The law relating to organ transplantation Essay Example for Free

The law relating to organ transplantation Essay Organ transplants can vastly improve patients quality of life and benefit their families and society in general by restoring an ill and dependent individual to health. On cost benefit analysis transplants prove ultimately cheaper than long-term dialysis by i 191,000 per patient on average. However, there are fewer donors than there are needy patients although this should not be the case, because the percentage of willing donors lie in the 70s. Nonetheless, actual donations languish in the 20s. I argue that this is due to the misdirected and incoherent legal structure in place. I suggest that to increase the number of organs for transplantation a presumed consent system should be implemented to close the gap between willing and actual donations. In conjunction with improved coordination this will ameliorate the severe shortage. Such a system is ethically and morally justified. I consider other options under cadaveric donation such as increased investment in coordination without a change in the default position of deference to relatives (in the footsteps of Spain), as well as alternatives to cadaveric donation, such as live donations and xenotransplantation. They are however problematic both ethically and practically, such that even if the law formally and effectively ensures that all who need organs get them, it would be normatively wrong. 1 The law relating to organ transplantation The terms of the relevant law must be subject to critique, because ultimately healthcare workers must work within the existing common law and legislation, even as they seek to save patients from an avoidable early death. The definition of death is problematic. Today the concept of brain death has been adopted by most Western countries. Others suggest however that when the capacity for sentience is irrevocably absent, the minimum criteria for personhood no longer exists, despite the presence of a functioning brain stem. Perhaps it is best to admit that it is impossible to define the moment of death with any certainty or precision, and that the important task therefore is to determine at what point in the process of dying organ retrieval becomes legitimate. In the UK, s1(4) of the HTA61 specifies that the doctor be satisfied that life is extinct before organ retrieval may take place but there is no statutory definition of death, leaving that to a matter of clinical judgement. Standard practice is for two independent doctors to perform two sets of tests to determine brain stem death. The HTA61 outdated and prevents the facilitation of a successful programme. The current system tries to allow for all possible scenarios. S1(1) approximates an opt-in system, but there is no definition of who the person lawfully in possession of the body is, and a verbal intention is only legally valid when it is made in the course of the last illness. Further, according to HSC 1998/035, 8. 2, if a patient is a recorded willing donor, there is no legal requirement to establish a lack of objection on the part of relatives, but in practice it is good practice for any objectives raised by relatives to take priority over donors wishes. S1(2) approximates a weak opt-out scheme applying where the deceased has left no recorded expression of his or her wishes. The person lawfully in possession of the body is authorised to remove organs for transplantation if reasonable enquiry shows that the deceased did not object to organ removal or that the surviving spouse or any surviving relative has no objection to the use of the organs. Although it is fairly evident why spouses should be invited to express their views, this does not reflect the reality of the situation in which many adults now live cohabitees or long term partners now fulfil this role. The system is on aggregate incoherent and piecemeal, and when an organ is taken, no one knows for sure why is it because the medical team has requested, or is it because the medical team has procured it under s1(2) of the HTA61? McLean opines that the current legislation is more of a hindrance than an assistance to an effective transplantation programme. So, to increase the number of organs for transplantation a presumed consent system should be implemented in conjunction with improved coordination to ameliorate the severe shortage. Such a system is ethically and morally justified. 2 Dead Donors Presumed Consent Historically doctors were thought reluctant to ask families of the deceased about the possibility of donating their relatives organs. However, Gentleman et al. found that in fact request rates were reasonably high such that the belief that a failure to request is the cause for organs shortage is no longer sustainable. Rather, the problem with the opt-in system is its inability to enforce deceased individuals preferences because the family vetoes it, in part because they were never made known. For a grieving and bereft family, a request for organ donation is difficult to agree to because they can only guess at the wishes of the deceased and if there were any doubt at all, would not the natural answer be a rejection? If relatives had severe objections, they should be taken into account for to do otherwise raises the spectre of the swastika, but the point remains that by changing the default position of organ donation it is a veto clearly against the deceaseds wishes, which would be rather more unlikely to take place than the current veto due to a simple lack of information. It is not that the PC system is ethically unsound. I argue that presumed consent is superior to the opt-in system because it truly ensures autonomy by giving effect to choices each person makes. It gives legal effect to individual autonomy and it ensures truly informed consent when accompanied by public education and