Examination of Witnesses (Questions 411
- 419)
THURSDAY 20 MARCH 2008
Dr John Jenkins and Ms Jane O'Brien
Q411 Chairman: Welcome to
you. Would you like to make a short introductory statement before
we begin?
Dr Jenkins: Thank you, my Lord Chairman, and
thank you to the Committee for affording us the opportunity to
join you in your deliberations today. My name is Dr John Jenkins.
I am Chairman of the Standards and Ethics Committee at the General
Medical Council and in my day job I am a consultant paediatrician—as
you probably gathered, in Northern Ireland. Really all I wanted
to say by way of opening comment was to refer you to annex C of
the yellow papers in which we have set out the role of the GMC.
It is particularly important that in relation to specialist areas
such as the one you are considering we need to point out the very
broad remit of the GMC in relation to what we describe as our
four interlocking functions: keeping an up-to-date register of
qualified doctors; fostering good medical practice—which
is the bit in which we are particularly involved; equally, promoting
high standards of medical education right across the spectrum
of medical education; and, finally—possibly the one which
gets most publicity but which in our view is perhaps not the most
important aspect—dealing firmly and fairly with doctors
whose fitness to practice is in question. It is in the context
of our remit as a whole within the overall functioning of the
General Medical Council that we wish to give evidence today.
Q412 Chairman: Having set
out that context, I am not going to read out the whole question
I have but simply say: in that context, what is the GMC's position
in relation to fostering good practice in relation to organ donation
and transplantation?
Dr Jenkins: We go back to the Medical Act and
from that we derive our authority to issue guidance to the medical
profession on issues relating to standards and ethics. It is in
that broader context that we would wish to give guidance to the
profession which would be relevant to those working in this specialist
area. Our general guidance is set out in our booklet Good Medical
Practice which we reissued in 2006. We can certainly make
copies available and it is also available on the website. That
sets out the ethical framework for all doctors practising right
across the very broad spectrum of medical practice and, while
it will not relate to specific specialist areas, such as the one
we are discussing today, it does deal with topics like the requirement
for doctors to listen to patients and respect their views, for
doctors to respect patients' dignity, to provide treatment within
a context of consent or other valid authority, to act within the
law, for doctors to keep up-to-date, to work within their competence
and, indeed, to work effectively with other healthcare professionals
in teams. All of those are relevant to the issue of transplantation
although they do not deal with it specifically, but it is that
ethical context which the GMC sets and within which each specialist
area of medical practice has to interpret that guidance and then
to act ethically.
Q413 Chairman: What thinking
has there been in the GMC about the balance between working with
families and the careful work that has to be done at the point
of asking for organs, and the worry about the queue, if you like—the
people who are waiting for organs -and how you balance those two
issues?
Dr Jenkins: We have recently been considering
the issue of consent particularly. We are just finalising our
guidance on consent at the moment, so that type of issue has been
one that we have considered, although not in the specific but
in the more general sense. The concept which we have been trying
to develop in recent years at the GMC is one of partnership. Doctors
and patients and, indeed, the public need to develop partnerships
to which they each bring different strengths, different knowledge,
different concerns relating to any individual question, and a
question relating to the availability of organs for transplant
is one where we would see this having to develop. In effect, if
a doctor has been working with a family in an intensive care setting
or whatever setting and has developed a relationship with them,
so that there is a common understanding of how the family are
addressing the particular issue, it is much easier then for a
decision to be made which is relevant to that particular setting
and which is agreeable within that particular family setting.
In developing our consent guidance, we have not specifically addressed
the issue that is before us today. In particular, we have not
specifically addressed the issue of presumed consent because,
at the moment, that is not something which is within the legislative
framework and so is not something which our remit would give us
the authority to advise doctors. But we have looked at it in the
broader context of how families, doctors and, indeed, patients
can work together to reach agreed decisions.
Chairman: Clearly there are other issues
when people do not have a relationship because they have been
knocked down in the road. That is one of the partnerships we know
there is a problem about, and Lady Perry is going to follow this
up.
Q414 Baroness Perry of Southwark:
We have been told there is a conflict between the Human Tissue
Act and the Coroners Act and that this leads to a lack of clarity
about the way in which potential organ donors should receive medical
treatment. That seems to be particularly the case with non-heart-beating
donors. How should this be determined so as to reconcile the conflict
between the donors' best interests and retrieving organs of good
quality? Does the GMC recognise this problem? How would you like
to see clarification?
