal of Medical Ethics 205.
80. See generally D Dwyer, 'Beyond Autonomy: The Role of Dignity in "Biolaw" ' (2003) 23 Oxford Journal of Legal Studies 319.
81. Airedale NHS Trust v Bland [1993] AC 789 at 826F and 829E.
82. King's Fund Institute Report, n 34, at 65.
83. T Madan, 'Dying with Dignity' (1992) 35 Social Science and Medicine 425, 428.
84. See also S Timmermans, 'Resuscitation Technology in the Emergency Department: Towards a Dignified Death' (1998) 20 Sociology of Health and Illness 144.
85. A Browne, G Gillett and M Tweeddale, 'Elective Ventilation: Reply to Kluge' (2000) 14 Bioethics 248.
86. See Parker and Shemie, n 61, at 402.
87. In Airedale NHS Trust v Bland [1993] AC 789 such treatment was legally able to be withdrawn from a pvs patient as it was not in the patient's best interests, similarly in many other decided UK cases. However, court involvement would be mandated in such a case at the present time.
88. Treatment and Care Towards the End of Life: Good Practice in Decision Making, n 30, at para 54.
89. Although such a rationale is occasionally advanced, for example by the Royal College of Nursing in Review of the Legal, Ethical and Nursing Issues of Harvesting of Organs, RCN, 1993.
90. Guidance issued in New South Wales states 'Implied donor consent to such procedures is theoretically applicable, but such consent can only be presumed when the person has consented to organ donation while alive, in the context of adequate awareness of procedures involved in DCD.
91. This understanding does not presently exist in the community', see Organ Donation after Cardiac Death: New South Wales Guidelines, Department of Health NSW, 2007, at 6.
92. E.g., s 4(7), Mental Capacity Act 2005.
93. In England and Wales, relatives are only afforded such formal legal powers where they have been appointed under a lasting power of attorney in accordance with the Mental Capacity Act 2005. In Scotland, a continuing welfare attorney may be appointed under Part 2 of the Adults with Incapacity (Scotland) Act 2000.
94. See A-M Slowther, 'The Role of the Family in Patient Care' (2006) 1 Clinical Ethics 191.
95. H Ducharme, 'Thrift Euthanasia in Theory and Practice' in M Freeman and A Lewis (eds), Law and Medicine: Current Legal Issues (Vol 3 Oxford University Press, Oxford 2000), 493, 511.
96. There is considerable research showing that substitute decision-makers frequently 'mistake' the decision that the individual would have made themselves had they been able.
97. See, e.g., K Covinsky and others, 'Communication and Decision-making in Seriously Ill Patients: Findings of the SUPPORT Project' (2000) 48 Journal of the American Geriatrics Society S187-93.
98. See also J Samanta, 'Lasting Powers of Attorney for Healthcare' (2009) 17 Med L R 377.
99. The Adults with Incapacity (Scotland) Act 2000 employs the terminology of 'benefit' instead.
100. The position in Northern Ireland is still governed by the common law in this sphere although legislation is anticipated shortly.
101. In re S (Adult Patient: Sterilisation) [2001] Fam 15. See also Regina (N) v M and others [2003] 1 WLR 562. See also In re A (Medical Treatment: Male Sterilisation) [2000] 1 FCR 193 at 200.
102. Ahsan v University Hospitals Leicester NHS Trust [2007] PIQR P19.
103. See J Coggan and P Murphy, 'Ante-Mortem Issues Affecting Deceased Donation: An Ethico-Legal Perspective' in A-M Farrell, M Quigley and D Price (eds), Organ Shortage: Ethics, Law and Pragmatism (Cambridge University Press), in press.
104. Scottish Government, Guidance on Legal Issues Relevant to Donation Following Cardiac Death, 2010, at para 19.
105. Occasionally, life support is also maintained in a pregnant woman to enable a foetus to reach viability.
106. Increasing the Supply of Donor Organs within the European Union, n 28, at paras 262 and 440.
107. J Neuberger, 'Elective Ventilation of Potential Organ Donors: The Lay View' (1995) 310 British Medical Journal 714, 715.
108. In a survey of UK intensivists, while the majority stated that they would be prepared to alter therapy once the decision to withdraw treatment had been made, 42% would not, see Oram and Murphy, n 10, at 48.
109. A Code of Practice for the Diagnosis and Confirmation of Death, n 45, at s 7.1.
110. Smith and Murphy, n 14, at 73.
111. See K Wood and J McCartney, 'Management of the Potential Organ Donor' (2007) 21 Transplantation Reviews 204, 205.
112. Snoeijs and others, n 40, at 222.
113. Legal Guidance Relevant to Non-heartbeating Organ Donation, n 2, at paras 5.2 and 6.10.
114. S 22, Organ Donation Act 1996.
115. Editorial, 'Non-heart-beating Organ Donation - Solution or a Step Too Far?' (2007) 62 Anaesthesia 431, 432.
116. Although, the use of heparin is considered the current standard of care in US centres, see J Phua and others, 'Pro/Con Debate: In Patients who are Potential Candidates for Organ Donation After Cardiac Death, Starting Medications and/or Interventions for the Sole Purpose of Making the Organs more Viable is an Acceptable Practice' (2007) 11 Critical Care 211, 212.
