Eligibility for Organ Donation: A Medico-Legal Perspective on Defining and Determining Death

56 Canadian Journal of Anesthesia 851, 2009

23 Pages Posted: 4 Aug 2012

See all articles by Jocelyn Downie

Jocelyn Downie

Schulich School of Law & Faculty of Medicine

Matthew Kutcher

Dalhousie University - Schulich School of Law

Chantelle Rajotte

Dalhousie University - Schulich School of Law

Alison Shea

QEII Health Sciences Centre

Date Written: 2009

Abstract

Purpose: In the context of post-mortem organ donation, there is an obvious need for certainty regarding the legal definition and determination of death, as individuals must be legally pronounced dead before organs may be procured for donation. Surprisingly then, the legal situation in Canada with regard to the definition and determination of death is uncertain. The purpose of this review is to provide anesthesiologists and critical care specialists with a medico-legal perspective regarding the definition and determination of death (particularly as it relates to non-heart-beating donor protocols) and to contribute to ongoing improvement in policies, protocols, and practices in this area.

Principal findings: The status quo with regard to the current legal definition of death is presented as well as the criteria for determining if and when death has occurred. A number of important problems with the status quo are described, followed by a series of recommendations to address these problems.

Conclusions: The legal deficiencies regarding the definition and determination of death in Canada may place health care providers at risk of civil or criminal liability, discourage potential organ donation, and frustrate the wishes of some individuals to donate their organs. The definition and criteria for the determination of death should be clearly set out in legislation. In addition, the current use of non-heart-beating donor protocols in Canada will remain inconsistent with Canadian law until more persuasive evidence on the potential return of cardiac function after cardiac arrest is gathered and made publicly available or until a concrete proposal to abandon the dead donor rule and amend Canadian law is adopted following a process of public debate and intense multidisciplinary review.

Keywords: organ donation, eligibility, health care, cardiac arrest, donor, death

Suggested Citation

Downie, Jocelyn and Kutcher, Matthew and Rajotte, Chantelle and Shea, Alison, Eligibility for Organ Donation: A Medico-Legal Perspective on Defining and Determining Death (2009). 56 Canadian Journal of Anesthesia 851, 2009, Available at SSRN: https://ssrn.com/abstract=2122675

Jocelyn Downie (Contact Author)

Schulich School of Law & Faculty of Medicine ( email )

Halifax, Nova Scotia B3H 4H9
Canada

Matthew Kutcher

Dalhousie University - Schulich School of Law ( email )

6061 University Avenue
6061 University Ave
Halifax, Nova Scotia B3H 4H9
Canada

Chantelle Rajotte

Dalhousie University - Schulich School of Law ( email )

6061 University Avenue
6061 University Ave
Halifax, Nova Scotia B3H 4H9
Canada

Alison Shea

QEII Health Sciences Centre ( email )

1278 Tower Rd
Halifax, Nova Scotia
Canada

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