Assisted Suicide Back in the Courts

I have been prompted to dust off my blog by a story which appeared in the press yesterday about 'Martin'. Martin (not his real name) is a 46 year old male who, as the result of a brainstem stroke, has been left almost completely paralysed and can only communicate through a computer.

Martin's current life is in stark contrast to his life pre-stroke, which was described as being active and highly sociable. Such is his quality of life that Martin has expressed a desire to die. Because of his physical condition, however, he is unable to end his own life. Neither is he capable of making his own way to Switzerland to use the services of Dignitas. Martin's only hope is to seek assistance from somebody who is willing to assist him to die. And therein lies the problem.

In England and Wales it is not an offence to commit suicide. Nor is it an offence to attempt to commit suicide. It is, however, an offence to assist or encourage an individual to commit suicide with the intention that said individual should go on to commit or attempt to commit suicide (s2(1) Suicide Act 1961). Such is the current state of the law, that merely providing assistance and/or encouragement is enough. Thus conviction can follow even though no one was ever actually assisted or encouraged to commit suicide or attempt to commit suicide.

Clearly this puts Martin in an impossible position; a position that was shared by Dianne Pretty, and a position which Debbie Purdy sought to avoid. Martin cannot end his life without assistance from a third party. However, whilst no criminal sanctions would follow if Martin took his own life, anybody who assists Martin faces 14 years imprisonment.

This is, however, where things start to get interesting, because conviction can only flow from prosecution. There is no guarantee, however, that a person who has assisted another to die will be prosecuted. This is because of s.2(4) Suicide Act 1961 which states that there can be no prosecution for an offence under s.2(1) without the Director of Public Prosecution's consent.

Prior to the House of Lords' decision in Pretty, back in 2009, the Director of Public Prosecution's decision whether to prosecute a defendant or not was guided by the provisions of the Code for Crown Prosecutors. This Code created a two-stage test. A prosecution would only follow where the prosecutor was satisfied beyond reasonable doubt 1) that there was sufficient evidence to secure a realistic prospect of conviction; and 2) that prosecution would be in the public interest.

It is the second limb of that test that provoked the greatest controversy and prompted Debbie Purdy to seek judicial intervention. Unlike Dianne Pretty who was seeking assurance from the courts that her husband would not be prosecuted under the old s.2(1) Suicide Act 1961 if he assisted her death, Debbie Purdy was merely seeking clarification about the circumstances in which her husband might be prosecuted so he could make an informed decision about whether to play a role in assisting Debbie to die or not.

The House of Lords in this case appear to have concerned themselves with two key questions:

1. 
   
   Does s.2(1) Suicide Act 1961 cover those situations where a person in England and Wales provides assistance to another to travel outside this jurisdiction to commit suicide; and
   


2. 
   
   Should the Director of Public Prosecutions be compelled to produce guidance outlining the situations in which he would authorise a prosecution under s.2(1) Suicide Act 1961.
   

It is the second question, however, that is of greatest relevance here. The problem Purdy highlighted was this. To date over a hundred families have travelled with their loved ones to Switzerland to assist them on their route to Dignitas. Whilst such conduct clearly fell within the remit of s.2(1), not one of those families had been prosecuted. The closest we had come was the arrest of the family of Daniel James upon their return from Switzerland. The DPP subsequently announced, however, that a prosecution would not be in the public interest.

The Daniel James case was unusual in that it was the first time the DPP had expressly stated his reasoning for deciding not to prosecute in such a case, however, his decision was based on assessment in accordance with Code of Crown Prosecutors. What Mrs Purdy wanted from the DPP, on the other hand, was a statement which explained what factors the DPP would take into account when deciding whether or not to charge a defendant under the Suicide Act 1961 specifically.

Without going into the reasoning underpinning the decision, the House of Lords agreed that the DPP should be required to publish offence specific guidance outlining how he would make a decision whether or not to prosecute an individual under s.2(1) Suicide Act 1961. This guidance was published in February 2010 following a public consultation exercise which resulted in responses from 4,710 individuals and organisations from England and Wales.