117. Roberston argues that drugsmaintaining organ function and even cannulation measures are both lawful and ethical where they cause no harm to the patient and where the patient or a proxy has consented to them, see J Robertson, 'The Dead Donor Rule' (1999) 29 Hastings Center Report 6, 12.
118. Some nations permit donation after euthanasia anyhow, see, e.g., D Ysebaert and others, 'Organ Procurement after Euthanasia: Belgian Experience' (2009) 41 Transplantation Proceedings 585.
119. Two leading ethicists have recently proposed such a strategy for resolving the organ shortage generally, see D Wilkinson and J Savulescu, 'Should We Allow Organ Donation Euthanasia? Alternatives for Maximising the Number and Quality of Organs for Transplantation' Bioethics, Early Online, 3 May 2010.
120. 'Report of a National Conference on Donation after Cardiac Death' (2006) 6 American Journal of Transplantation 281, 283.
121. Institute of Medicine Report, Organ Donation: Opportunities for Action (National Academies Press, Washington, DC 2006), at 147.
122. Institute of Medicine, Non-heart-beating Organ Transplantation: Medical and Ethical Issues in Procurement (National Academy Press, Washington, DC 1997), at 52.
123. Organ and Tissue Donation after Death, for Transplantation: Guidelines for Ethical Practice for Health Professionals, National Health and Medical Research Council, 2007, at 29.
124. Organ Donation after Cardiac Death: New South Wales Guidelines, n 77, at 5.
125. See, e.g., Phua and others, n 101, at 212. The Institute of Medicine Report, however, did not consider that the doctrine could justify such practices where they caused harm, n 106 at 51-2.
126. R Veatch, Transplantation Ethics (Georgetown University Press, Washington, DC 2000) at 220.
127. J DuBois, 'Is Organ Procurement Causing the Death of Patients?' (2002) 18 Issues in Law and Medicine 21, 38.
128. For example in R v Adams [1957] Crim LR 365.
129. For instance, in the context of the separation of conjoined twins, see Re A (Children) (Conjoined Twins: Surgical Separation) [2001] Fam 147 at 199D per Ward LJ and 218A per Brooke LJ.
130. Of course, the doctrine is hugely contentious in any event, see, e.g., D Price, 'Euthanasia, Pain Relief and Double Effect' (1997) 17 Legal Studies 323.
131. See generally S Sheldon and S Wilkinson, 'Conjoined Twins: The Legality and Ethics of Sacrifice' (1997) 5 Med LR 149.
132. The argument that the removal of vital organs is intended whilst the ensuing death is not, however, raises thorny issues of 'connectedness' to outcomes which have bedevilled the doctrine throughout its history.
133. Legal Guidance Relevant to Non-heartbeating Organ Donation, n 2, at para 6.14.
134. Femoral cannulae have a considerably larger bore than venous cannulae.
135. In Airedale NHS Trust v Bland [1993] AC 789 at 831, Lord Justice Hoffmann observed that some medical interventions deny dignity even where the person lacks conscious awareness of them.
136. See Organs for Transplants, n 9, at 33.
137. A Code of Practice for the Diagnosis of Brain Stem Death - Including Guidelines for the Identification and Management of Potential Organ and Tissue Donors, Department of Health, 1998, para 8.1.
138. See also United Kingdom Hospital Policy for Organ and Tissue Donation, UK Transplant, 2003, para 7.2.
139. Personal communication, Gert van Dijk.
140. Guidelines for Adult Organ and Tissue Donation, n 33, at 25.
141. Treatment and Care Towards the End of Life: Good Practice in Decision Making, n 30, at para 81.
142. S 22, Organ Donation Act 1996.
143. Law reform proposals are presently awaiting final endorsement.
144. Organs for Transplants, n 9, at 11.
145. G van Dijk, 'The Gray Area between Life and Death', unpublished paper.
146. See, e.g., the Liverpool End-of-Life care Pathway .
147. For a contrary view see, e.g., D Gardiner and R Sparrow, 'Not Dead Yet: Controlled Non-heart-beating Donation, Consent and the Dead Donor Rule' (2010) 19 Cambridge Quarterly of Healthcare Ethics 17.
148. Above, n 19, 705.
149. The BMA has previously argued in favour of a form of advance directive or revised donor card allowing this issue to be addressed, see BMA, Medical Ethics Today: Its Practice and Philosophy, BMA, London, at 28.
150. See also J McHale, 'Elective Ventilation - Pragmatic Solution or Ethical Minefield?' (1995) 11 Professional Negligence 23, 24.
151. In the Netherlands, some such measures are currently being put in place. Michael Bos, Health Council (personal communication).
152. Organs for Transplants, n 9, at para 1.24.