UK Donation Ethics Committee Response to the New South Wales Consultation on Ante-Mortem Interventions for Organ Donation

Abstract

This is a response to the New South Wales consultation on ante-mortem interventions for organ donation submitted on behalf of the former members of the UK Donation Ethics Committee (UKDEC), UKDEC was an independent body, hosted by the Academy of Medical Royal Colleges, and funded by all four UK Health Departments. UKDEC’s role was to consider ethical issues relating to the field of organ donation and transplantation and to provide independent advice to clinicians, policy leads and others. The NSW Discussion Paper assumes that ante-mortem interventions cannot be authorised using the Guardianship Act 1987, s.32 standard for decision-making, i.e. promoting and maintaining the patient’s health and well-being. In the response we argue that provisions in the Guardianship Act and their judicial interpretation appear to leave room for arguments that non-therapeutic medical interventions such as ante-mortem interventions to optimise donor organ quality and improve transplant outcomes could be permitted under the Act if they are in the patient’s best interests, interpreted broadly to include emotional, psychological and social interests, although an amendment to s.46 of the Act would make this clearer. In our view, the use of the Guardianship Act 1987 to make a best interests decision for the patient is to be preferred to the proposed amendment of the Human Tissue Act 1983 to permit the senior next of kin to consent to ante-mortem interventions. The latter proposal contains no standard of decision-making (for example, best interests), so senior next of kin could consent to ante-mortem interventions which are not in the patient’s best interests. The retention of ante-mortem decision-making under the Guardianship Act 1987 would achieve greater consistency and protect the patient from abuse or exploitation, as required by s.4(g). Moreover, it would avoid the use of ‘special rules’ for decisions at the end of potential organ donors’ lives, and the risk of damaging public confidence in organ donation and discouraging the registration of consent to donation.