Crucially, the guidelines contain a list of factors that the DPP will consider when deciding whether or not it is in the public interest to prosecute under s.2(1). For present purposes, however, the key factor of note is that evidence that 'the suspect was acting in his or her capacity as a medical doctor, nurse, other healthcare professional, a professional carer (whether for payment or not), or as a person in authority, such as a prison officer, and the victim was in his or her care' is to be treated as a factor in favour of prosecution.

Furthermore, evidence that 'the suspect was paid by the victim or those close to the victim for his or her encouragement or assistance' is also to be viewed as a factor in favour of prosecution. Which brings us, neatly, back to Martin's case.

Martin is unable to persuade any of family or friends to assist him to die. His only option is to seek assistance from the medical profession. He is aware, however, that if the medical team responsible for his care assist him to die, they would face the prospect of prosecution. Consequently, he is taking his case to the courts, which is where things get really interesting because Martin's case, it seems, will unfold in two stages.

Stage 1: Martin is heading to the courts to seek a declaration that any lawyers, physicians or psychiatrists that help him prepare for Stage 2 of his case will not face prosecution under s.2(1).

Stage 2: If the courts grant such a declaration, Martin will seek a declaration that it is lawful either a) to obtain assistance to travel to Switzerland to die at Dignitas; or b) that it will be lawful for him to die by refusing food and water, subject to the proviso that he may be provided with medical assistance to make him comfortable.

The press have, rightly in my opinion, gotten really excited about this, but, arguably, they have done so for all the wrong reasons. This case, as the press seem to suggest, is not going to result in a change to law governing assisted dying in England and Wales. Not directly at least. The courts have consistently made it clear that such a move is the sole preserve of Parliament. What this case is going to do, however, is promote closer scrutiny of the DPP's guidelines, and hopefully offer us further insight into how they operate.

Certainly, in relation to stage 1 of Martin's claim, I cannot envisage that it was ever the DPP's intention that the guidelines should be applied in such a way as to result in the prosecution of individuals who seek to make informed choices about the end of life. That is not to say, however, that there is not great value in the DPP coming out and stating publicly that such conduct is lawful.

The other thing I expect the case will do is to call into question the DPP's role in prosecutions under s.2(1). In a way s.2(4) makes sense. It closes the door to the possibility of private prosecutions. In other ways, however, it creates an extra layer of uncertainty in an area of law where, arguably, an individual's legal position needs to be at its clearest.

Either way, you can expect further posts on Martin's case as the story develops.

Organ Donor Error Pompts Calls for Review

A big story has broken in the news today (Sunday 11th May 2010) surrounding the UK organ donor register. Initial reports suggest that up to 800,000 people registered on the UK donor register may have had their preferences about which organs they wished to donate recorded incorrectly. Apparently only people in Scotland, England and Wales who had registered as donors using their driving licence application form were potentially affected.

As a direct result of this confusion the UK tranplant authority has confirmed 21 cases in the last 6 years in which the wrong organs may have been taken from donors (although they acknowledge there may be further, as yet unidentified, cases). The authority also confirms that although the families of the deceased donors involved had given their consent to the removal of, and use of, their loved one's organs the donation may not actually have been in accordance with the deceased's actual preferences. This is hugely significant from a legal perspective.

Section 1 of the Human Tissue Act 2004, which needs to be read in conjunction with Schedule 1 of that Act, makes it clear that the removal of an organ and its use in a transplant will only be lawful if 'appropriate consent' has been obtained. Where the organ donor is deceased the fact that the deceased registered on the organ donor register prior to their death is deemed to be acceptable.

Furthermore, s.3(6) Human Tissue Act 2004 makes it clear that the fact the deceased has given consent to the use of their organs is determinative of the matter. Nevertheless it is good practice to consult the deceased's family, advise them that their loved one has consented to the use of their organs in this way and seek the family's acquiescence in the decision. The family does not, however, have any legal right to veto the deceased's decision although the transplant team retain the discretion not to use the deceased's organs if they believe it would cause unnecessary distress. this much is made clear by the Human Tissue Authority's Code of Practice governing Organ Donation.

