An Ethical Debate: A legal commentBMJ 1995; 310 doi: http://dx.doi.org/10.1136/bmj.310.6981.718 (Published 18 March 1995) Cite this as: BMJ 1995;310:718
- Robert Francis
There is a distinction between the rights in respect of a dead body and a living patient. After death, provided the statutory requirements are complied with,3 it is lawful to remove organs for donation. Failure to comply with those requirements may be a criminal offence4 5 or a tort, but when removal of organs is so justified, postmortem steps to preserve the body for that purpose are surely also authorised.
Before death a patient who lacks the capacity to consent can be given medical treatment if it is in his or her best interests, to be determined in accordance with responsible and competent medical practice.6 This principle derives from the legal doctrine of necessity, which permits intervention in the affairs of another without his or her consent in certain circumstances. In every case, however, the intervention must be intended to be for that person's benefit. Treatment which cannot cure or ameliorate the patient's condition is unlikely to be in his or her interests: indeed there are judicial suggestions that a doctor has a duty to discontinue the artificial prolongation of life where this ceases to have any therapeutic point.7 Therefore this principle does not justify elective ventilation of an unconscious dying patient for the sole or primary purpose of preserving organs for donation. The 1983 code of practice8 is confusing; paragraph 26 may seem to sanction elective ventilation, but paragraph 22 makes it clear that any tests or treatment “must be for the patient's benefit.”
Apart from such a justification, invasive medical procedures can be rendered lawful only by valid consent. In the case of an unconscious adult no relative or other person has power to give such authority. Whereas parents of children under 16 may authorise medical treatment,9 this power may not extend to procedures which are not in the child's interests, and it might be necessary to obtain the court's consent.5
If no defence of necessity or consent is available the procedure could be considered an unlawful assault. Whereas a prosecutor would have to prove that the patient was still alive at the time, a claim that the doctor did not know the patient was alive would be a dubious defence when the means of diagnosis were available.
If elective ventilation were thought by the profession and society to do no harm to the patient and to be of benefit to others, a consent might be obtained by a carefully drafted amendment to the wording of the organ donor card. Such consent, if properly informed, would arguably justify artificial ventilation; if competent patients can decline lifesaving treatment why should they not be able to consent to such a non-therapeutic procedure?