Organ donation
Family Override of Valid Donor Consent to Postmortem Donation: Issues in Law and Practice

https://doi.org/10.1016/j.transproceed.2008.03.159Get rights and content

Abstract

In 2005, 3974 Canadians were on waiting lists for organ transplants and 275 patients died while waiting. Canada's organ shortage has led to calls for changes to Canada's organ donation system and its legal framework. Herein we examine an issue in which law reform could both increase the number of available organs and better align practice with respect for autonomy, a core value underpinning the Canadian legal system: the issue of family overrides of a valid donor consent to postmortem donation. That is, we examine what should happen when an individual consented to postmortem donation but the family would like to override that consent. First, we examine the requirements for valid donor consent. Second, we consider the legal status of family overrides of valid donor consent in relation to postmortem donation. Third, we describe the available data with regard to the practice of permitting families to override valid donor consent and discuss the possible reasons for this practice. Finally, we describe and defend the desired results with respect to law reform and describe the actions needed to realize these results.

Section snippets

Valid Consent Requirements

In the context of a paper on family override of valid donor consent, it is essential to first clarify the legal requirements for valid donor consent to postmortem donation. It is also important to look at this issue because many health care providers, donors, and substitute decision makers do not understand the legal requirements for a valid consent. Both substantive and procedural requirements must be considered.

Common Law

There are no Canadian court decisions that directly address the issue of family overrides of valid donor consent in the context of postmortem donation. However, the common law16 does set out rules, rights, and duties with respect to dead bodies. Although it is a common law rule that a human corpse is not property, the common law also recognizes a right to possession of the corpse for the purposes of burial, in relation to an executor's legal duty to bury the deceased.17 If there is no executor,

What Is Happening?

A 2006 Canadian survey examined the attitudes of health care professionals in regard to valid donor consent to postmortem donation and family overrides.57 Sixty-nine percent of the health care providers believed that the wishes of the family or next-of-kin would be respected over the wishes of the donor (as recorded on a signed donor card or in a donor registry). A similar survey of public awareness and opinions indicated that 64% of Canadians believed that the wishes of the deceased (as

Recommendations For Reform

With the exception of Manitoba and possibly Quebec, organ and tissue donation legislation does not permit valid donor consent to be overridden by families. This statutory position enjoys strong public support, as evidenced by further results from the 2006 survey mentioned above. This statutory position is also ethically sound, as it is supported by the principle of autonomy, the recognition that the donor has interests which survive past death and should be respected, and the substantial

Acknowledgements

The authors wish to thank members of the Dalhousie Health Law Institute, Brad Abernethy, and members of the Donation Committee of the Canadian Council for Organ and Tissue Donation and Transplantation for their helpful comments on earlier drafts of this paper. The views expressed herein do not necessarily represent the views of the CCDT and/or the federal, provincial, or territorial governments of Canada.

Notes (79)

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    2006 CORR Preliminary Report: Preliminary Statistics on Organ Donation, Transplantation and Waiting ListPresented at the CST Annual Meeting, March 2006

  • Nunavut Human Tissue Act, R.S.N.W.T. 1988, c. H-6, as duplicated for Nunavut by s. 29 of the Nunavut Act, S.C. 1993, c....
  • Alberta Human Tissue Gift Act, R.S.A. 2000, c. H-15; Saskatchewan The Human Tissue Gift Act, R.S.S. 1978, c. H-15;...
  • The Human Tissue Gift Act, S.M. 1987–88, c. 39, s. 2(2). “Unavailable” is defined in the Act as “unable to act because...
  • Informed consent is a legal doctrine that imposes a duty on health care professionals, under the law of negligence, to...
  • In the Northwest Territories, Nunavut, and Manitoba, the term “direction” is used instead of “consent.” Human Tissue...
  • K. O'Brien

    Legal issues arising from donation after cardiocirculatory determination of death

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  • Human Tissue Donation Act, S.P.E.I. 1992, c. 34, s....
  • Supra note 4, s. 2...
  • New Brunswick, Nunavut, Northwest Territories, Manitoba, and Quebec do not legally require the writing to be signed....
  • Interpretation Act, R.S.O. 1990, c. I.11, s. 29(1). Quebec is the only jurisdiction that does not define writing in its...
  • Saskatchewan Health: Becoming an Organ or Tissue Donor

  • Québec-Transplant: How to Indicate Your Wish to Donate Your Organs When You Die

  • These jurisdictions are Newfoundland, Nova Scotia, Ontario, Saskatchewan, Alberta, British Columbia, and the Yukon....
  • Quebec's postmortem consent provision allows for consent to be given verbally before 2 witnesses. Art. 43, C.C.Q....
  • Sometimes referred to as “judge-made law,” the common law is law developed over the years by judges when making...
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    [1930] 4 D.L.R. 255 (Ont. S.C.) [Hunter]. Edmonds v. Armstrong Funeral Home Ltd. (1930), 1 D.L.R. 676 (Alta. S.C.(A.D.)) [Edmonds]. See generally, Law Reform Commission of Canada: Procurement and Transfer of Human Tissues and Organs. Working Paper No. 66

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    Canadian Medical Law: An Introduction for Physicians, Nurses and Other Health Care Professionals

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  • R. v. Moyer, [1994] 2 S.C.R....
  • R. v. Mills, [1993] 4 S.C.R....
  • For an overview of historical common law cases, see R. v. Moyer (1993), 83 C.C.C. (3d) 280, rev'd [1994] 2 S.C.R. 899....
  • This consistency is due to the fact that most provincial and territorial organ and tissue donation legislation is...
  • Under Prince Edward Island's Human Tissue Donation Act, a consent that complies with the act “is binding and is...
  • E.I. Picard et al.

    Legal Liability of Doctors and Hospitals in Canada, 3rd Ed. Scarborough, On: Carswell; 1996, at 99; O'Brien, supra note 7 at 24; Somerville MA: “Procurement” vs “donation”—access to tissues and organs for transplantation: should “contracting out” legislation be adopted?

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  • As discussed later, eg, there are 3 exceptions in these tissue donation statutes. Valid donor consent cannot be acted...
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  • Ibid., s.v....
  • S.M. 1987–88, c. 39, s....
  • Supra note...
  • Art. 43...
  • See also Gouvernement du Quebec, Commission de l'Ethique de la Science et de la Technologie: Organ Donation and Transplantation: Ethical Dilemmas Due to Shortage. Position Statement. 2004

  • It is interesting to note that an earlier version of Quebec's recently passed Bill 197, An Act to Facilitate Organ...
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    An earlier unpublished version of this paper was made possible through a financial contribution from Health Canada. Jocelyn Downie has held contracts with the Canadian Council for Organ and Tissue Donation and Transplantation.

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