In this case it appears that organs may have been removed and used without appropriate consent. Yes the deceased were all on the organ donor register but the suggestion is that organs may have been removed and used in a way which did not accord with the deceased's consent (e.g. the deceased may have consented solely to the removal and use of their kidneys, but actually also ended up having their heart removed and used in a transplant). This poses two potential difficulties for all involved here:

1. The lack of appropriate consent may mean there has been a breach of s.1 Human Tissue Act 2004 and thus a criminal offence under s.5(1) Human Tissue Act 2004; and
2. The lack of a valid consent may also amount to the tort of battery.

As well as the legal ramifications associated with this story, there are also practical ramifications for us to think about.

Understandably there is considerable concern that this news will have a detrimental impact on public confidence in both organ donation generally and registering on the organ donor register specifically. Given that the available figures all point to the fact that the the demands for donor organs far outstrip demand, this story could not be much worse for the UK transplant authority.

Ground-breaking Development in Organ Transplants

A number of the newspapers this morning (Saturday 20th March 2010) are reporting on groundbreaking surgery carried out by British and Italian surgeons on a ten-year-old boy at St Ormonde's Street Hospital.

In the nine hour procedure a donor windpipe was transplanted into the boy (who has not been named). To decrease the chance of the new windpipe being rejected, however, the windpipe was stripped down to its collagen scaffolding and seeded with stem cells (taken from a sample of bone marrow extracted from the child's hip) which, it is hoped, will turn into specialised cells which form the inside and outside of the windpipe. Once transplanted into the child the expectation was then that his body would act as a 'bio-reactor' to help the windpipe grow into a fully functioning organ.

One of the major problems associated with organ transplants is, of course, the possibility of the donor organ being rejected by the recipient's body. To counter this problem the patient is put onto a life long regime of immuno-suppresant drugs designed to stop the recipient's body from attacking the 'foreign' organ. The downside of this is that the recipient's weakened immune system places them at a greater risk from infections and other life-threatening illnesses such as cancer.

Developments such as this are surely of massive significance for anyone who finds themselves on the transplant waiting list in the future. It is well known that the number of available donor organs currently falls far short of the numbers needed. Furthermore, it is also known that this problem is exacerbated by the fact that the likely success of any transplant also hinges upon how close a match the donor and recipient are in terms of blood type and tissue type. Consequently the prospect of being able to use the recipient's stem cells as a potential means of getting around such issues is surely an exciting one indeed.

No Prosecution Following the Death of Sir Edward Downes

In July 2009 it was reported that reknowned conductor Sir Edward Downes and his wife, Lady Joan Downes, had ended their lives with the assistance of Dignitas. The reports at the time noted that Detectives from Greenwich CID were investigating the circumstances surrounding the deaths of Sir Edward and Lady Joan Downes, specifically whether their children had assisted their parents to commit suicide.

The Director of Public Prosecutions announced today (Friday 19th March 2010) that after a careful review of all the evidence there was insufficient evidence to support a charge against the Downes' daughter, Ms Boudicca Downes. Furthermore, whilst there was sufficient evidence to support a charge against the Downes' son, Mr Caractacus Downes, of an offence under s.2(1) Suicide Act 1961, it was felt that it would not be in the public interest to prosecute him. Mr Caractacus Downes had booked a hotel room for his parents' use before they attended the Dignitas clinic. He also accompanied them from England to Switzerland.

The significance of this case is that is reportedly the first case where the public interest factors outlined in the Crown Prosecution Services 'Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide' (2010) have been applied. The DPP has kindly identified the factors that were taken into account when deciding whether it was in the public interest to prosecute in this case or not.

