Organ Transplantation Flashcards
Why do we need law to regulate OT?
To regulate training and fitness to practice
Law of negligence
Private health care
Consent
1st Stage of Law
1952 Corneal Grafting Act - using cornea of a dead person.
Was no prior existing law/duties relating to dead bodies. Created law to keep up/facilitate use of technology
Law on dead bodies prior to Acts
Bury or burn them, because were a health hazard
2nd Stage of law
Human Tissue Act 1961 - general rules relating to removing organs from DEAD bodies
Churchill Clinic Scandal
Transplants were performed for wealthy patients who were paying large amounts of money. Get kidneys from developing countries and bring them to England, pay them little and send them back.
Q’s surrounding consent to kidney removal, and medical ethics - no post op care, paid little - exploitation
Alder Hey & Bristol Royal Infirmary Scandal
2 hospitals found to be removing the organs of children who had died in hospital and storing without consent of parents.
Crisis for NHS: 1) undermined assumption of patients that docs acting in best interest and could be trusted. 2) cast bad light in removal of organs - lead to public turning away from transplant programme
Human Tissue Act 2004 - 3rd Stage
Removal, use and storage of human tissue
Live & dead donors
Criminalises some activities
Est human tissue authority & code of conduct
What types of interest does regulation try to balance?
Protection of life, autonomy, exploitation, patient safety, what happens to the body after death, efficient use of med resources, relatives thoughts & cultures
Difference between brain death and donation after a cardiac death
Brain death → irreversible loss of all brain function, organs removed while heart is kept beating artificially.
Donation after cardiac death → irreversible loss of circulatory function, organs removed as soon as possible (75 secs - 5 mins)
Is there ownership of the corpse?
No ownership of corpse/power to determine fate of one’s body after death. No property rights.
Moore v Regents of uni of California (persuasive)
Held: M had no property rights over cell-line (worth £15bn) developed from cells removed from his spleen, following removal for treatment of leukaemia.
Dobson v Tyneside HA
Family of deceases sought return of the brain to support negligence claim against HA arising from deceased’s death.
Held: no ownership of the brain. Executors have limited right to possess corpse for purpose of burial/cremation. Prop rights in body parts could arise where work has been done on it. Removal of brain lawful for autopsy - hospital had right to dispose of it.
[Become prop of person who had applied skill]
R v Kelly
Hospital technician charged with theft after supply body parts to artist for incorporation in artistic works. Held: parts of a corpse are capable of being property if they have acquired diff attributes by the application of skill, such as dissection or preservation techniques for exhibition or teaching purposes.
No prop in the unmodified property. To deny body as property - suggests no one can ‘steal’ it - body does have some value which can be misappropriated
Death - difference between heart beating and non-heart beating
Brain dead - heart beating - ventilated
Cardio vascular death - non-ventilated - non-heart beating
Evans v Amicus Healthcare
Mr E didn’t want to be father, said if you have donated sperm/eggs, you retain control over them. You consent to use. Idea of consent and control at odds with ‘owning’ body
Yearworth v Bristol NHS Trust
Frozen sperm, freezer defrosted. Sperm/eggs donated couldn’t be used. Claim in negligence as freezer was faulty, should have been recognised. Loss of chance to be fathers. Were successful. Even though body isn’t property, was a product - been damages so could get compensation
Re A
Brain death is death for legal purposes
Parents (accused of assault on infant child) sought declaration that the ventilator could not be switched off. Docs argued his brain was stem dead - therefore he was dead. CA held: brain death is death for legal purposes
HTA 2004 - ‘appropriate consent’
Need ‘appropriate consent’ and materials need to be approved for a ‘schedule 1 purpose’.
Legal to remove, store and use relevant material from a live and dead donor.
→ Relevant material is all except gametes, embryos created OUTSIDE the body, incl hair and nails from living person
HTA 2004 - consent
Must be for material to be stored/used for a particular purpose; positive consent required - not just failure to object → voluntary, informed, mental capacity
Living donor - competent adult for consent
Dead donor - donor before death, applicable representation of from person in closest qualifying relationship
S27 HTA 2004
Qualifying consent, just need 1 person to say yes to do transplant
Fail to obtain appropriate consent defence
Defence of reasonable belief
Should we treat the dead? → Heart beating donors
Fears about diagnosis of death
Feelings of relatives
Ethical issues - pro-longing life
Elective ventilation
Practice for purpose of transplant than therapy
Illegal in UK
Where you treat someone as a potential donor when alive, without consent (too sick) to facilitate harvesting organs.
Not in P’s best interest?
Unlawful → battery?
Should we treat dead? → Non-heart beating donors
Heart has stopped, death diagnosed on cardio-respiratory criteria
Risk of rapid decay
Cold perfusion of organs to maintain viability
Lack of legal clarity around how a P close to death can be treated differently to facilitate donation
NHBD requires consideration of donation prior to death. Unconscious patient ‘treated in best interest’ - Bland
Best interest not confined to what is immediately clinically beneficial, informed by patients values - MCA 05 s4
