Pre-mortem transplantation optimizing interventions: the legal status of consent

The focus of this paper is on consent issues surrounding pre-mortem transplantation optimizing interventions. First, we explore the potential consequences of the different types of pre-mortem transplantation optimizing interventions that might be used, and we examine the current Canadian practice with respect to these interventions. We then analyze the status of consent to pre-mortem transplantation optimizing interventions under the current legal framework. Finally, we provide recommendations on how to improve the current legal framework.

In Canada, as in many countries in the world today, there is a shortage of organs available for transplantation. Canada's deceased donor rate was 12.8 per million in 2005, a rate that has been stable over the past 12 years. At the end of 2005, the number of Canadians on waiting lists for an organ was 4,025 (125 out of every million Canadians). In total, 283 patients died in 2005 while waiting for new organs. To address the shortage of available organs, a number of changes have recently been made to organ donation practices and protocols. The use of pre-mortem transplantation optimizing interventions is a significant issue in organ donation, and it has become increasingly important to reflect on the use of such interventions, in light of these new practices. "Pre-mortem transplantation optimizing interventions" are interventions that are carried out on a patient, before his or her death, for the purpose of optimizing the chances of successful transplantation.

We argue that consent is legally required and must be express and competent patients have the legal authority to consent; but the law with respect to legal authority to consent on behalf of incompetent patients varies across the country. We come to the unsettling conclusion that the legality of pre-mortem transplantation optimizing interventions in many circumstances is at best questionable. We provide concrete recommendations (draft statutory text) on how to improve the current legal framework.