information, instead of intuitive responses to organ donation. Nonetheless, some problems with presumed consent have been pointed out. Patient autonomy lies at the very heart of modern medicine and medical research . This is partly a reaction against medical paternalism and an increasing awareness of the integrity of the individual. It may be argued that a presumed consent (PC) system is paternalistic but it concomitantly reinforces individual autonomy and preserves the dignity and integrity of the individual especially in comparison to, for example, an organs market. McLean points out that underpinning the UK system of organ donation is the fundamental view that organ transplantation should be a gift relationship. So Sir Morris doubts that proposals to change legislation to allow presumed consent to be introduced are likely to be publicly accepted. However, why is presumed consent any less a gift? It does not mean widespread harvesting of cadaveric organs. It means greater public awareness and individual choice that is made concrete. More practical considerations also exist. First, the need for sophisticated infrastructure to maintain an opting-out register. But this is a problem of the past century. Today, only Internet access and a computer is necessary. It is no more difficult than maintaining a register for opting-in patients. If the number of donors truly reflects the number that are willing at 70% then it is in fact more efficient to keep a shorter list of those who do not wish to donate, which would constitute only 30% of the population. Secondly, there is a fear of adverse publicity if organs are taken in the face of relatives objections but as argued above, these could be taken into account, and public education moral suasion could persuade the public of the logic of a need for such a system, to cause a change in social values. For example, when the presumed consent system was implemented in Singapore, statistics showed that more people came forward as donors under a separate legal scheme as a result of heightened public awareness of great need. Even the family was more likely to agree to organ harvesting the Muslim cadaver belongs to her family, so despite the exemption of Muslims from the presumed consent system, Muslim donations rose as well. Due to the widespread awareness of the merits of organ donation with public education and the support of religious leaders with clear moral grounds for the scheme, social values developed to embrace this medical system. Third, one might ask if resources could be better employed than on the maintenance of such a system but if it solves the problem of organ shortage and alleviates medical conditions at the knife-edge between life and death, it is a small price to pay in terms of opportunity cost. Alternatives to Presumed Consent Required request of families bypasses individual autonomy. It is precisely the problem with the current system. Financial and medical priority incentives a survey of the systems currently in place reveals that compensation is illegal. Blumstein says that in the US, families are offended when financial incentives are offered when they consent to their deceased relatives organs being donated. Nonetheless, the American Medical Association (AMA) has voted to encourage studies to determine whether financial incentives could increase the pool of cadaveric organ donors. Among strategies considered are small payments to deflect the funeral cost of a relative and preferential consideration for organ donation when a member of someones family has donated an organ. This prioritisation is manifestly unethical it may be pragmatic but why should donation work on this basis? Should it not work on a basis of response to medical need, instead of allowing queue jumping by people who volunteer someone elses organs? Financial incentives could increase the pool of cadaveric organs, but there are other methods to consider namely my proposal of presumed consent which are far more egalitarian and prima facie altruistic so far as cadeveric donations are concerned. Relaxed restrictions amounts to mere tweaking of the existing system which does not address ethical problems with the current system, such as the undermining of individual autonomy. If the list of criteria for the exclusion of donors is made less stringent, to allow a greater pool of potential donors, the final filtrate of donors will still be paltry in comparison with a comprehensive overhaul of the current system. Improved coordination take for example Spains system based on familial consent. The lessons learnt are that a decentralised system appears most effective, comprising 1) local organisations that focus mainly on organ procurement and promotion of donation and 2) large structures that focus on promoting organ sharing and co-operation. This simply means more investment is needed. The real issue remains this: if the main reason forwarded for not having the opt-out system diminished personal freedom is the same reason for why the Spanish coordination system works, should we not be wary, even if the numbers crunch delectably? Coupled with the PC system however this would greatly increase the effectiveness of the organ transplantation system and protect autonomy too. Elective Ventilation of deep coma patients close to death with no possibility of recovery for a few hours to preserve their organs long enough to prepare for their removal after death. A trial held in Exeter in 1988 led to a 50% increase in the number of organs suitable for transplantation, but was halted in 1994 when the Department of Health declared in unlawful, because it was not in the patients best interests but whilst of no direct benefit to the patient, it is not contrary to the patients interests and has the potential to benefit others. Nonetheless, this would still be subject to relatives vetoes without a systemic revamp.