Factors tending in favour of prosecution in this case were identified as follows:

• It is clear that both Sir Edward and Lady Joan Downes were both able to undertake by themselves the actions which Mr Caractacus Downes undertook on their behalf.
• The evidence suggests that Mr Caractacus Downes was motivated entirely by compassion - even though there was also evidence which shows that he gained some financial benefit under the terms of his deceased parents' wills. On this point the Director of Public Prosecutions comments: "The relationship between compassion and financial gain is considered in paragraph 44 of the Policy. There, it is recognised that a suspect may gain some benefit from the resultant suicide of the victims. The Policy states that the critical element to consider is the motive behind the suspect's act. If it is shown that compassion was the only driving force behind his actions, the fact that the suspect may gain some benefit will not usually be treated as a factor tending in favour of prosecution."

Factors tending against prosecution identified in this case were as follows:

• It is clear that both Sir Edward and Lady Joan Downes had each reached a voluntary, clear, settled and informed decision to commit suicide.

Ultimately it was decided that the factors tending against prosecution outweighed the factors tending in favour of prosecution. This is consistent with the observation in the Crown Prosecution Service's 'Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide' that "Assessing the public interest is not simply a matter of adding up the number of factors on each side and seeing which side has the greater number ... It is quite possible that one factor alone may outweigh a number of other factors which tend in the opposite direction."

NB: It should be noted that since the Downes committed suicide prior to 1st February 2010, the Crown Prosecution Service would have been considering whether there was sufficient evidence to convict their children of the offence of aiding, abetting, counselling or procuring a suicide contrary to the 'old' s.2(1) Suicide Act 1961. That has since been replaced follwoing the enactment of s.59 Coroners and Justice Bill 2009. The 'new' s.2(1) offence (assisting or encouraging suicide) will, however, only apply to assisted suicides which occur after the 31st March 2010.

Back once again ...!!!

Despite my best intentions there was no blog entry last week (and hopefully you'll all turn a blind eye to the fact this one is late).

Let us start with a story in this week's Guardian.

Medical Intervention at the End of Life
This week the Guardian reported that around a third of doctors say they have given drugs to terminally ill patients, or withdrawn treatment from them, in the knowledge (or intending) that their actions would shorten their patient's life (Boseley, S. 'Third of Doctors Act to Shorten Lives of Dying', guardian.co.uk, Friday 23rd October 2009 http://www.guardian.co.uk/society/2009/oct/23/assisted-suicide-doctors-terminally-ill).

This report follows the publication of the findings of Professor Clive Seale of Queen Mary, University of London who carried out this research. Professor Seale discovered that in 211 of the cases they investigated (7.4% of the total number) doctors say they stopped treatment or gave drugs to help speed up their patient's death. In 825 cases (28.9%) doctors made a decision about the patient's treatment that they knew would probably or certainly hasten their patient's death.

This is by no means a complete summary of Professor Seale's findings (nor is it even a complete summary of Sarah Boseley's report!) but the figures I have just presented raise huge legal and ethical issues.

From a legal perspective the problem is clear, if an individual commits an unlawful act which is specifically designed to cause death or serious injury they have committed the offence of murder. Whilst it is true that the doctrine of double effect can apply in some circumstances to 'excuse' conduct which results in a death, this would not seem to apply in the cases reported upon by Professor Seale.

The doctrine of double effect states that providing the primary motive underpinning an individual's action is a good motive, the individual's actions can be excused if they also incidentally result in a 'bad' result. Thus, in a medical context, if a doctor administers a painkiller at a level which he knows carries with it an additional risk of killing the patient, he will not be liable for their subsequent death providing the primary motivation underpinning the injection was to alleviate the patient's pain and NOT to end their patient's life. In the cases reported upon by Professor Seale the doctors questioned freely admit that their actions were designed to end their patient's life.

When we examine the actions of the doctors in these terms we can see that these doctors are in breach of the law, which brings us to the second issue, whether physician assisted suicide should be illegal?

Professor Seale's study also noted that 1 in 10 patient's treated by those surveyed had requested assistance from their doctor to end their life, in 2006 a Yougov poll commissioned by the group 'Dignity in Dying' suggested that 76% of people surveyed were in favour of physician assisted suicide (so long as adequate safeguards were in place) and a survey carried out by the Times revealed that 95% of people support the right of people with a terminal illness to be helped to die (although that figure dropped to 48% in the case of patients who have a severe physical disability) - (Bennett, R. & Rose, D. 'Public Supports Assisted Suicide for Terminally Ill People', Timesonline, http://www.timesonline.co.uk/tol/life_and_style/health/article6726928.ece).

