Academic journal article Health Law Journal

Limiting Donation after Cardiac Death: Questions on Consent

Academic journal article Health Law Journal

Limiting Donation after Cardiac Death: Questions on Consent

Article excerpt


In an effort to overcome a virtually insurmountable organ shortage, various organ procurement organizations, with the support of physicians, have revived an old donation paradigm, "donation after cardiac death" (DCD), without fully considering the ethical and legal implications. This paper argues that the results of this ill-considered baste to push DCD as a new donation option are consent mechanisms of questionable legal authority, particularly concerning the role of substitute decision-makers (SDMs). In particular, this paper demonstrates that even with explicit consent and donation legislation, there remains an unfortunate legislative void regarding the ability of SDMs to consent to DCD pre-mortem interventions. The result of such a gap is a fall-back to the common law, which eliminates the ability of SDMs to consent to treatments on a donor's behalf, except in cases of minors. This void creates a clear and present need for new legislation or regulations to clarify the role and responsibilities of SDMs, failing which DCD protocols should be curtailed. The use of organ donation cards as prior consent for DCD will also be demonstrated as inadequate and arguably without legal grounding. While the primary focus of this paper is Ontario, the ethical and legal issues examined here are being grappled with in many jurisdictions.

This paper begins with an exploration of the history of DCD and the brain death standard, which DCD now seeks to supplement. One of the first re-introductions of DCD into medical practice--the Pittsburgh Protocol--will be used as a central template to explore the general development of DCD protocols. Attention will also be paid to the rationale behind the DCD push, as well as the need for a definition of death embodied by the dead donor rule. Next, the history of DCD in Canada will be examined, with an eye to developments from a pan-Canadian medical forum on DCD, as well as critiques of the national forum itself. In addition, the details of recent Canadian DCD protocols will be reviewed, primarily Ontario's Trillium Gift of Life Network. The protocols will be examined for legal and ethical issues concerning donor consent to procedures ancillary to the donation process. Finally, the legal role of SDMs will be probed given the legislative uncertainty surrounding their ability to consent to pre-mortem interventions in the donor's "best interests".


A. Brain Death and the Return to DCD: The Pittsburgh Protocol DCD is not a new donation paradigm, but a revived version of non-heartbeating donation (NHBD). NHBD was the only method of organ donation used up until the late 1960s, (1) when it was replaced by organ donation programs founded on the neurological criteria of brain death. In 1968, the Ad Hoc Committee of Harvard Medical School to Examine the Definition of Brain Death (Harvard Committee) recommended a new definition of death contrary to the standard practice at that time of cardiopulmonary death, or cessation of heart beat and respiration: brain death. (2) The switch in standards to define and determine death was primarily triggered by developments and improvements in resuscitation efforts and life-support systems that rendered the cardiopulmonary standard inadequate. (3) New technologies can resuscitate and maintain a patient on a cardiopulmonary basis when that patient has no hope for continued brain function. Thus, using the brain death standard, a patient can be declared dead and, with his or her prior consent or the SDMs' consent, the brain dead patient's organs may be transplanted.

DCD regained the spotlight in the U.S. in 1993, when the University of Pittsburgh Presbyterian Medical Center created and adopted a protocol (Pittsburgh Protocol) for NHBD. The Pittsburgh Protocol calls for the use of the cardiopulmonary criteria to declare death. The Protocol does not require complete irreversibility, as the heart could still be resuscitated after it stops beating if it were not for the overarching presence of ado not resuscitate (DNR) order. …

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