Is a judicial change needed to protect organ donation?

Abstract

Anaesthesia has carried several papers on how organ donation rates might be increased in the UK 1-3. Perhaps what is needed is more positive encouragement through a change in the law on elective ventilation? Elective ventilation involves prolonging the lives of dying donors using mechanical ventilation of the lungs, the aim being purely to assist in the procurement of organs, rather than for the benefit of the donor. A protocol of elective ventilation was introduced in 1988 by the Royal Devon and Exeter Hospital, which allowed the transfer of patients to the intensive care unit (ITU) even though there was little or no chance of survival 4; organ procurements increased by 50% in a nineteen-month period. This policy, however successful, was short lived, as it was subsequently forcibly closed down by the Department of Health over concerns about its legality. Patients whose lungs are mechanically ventilated via a tracheal tube are unable to provide consent, and in the absence of an advanced directive, doctors must act in the patient's best interests in accordance with the Mental Capacity Act 2005 5. Furthermore, advance directives can only proscribe treatment, and cannot demand treatment that is not considered by doctors to be in the patient’s best interests. Invasive ventilation of a dying patient purely for the benefit of others could amount to assault under current law. Elective ventilation of dying patients uses expensive resources 6, but this argument is not persuasive against its use, as short-term expenditure is outweighed by the long-term cost benefits of transplanted recipients’ reduced dependence on organ/ITU support. Electively ventilating dying patients risks entry into a persistent vegetative state, but this can be minimised through patient selection (e.g. choosing only those with brain haemorrhages, who have a lower risk of persistent vegetative state). Elective ventilation is an accepted practice in Spain and the USA, both of whom have higher donation rates than the UK. In the USA, ventilation is thought to be in the interest of patients who have demonstrated a willingness to donate their organs. The consideration is not made purely on medical interests, but takes into account the patient's wider best interests, encompassing the values and wishes of the patient. It is time the UK courts recognised the importance of allowing dying patients to express their (advanced) willingness to donate their organs by endorsing elective ventilation protocols.