All these figures seem to point towards a groundswell in public support for moves to legalise physician assisted suicide, yet every attempt to introduce legislation in this field has, so far, been unsuccessful, but for how much longer?

Access to Healthcare
This week's health stories have also given us the opportunity to touch upon a topic that we have not yet covered in this blog - namely access to healthcare resources.

On 21st October the Guardian reported on the story of the National Institute for Health and Clinicial Excellence's decision to withhold approval for Tyverb, a drug which can give women with advanced breast cancer extra weeks or months of life (Boseley, S. 'Women Denied Cancer Drug that Could Extend Life', Guardian online, 21st October http://www.guardian.co.uk/lifeandstyle/2009/oct/21/women-denied-cancer-drug).

To understand the significance of this decision we need to briefly imapct of NICE's decisions on the way health care resources are dstributed in the United Kingdom.

The simple truth is that there is only a limited amount of money available to fund the healthcare needs of the nation and so careful thought needs to be given to how those funds are to be spread around, which is where NICE comes in. NICE is an organisation, created by the government, tasked with producing guidance in three main areas (see http://www.nice.org.uk/aboutnice/):

1. Public health - guidance on the promotion of good health and the prevention of ill health for those working in the NHS, local authorities and the wider public and voluntary sector
2. Health technologies - guidance on the use of new and existing medicines, treatments and procedures within the NHS
3. Clinical practice - guidance on the appropriate treatment and care of people with specific diseases and conditions within the NHS

When it was first set up NICE was designed to combat the so called 'postcode lottery'. NICE attempts to establish uniform standards of healthcare across the nation by publishing codes of best practice. NICE also evaluate medications with a view to determining whether they are sufficiently 'cost effective' to warrant them being provided to patients on the National Health Service. To assist them in this task NICE make reference to Quality Adjusted Life Years (QALYs).

A detailed examination of what QALYs are and how they assist NICE to make decisions about which treatments to approve is beyond the scope of this post. Suffice to say that the QALY calculation results in a figure representing the cost per Quality Adjusted Life Year of a particular course of treatment. This figure can then be used in one of two ways. It can be compared with the cost per QALY of alternative types of treatment for this patient (relatively uncontroversial), or it can be compared with the cost per QALY of treating alternative patients (much more controversial). In this way the QALY calculation can be used to determine which treatments to fund, and/or which patients to treat. Of course the converse is also true and so the QALY calculation can also be used as a tool to help decide which treatments not to provide and/or which patients not to treat. In this way NICE has a definite role to play in limiting access to the types of care provided free of charge on the National Health Service.

The decision in this case is particularly controversial. NICE had already rejected Tyverb on aprevious occasion on the grounds that it was too expensive for the benefits it provided from a QALY perspective. Nevertheless the manufacturers of the drug, GlaxoSmithKline (GSK), asked NICE to reappraise it in light of new guidance published earlier this year governing end of life treatments.

NICE has a ceiling on how much per QALY it is willing to spend after which it will no longer approve funding for the treatment (according to the Guardian the figure currently sits at the £30,000 mark). The guidance in question, published by NICE, advised that this ceiling should be raised when considering cancer treatment at the end of life. However, NICE did not actually set out what the new ceiling should be in such cases.

It would be nice to think that we have unrestricted access to health care as and when we need, but nothing could be further from the truth. It seems as if there is a price the government is not willing to pay to keep the nation's health from ticking over. Nevertheless, we have to accept that the government are faced with an unenviable task. Difficult decisions have to be made about how the available resources are to be distributed. If we are unhappy with the current methods for deciding how those funds get spent, what are the alternatives?

