Pre-Mortem Interventions in Donation after Circulatory Death: A Proposal for Action

Abstract

Contrary to the thrust of some government guidelines, pre-mortem interventions in organ donation after circulatory death (DCD) – even those involving some risks – can support (rather than conflict with) a potential donor’s legal “best interests” by ensuring that a donor’s organs have a better chance of saving other lives. It is important that UK law and guidelines which affect transplantation and transplantation research allow such conclusions to be reached when supported by the evidence for example a donor’s expressed wish to be an organ donor after death. It is also important that the law, guidelines and research ethics committees support further research studies. There are many ways in which pre-mortem interventions could be improved and new interventions are likely to emerge. Research will also generate data that enables better and more informed risk-benefit analyses to ensure a donor’s best interests have been considered as carefully as possible.

We recommend more specialised input into the UK research ethics committee approvals process, and caution against an overly narrow interpretation of section 31 of the Mental Capacity Act 2005(UK). The Court of Protection may also have a role to play. In situations where the pre-mortem intervention qualifies as “serious medical treatment”, the Court’s current Practice Directions recommend (or require) that doctors and researchers seek a declaration of lawfulness prior to carrying out a pre-mortem intervention. In time it is hoped that the particular pre-mortem interventions that fall within this category will become clearer and that the process of seeking a declaration will not be unfeasibly burdensome for the rapid time-frames of DCD donation. An issue for further research is the legality and ethics of pre-mortem interventions with DCD donors in other jurisdictions such as the US, Belgium and Australia.

Keywords: Medical Ethics, Organ Donation, Donation after Circulatory Death, DCD, Medico-Legal, Organ Transplantation, Organ Transplants, Clinical Guidelines, Organ Transplantation Law, Mental Capacity, Best Interests, Research Ethics

JEL Classification: K3, K39