Memorandum by Dr David J Hill MA FRCA
This evidence is submitted from an individual.
I am a retired Consultant Anaesthetist from Addenbrooke's Hospital
in Cambridge with more than thirty years experience and concern
about the medical, ethical and legal problems associated with
organ harvesting.
INTRODUCTION
1. The issues raised in the EU Commission's
Communication to the European Parliament assume that the present
techniques of organ harvesting are scientifically and ethically
correct and that we merely require a system for obtaining more
donor organs.
2. However, the perceived beneficial ends
for recipients are only obtained by unacceptable means of obtaining
donor organs, which rely on insecure pragmatic ways of determining
death for transplant purposes; deception by omission in failing
to ensure that donors understand this different meaning of death;
and failure to obtain informed consent for organ harvesting.
DIAGNOSING DEATH
3. Death, in lay terms, implies the complete
absence of life (in the same way that darkness implies the complete
absence of light). Death can only be assured by complete cardio-pulmonary
failure over a period of time and at normal temperature.
4. Because the major organs, especially
heart, lungs and liver, do not survive after death at normal temperatures,
it is necessary for these organs to be taken from living bodies.
(Kidneys can survive after cardio-pulmonary death for some hours
and corneas for much longer. It has become usual practice, though,
to take kidneys also from living bodies).
5. It became the practice in the UK in 1979
to determine that patients, who were previously (1976) given a
prognosis that they were irrecoverable (but not yet
dead and thus might have life support removed and be allowed
to die), should, by the same tests, in future have the diagnosis
made that they are already dead. It remains the situation
that some doctors (myself included) may perform the tests and
allow life support to be removed, but not pronounce death until
all such life support has been removed (ie for the ventilator
to be turned off) for a period of time. This period of time is
arbitrary but at least is many minutes.
6. In the UK, after certain pre-conditions,
only some tests for brainstem activity need be made at the bedside
for death to be declared. In other countries different rules apply
(eg the requirement for absent electro-encephalographic activity
or absence of cerebral blood flow by arteriography). This has
led to the paradox that a patient may be regarded as dead in one
country but not in another, and in the UK can be certified dead
by one doctor or doctors but not by others. Both cannot be factually
correct.
7. This synthetic concept of death (in the
UK) allows for a patient who is being artificially ventilated
("on a life support machine") but has spontaneous heartbeat
and circulation, is warm and pink, has functioning physiology
(ie heart, lungs, liver, kidney functioning), has residual brain
and central nervous system activity, and is responsive to surgery
such that paralysing drugs and some form of anaesthesia are required
for the surgery—such a patient can be declared dead for
transplant purposes. It is inconceivable that such a responsive
patient, with so many signs of life, could legitimately or ethically
be cremated or buried or be subjected to a post mortem
examination. Death for transplant purposes is different from death
for all other purposes.
8. As an anaesthetist, I have particular
anxiety that whereas most, but not all, anaesthetists would give
a full anaesthetic for removal of donor organs, others would not
see the necessity for anaesthetising a patient who has been declared
dead. Increasingly it appears that non-medically qualified technicians
rather than medically qualified anaesthetists deal with the organ
donor during the operation. No animal, reactive and with so many
signs of life, could legally be subjected to surgery without anaesthesia.
There is no requirement for organ donors to be given anaesthesia—they
have lost such rights by being declared dead.
POTENTIAL DONORS'
UNDERSTANDING OF
DEATH
9. In various places in the Communication
from the Commission to the European Parliament and the Council
on "Organ donation and transplantation: policy action at
EU level", reference is made to "deceased"
organ donors (Guidance for submitting written evidence, page 3;
Introduction, para 6; Action plan on strengthened co-operation
between Member States, para 1; 2.1 Transplantation risks, para
2) and "death" of organ donors (3.2.1. Co-operation
between Member States—organ availability). Ordinary use
of these words and dictionary definitions, imply the complete
absence of life. No-where is there any indication that they are
here used quite differently.
10. In the UK there is no indication on
Donor Cards or the Donor Registry that the phrase "after
my death" to which potential donors consent has a different
and extra-ordinary meaning from the usual lay understanding of
death.
11. There is a reported 40-50% refusal rate
by relatives at the bedside of patients on "life support"
for whom consent for removal of organs for transplantation is
sought. It is likely that that is when relatives observe that
the patient, said to be dead, retains many attributes of life,
eg respiration, circulation, nutrition, responsiveness and, in
some reported cases, maintenance of a pregnancy until delivery
is possible.
THE QUESTION
OF CONSENT
12. The basis of consent is that full information
and explanation is given by an attending doctor and that both
patient and doctor sign the consent form in agreement. This applies
even to minor procedures.
13. For the Donor Card or Registry, the
UK Government encourages "consent" to be obtained by
the discredited method of "ticking boxes" on a variety
of forms, from Driving Licence applications to company Loyalty
Card applications. Others can be picked up in pharmaceutical and
other shops. The consent to donate organs is worded "after
my death", but there is no explanation that "death"
will be determined by an unfamiliar and unknown means. There is
no requirement for explanation or counter-signature from a doctor.
If the doctor and potential donor are not ad idem with
the nature of death, consent cannot be said to be informed and
thus not valid.
14. In the UK the Human Tissue Act (2004)
states that the bequest of a body post mortem for research
or education must be made by the donor in writing and signed in
the presence of at least one witness. Power of Attorney does not
permit consent for this purpose. In this respect we give more
protection to the undoubtedly dead than to the living bodies of
organ donors.
"PRESUMED CONSENT"
AND "OPTING
OUT"
15. The notion that consent can be presumed
to a procedure to which a large majority of the population are
unwilling (for whatever reason) to sign up, is outrageous. "Presumed
consent" is not consent, involving, as it does, a
measure of compulsion. The fate of one's body should surely be
the last bastion for freedom of choice.
16. Consent should always be voluntary,
informed and positive. It is equally outrageous that the onus
should be to "opt out" rather than to "opt in".
Present consent, as given on organ Donor Cards or Registry, is
of doubtful validity (viz para 12); "opting out" would
be consent by omission.
17. If either procedure of "presumed
consent" or "opting out" were to be adopted, the
use of the word "donor" would be as inappropriate as
to refer to us as "tax donors".
THE VIEWS
OF RELATIVES
18. Although trust in the medical profession
has been severely damaged (by, for example, the Bristol and Alder
Hey scandals), we rely on doctors to determine whether we are
alive or dead. The diagnosis of death for transplant purposes
can be seen as a further deception by relatives at the bedside.
Those who altruistically offer themselves for donor organs are
in no position to assess the reality of their life or death. Relatives
of the "deceased" patient who observe what is in fact
taking place should retain the right to have their views taken
into account regarding the harvesting of organs.
8 October 2007
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