An Unlimited Supply of 'Spare Parts'?
In light of the previous story and the underlying message about the limited availability of resources to fund treatment of the UK's population this final choice of story seems very appropriate.

On 20th October 2009 the Guardian reported that advances in medical technology would soon allow us to combat some of the physical deterioration associated with old age (Boseley, S. 'Replacement Body Parts Offer Active Old Age for Future Pensioners' Guardian Online, 20th October 2009 http://www.guardian.co.uk/society/2009/oct/20/scientists-promise-body-parts).

Improvements in medical technology have meant that patients in modern times are now surviving conditions that decades ago would have proven fatal, and we can now keep patient's 'alive' on life support machines seemingly in perpetuity (a point made by the House of Lords in Airedale NHS Trust v Bland). Furthermore, recent reports have suggested that babies born from 2009 onwards stand a much greater chance of reaching the ripe old age of 100 (Anon 'Half of Babies 'Will Live to 100'' BBC News Online http://news.bbc.co.uk/1/hi/health/8284574.stm). The problem is, of course, that our bodies are not designed to go on forever, the ever increasing incidences of dementia in our population is a testament to this fact.

Nevertheless, the University of Leeds has received £50 million of funding to co-ordinate a project which will focus on developing artifical joints, as well as creating skin, cartlidge and heart valves which will never be rejected by transplant patients. The goal is, ultimately, to try and give those over the age of 50 a further 50 years of active living.

This incredible sounding development raises questions about how far we are prepared to allow technology to develop? At what point do we step in and say 'enough is enough'? Do we really want to live for ever? Then we have the inevitable questions about how we are going to pay for the treatment costs of our ever ageing population? We have enough problems meeting existing requirements. Still, at least if we have a population which is capable of remaining active for longer, perhaps we'll be able to work for longer as well!?!

The Weekly Update - 9th October 2009

Welcome to this week's installment of the Medical Law and Ethics Blog. In this post we will be considering organ donation as well as clinical negligence. A brief announcement the Human Fertilisation and Embryology Act 2008 concludes proceedings. All in all, a real mixed bag.

Organ Donation

Both 'Telegraph.co.uk' and 'news.bbc.co.uk' ran a story this week highlighting an increase in the number of Britons who have signed onto the organ donor register (see Anon 'Organs Still Short as Donors Rise', news.bbc.co.uk, 7th October 2009 http://news.bbc.co.uk/1/hi/health/8295764.stm and Smith, R. 'One in Four Britons on Organ Donor Register', Telegraph.co.uk, 8th October 2009 http://www.telegraph.co.uk/health/healthnews/6268495/One-in-four-Britons-on-organ-donor-register.html).

Official figures released by the Organ Donation Taskforce show that more than one in four Briton's is now on the organ donor register, a rise of 6.5% from last year's figures. This, in turn, has led to an increase in the number of transplants carried out in the same period. However, all is not rosy.

It is reported that the United Kingdom's donor rate lags behind that of much of Europe. Part of the issue relates to the system of consent underpinning any decision to remove organs from a deceased individual for transplantation, as governed by the provisions of the Human Tissue Act 2004.

If the individual has already clearly expressed their wish to consent to the withdrawal of their organs, and there is a clear record of the deceased's wishes then the family of the deceased do not have the legal power to veto or overrule the deceased's decision. Of course, this is an issue that needs to be dealt with very sensitively.

If there is no clear record of the deceased's wishes, and the deceased is a potential donor, then it falls to trained healthcare professionals to approach the deceased's partner/family/close friends to raise the issue of donation and ascertain whether there is anyone within that group who is willing to authorise the removal of organs for transplantation who has the power to do so under the provisions of the Human Tissue Act 2004.

The Human Tissue Act 2004 identifies two classes of individual who can give a valid consent to the retrieval of organs for the purposes of donation. First we have 'nominated representatives'. These are individuals who were nominated by the deceased as someone who has the power to represent them after their death and give a consent on their behalf. If there is more than one 'nominated representative' in existence then consent only needs to be obtained from one of them. Crucially, if a nominated representative exists, and they have consented to the retrieval of the deceased's organs for transplantation, this consent cannot be overridden by family members or anyone who falls within the second category, i.e. persons who are in a qualifying relationship.