Ms O'Brien: I am Jane O'Brien. I am Assistant
Director in the Standards and Fitness to Practise Directorate.
We do know about this issue. I think it arises where there has
been a sudden or violent death which needs to be reported to a
coroner. At that point, the coroner is responsible for what happens
to the body and, clearly, in some cases, where a serious crime
is suspected, a murder or whatever, there would be a post-mortem,
which may have police evidential value, where it may never be
sensible or appropriate to try to use the organs for donation
purposes. There are a number of cases where it is not nearly so
clear cut and there is no particular reason why the donation should
not go ahead. As we understand it, the main problem is the variation
across the country in the view that coroners take. There is nothing
in the law which precludes them from immediately releasing the
body for donation, but it is, if you like, a question of personal
caution in the way they would interpret their responsibilities.
Some unified government advice would be probably the solution
to try to get consistency and not to have very cautious coroners
preventing donations which other coroners would be perfectly happy
to go ahead with. There is a slightly separate problem, I might
say, which has been raised with us which is with the Mental Capacity
Act, which occurs where a person who is not brain-stem dead but
who has had major neurological trauma will be assessed to see
whether they should receive treatment, whether they are going
to get any benefit from continuing treatment, usually in an intensive
care unit. Clearly a decision has to be made in these difficult
cases as to whether there is any benefit to patients in providing
that treatment. That decision has to be made completely in that
patient's interests. If there is no overall benefit to the patient,
no prospect of recovery and their treatment is simply prolonging
the process of dying, then the normal procedure would be to stop
the treatment and the patient would die fairly quickly after that.
The difficulty there is that if you want to have a hope of using
this difficult infrastructure to use the organs from that person,
then you need some time, usually a matter of hours, to organise
the transplant teams to undertake the necessary tests, to get
things in place, and so, in the past, normally that treatment
would continue during those two/four/six hours. It is very unclear
that that is lawful under the Mental Capacity Act. You have to
take a decision in the patient's best interests and best interests
is defined. The criteria you use are defined in the Act and elaborated
in the Code of Practice which supports the Act. However, while
this Code goes quite a long way in encouraging a kind of substituted
judgment test of saying, "What is it that the patient would
have wanted in these circumstances? We will do that as being in
their best interests?" it does not quite go all the way in
doing that. It pulls back at the end, particularly in the Code
of Practice, where it says, "You can do things which benefit
others but they must be in the patient's best interests".
At this point, you have decided absolutely that it is not in the
patient's interests to continue with treatment. Nonetheless you
are going to do so, so you are saying this is really in the interests
of the recipient. Can you make that square with the Act? I think
it is possible. There are ways of reading it in which it is perfectly
reasonable to do so, to say, "Because it is clearly what
the patient wanted" or "Because they have lived a life
in which their values have been x and y which would
lead us to believe that," but it is not clear.
Q415 Baroness Perry of Southwark:
Has there ever been a test case?
Ms O'Brien: No. I think that does lead doctors
to interpret it differently and some to be very cautious about
doing something which they see to be unlawful. Again, we would
see clarification through the Code of Practice as being really
helpful in this area, to remove that question of doubt one way
or the other. It may be that government would wish to say, "No,
best interests cannot simply serve somebody else's interests at
that point in life." Fine, but at least it would resolve
the conflict.
Q416 Lord Lea of Crondall:
Are you a doctor?
Ms O'Brien: No.
Q417 Lord Lea of Crondall:
You sound to know a lot about it.
Ms O'Brien: That is a very good act!
Q418 Chairman: The job of
this Committee is really to look at the European Union dimension.
Lord Wade is going to do that but presumably that very good exposition
will have been made to the taskforce whose job it is to clarify
some of those issues.
Ms O'Brien: That is right, yes.
Lord Wade of Chorlton: Perhaps I could
ask another question first. You seem to be an expert on these
sort of things. What is the legal status of a body?
Q419 Lord Trefgarne: I asked
this question last week and got no answer.
Ms O'Brien: The body is in the possession of
somebody—usually the hospital, the Trust -once the patient
has died and it will then be released to the family. That will
not be the case where there is a need to report the death to the
coroner, where the coroner has responsibility for the body until
cremation or burial.
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