There have been many concerns about whether organ donors are dead before their organs are removed, but the current Canadian guidelines appear to make it more likely that death occurs from the removal of organs rather than waiting for death to occur and then removing organs from a dead donor.
The non-binding rules developed by a government-appointed expert panel in 2004 — designed to expand the pool of transplant donors — make it more likely that people are being declared dead when they are still alive, and were drafted with no public input, complains Jacqueline Shaw in the McGill Journal of Law and Health.
Given that the panel’s “inappropriately one-sided” guidelines emerged from a government transplant initiative, they are subject to the Charter, and appear to violate the right to life, liberty and security of the person, she argues.
“The recent government issuance of significant, dangerous, under-the-radar changes in guidelines for brain death determination in Canada is virtually unknown and warrants greater public attention,” she said in an email exchange with the National Post. “The brain-death changes dramatically increase the potential to misdiagnose as ‘brain dead’ patients who are simply suffering from temporary, reversible neurological states.”
A spokesman for the country’s largest transplant organization dismissed the lengthy analysis, though, saying the rules are “highly respected worldwide” and designed to make the process of determining brain death consistent and rigorous, not faster or easier.
“More often than not, it delays the declaration of death, so the physician at the bedside gets it right,” said Dr. Sonny Dhanani, a pediatric critical-care specialist in Ottawa and chief medical officer with Ontario’s Trillium transplant network. “At the end of the day, the goal … was to make declaration more consistent and rigorous so that we felt better about moving toward organ donation, rather than uneasy about it.”
Dr. Sam Shemi, a prominent Montreal intensive-care physician who headed the panel Ms. Shaw criticizes, told the National Post last year that current practice leaves no doubt that donors are dead, with a process that is “performed according to a higher standard than in any other [medical] situation.”
Underlying the debate are some stark statistics — the chronic shortage of donor organs means about 300 sick Canadians die every year on the waiting list.
Still, the journal article adds to a simmering controversy around declaring when critically ill patients are dead. While most in the medical community seem to accept the validity of the Canadian Council for Donation and Transplantation (CCDT) guidelines issued in 2004, a small but persistent minority of intensive-care physicians, bio-ethicists and others in Canada and the United States continue to argue that some donors may still be alive, at least technically.
A 2010 journal paper by Canadian and U.S. doctors called for a moratorium on the relatively new practice of declaring death after the heart has stopped, but without determining brain death. Another paper, co-authored by a Toronto intensive-care physician, suggested last year that the dead-donor rule be abandoned and replaced with what the doctors called a more transparent approach: telling families that their loved one is ultimately doomed, but may not be completely dead at the time the organs are removed.
The CCDT was set up by federal and provincial governments as concern grew in the 1990s about the continuing shortage of organs for transplant. The rules it drafted have been adopted by many jurisdictions across the country.
The article singled out a number of changes that Ms. Shaw said increase the potential for mistakes by making it possible to declare brain death earlier and more simply.
But Dr. Dhanani said that when the brain stem — the most primitive part of the organ that controls basic functions like breathing — no longer works, it follows that the entire brain must be dead.
The article also suggested that the guidelines’ abandoned “time-honoured” safeguards, such as not declaring brain death until anticonvulsants, sedatives or other drugs that can bring about a death-like state have drained completely from the system. Dr. Dhanani said the rules still require care to ensure such medicines are not affecting the patient’s condition, but said there is really no way to determine they are completely gone from someone’s body.
The 2004 rules say the separate brain-death tests that must be carried out by two different doctors can be performed simultaneously. The previous guidelines called for a wait time of up to 24 hours in between examinations, which Ms. Shaw said allowed for the slim possibility the person could be deemed alive at the second test. There is no evidence, though, that the lag-time ever made any difference, said Dr. Dhanani.
Ms. Shaw argued the CCDT’s recommendations “dramatically redefined” how death is determined, but said the broad public was never consulted in advance, or notified of the changes after the fact.
Previous articles on the same topic:
Are doctors redefining life and death?
The Dead Donor Rule and Organ Transplantation.
Link to a previous article by the same author in the National Post.