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An expanded interpretation of best interests is just one aspect of NHBOD which requires high-level endorsement
- M D Dominic Bell (24 June 2008)
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Ethical and legal arguments for interventions in NHBD
- Wendy A Rogers, Bernadette Richards (3 July 2008)
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M D Dominic Bell, Consultant in Intensive Care / Anaesthesia The General Infirmary at Leeds LS13EX
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As Coggan and colleagues allude to, the reintroduction of NHBOD [non- heart-beating organ donation] has proved contentious, and their multi- disciplinary analysis will hopefully promote meaningful debate within the broader profession and interested parties. Certain of their attributions are questionable however and as an early advocate of an expanded interpretation of best interests to facilitate viable organ retrieval after death,[1] I remain curious at being referenced as “challenging the lawfulness” and considering these manoeuvres “inappropriate” as justification for the authors’ position. The actual reference used, [2] reviews ‘uncontrolled’ donation, declared not to be under discussion by the authors, and it remains unclear therefore whether Coggan and colleagues believe the position expressed on the difficulties in this particular scenario to “have no solid foundation”, and be “needlessly costing the lives of patients who die awaiting transplantation”. The significance of such difficulties within ‘uncontrolled’ donation is however independently emphasised by recent reports within the lay press.[3] Regarding ‘controlled’ donation, before dismissing concerns as ‘illusory’, the authors should consider that only a minority of the population have expressed a wish to donate via the register, that little detail is provided on the various donation scenarios as part of that process, contrary to the principles within the Human Tissue Act on informed consent, and that in the common scenario where the patient is not on the register, the next-of-kin are asked for their assent to manoeuvres prior to death, despite having no formal authority under the Mental Capacity Act. These aspects do challenge an expanded interpretation of best interests in most cases and the associated professional concerns as to conflict of interest, defining futility and the elusiveness of a robust diagnosis of death, make it apparent that NHBOD requires endorsement at the highest legal and governmental level to ensure wider professional uptake.[4] A unilateral declaration of lawfulness by the authors will therefore predictably not assuage current concerns, which are amplified by the persistent failure of that higher level ratification and the associated delay in endorsing criteria for the certification of cardio- respiratory death. Whilst most practitioners would wish to support the ethical good of both organ donation and transplantation, the critical care community is naturally mindful of previous donation initiatives such as elective ventilation,[5] subsequently declared unlawful,[6] and requires confidence therefore that any activity will be ethically defensible and not generate professional vulnerability. The efforts of Coggan and colleagues need to extend beyond the BMJ therefore and be translated into lobbying at the relevant level if inroads are to be made on this issue and consequently into the divide between organ availability and unmet need. 1. Bell MDD. Non-heartbeating organ donation – clinical process and fundamental issues Br J Anaesth 2005; 94: 474-78 2. Bell, MDD. Emergency medicine, organ donation and the Human Tissue Act. Emergency Medicine Journal. 2006; 23(11):824-827. 3. John Lichfield. 'Dead' patient comes around as organs are about to be removed. The Independent Thursday, 12 June 2008 4. Bell MDD. Non-heart beating organ donation – in urgent need of intensive care. Br J Anaesth 2008; 100(6): 738-41 5. NHS Executive HSG(94)41: 1994 Oct. 6. Riad H, Nicholls A. An ethical debate: elective ventilation of potential organ donors. BMJ 1995;310(6981):714-715. Competing interests: None declared |
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Wendy A Rogers, academic Flinders University, Australia, Bernadette Richards
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To the Editor, Coggon and colleagues (1) argue that, despite the beliefs of some practitioners, current UK law permits non-harmful ante-mortem interventions to improve the prospects of donation after cardiorespiratory death. Their argument is based on the grounds that such interventions are in the patient’s best interests if that person is known to have a desire to donate organs. We agree, and made the identical legal argument in our analysis of the legal and ethical issues raised by non-heart beating donations in Australia. (2) Australian law draws upon British precedents, and like Coggon and colleagues, we used the judgment in Airedale NHS Trust v Bland [1993] AC 789 as part of our argument. In addition to the legal considerations, our paper included two ethical arguments in support of ante-mortem interventions. The first is based upon a view of consent to organ donation that takes such consent to include any necessary technical steps to achieve the desired result. If a person desires to be an organ donor, it is not unreasonable to assume that they would support any non-harmful interventions that are likely to improve the likely success of donation. This is consistent with the legal requirements of general consent to the nature of the treatment as opposed to itemised consent to each individual cut of the scalpel. Second, we argued that as some interventions before death may be harmful, it is only non-harmful interventions that may given in the absence of explicit consent. Wendy Rogers Bernadette Richards 1. Coggon J, Brazier M, Murphy P, Price D, Quigley M. Best interests and potential organ donors. BMJ 336: 1346-7. 2. Richards B, Rogers W. Organ donation after cardiac death: legal and ethical justifications for antemortem interventions. Med J Aust 2007;187:168-170. Competing interests: None declared |
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