If there is no evidence that the deceased had previously consented to donate their organs, or if there is no 'nominated representative', or if there is a 'nominated representative' but it is impractical to make contact with the 'nominated representative' (e.g. because time is really of the issue if the organs are to remain fit for transplant'), then (and only then) consent to the retrieval of the deceased's organs for donation can be given by anyone who is in a 'qualifying relationship ' with the deceased. Those who may be in a 'qualifying relationship' with the deceased are:

1. The spouse or partner (including civil or same sex partner);
2. Parent or child (the child can be of any age and can be a natural child or an adopted child);
3. Brother or sister;
4. Grandparent or grandchild;
5. Niece or nephew;
6. Stepfather or stepmother;
7. Half-brother or half-sister;
8. Friend of long standing.

This is a hierarchical list. Consent only needs to be obtained from one of the parties on the list, however, it should be obtained from the person highest up the list (e.g. if the deceased has no partner and is not survived by their parents or a child, then consent can be given by a sibling). Crucially, if consent is sought from the highest ranking person in the list and consent is refused, consent cannot subsequently be sought from someone lower down in the list (e.g. in the example we have just considered, if the deceased's brother refuses to consent to the retrieval of the deceased's organs for donation, it is irrelevant that the deceased's nephew is preparared to give consent).

There are just a few more points to be made in relation to the 'qualifying relationship' hierarchy. It is possible to omit certain persons from the list in some circumstances, namely if:

1. They do not wish to deal with the issue of consent;
2. They are not able to deal with the issue (perhaps because they lack capacity); or
3. It's not practical to get into contact with the individual within the time available if the organs are to remain suitable for donation.

So, to give a different example, if the hospital's transplant coordinator tries to contact the deceased's wife, but despite their best efforts the wife cannot be contacted and time is running out, consent can be given by the deceased's children. But what if the deceased has more than one child? The rules on this are clear, if there are multiple persons within a category who might be deemed to be in a 'qualifying relationship', consent is only needed from one of them. Thus, if the deceased in the example just given had three children, the transplant coordinator would only need to obtain consent from one of the children.

For more information on the law governing the retrieval of organs for transplantation (from both live and deceased donors), access a copy of the Human Tissue Act 2004. You may also find it helpful to access the Code of Practice issued by the Human Transplant Authority in order to help those affected by the provisions of the Act understand the steps they need to take to remain compliant with the law when dealing with potential donors (Human Tissue Authority 'Code of Practice 2 - Donation of Solid Organs for Transplant' http://www.hta.gov.uk/legislationpoliciesandcodesofpractice/codesofpractice/code2donationoforgans.cfm)

So, where the deceased has made their decision to consent to the removal of their organs perfectly clear there is little problem, but where the deceased has failed to leave clear evidence of their intentions there is a distinct possibility that the 'nominated representative' or the person in a 'qualifying relationship' will refuse to consent to such a removal on the patient's behalf. Indeed, organs are only retrieved from a third of potential donors owing to the great tendency of those in a position to give such a consent to refuse it.

It is within this context that calls have been made to adopt a system of presumed consent. In simple terms under such a system we would all be presumed to have consented to the retrieval of suitable organs from our bodies upon our death. In order to rebut such a presumption we would have to take positive action and opt out of becoming an organ donor (at present we are required to opt in, a small but significant distinction). Such a system was advocated by the Chief Medical Officer, Sir Liam Donaldson, in 2006 in his annual report (Donaldson, L. 'On the State of Public Health: Annual Report of the Chief Medical Officer 2006' (London: TSO, 2006) http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/AnnualReports/DH_076817) in a chapter called 'Organ Donations: The Waiting Game'. More recently the Chairman of the British Medical Association's Ethics Committee, Dr Tony Calland, has also called for a 'serious debate' about adopting a system of presumed consent in relation to organ donation (BMA Press Release 'Increase in Donors is Good News, Say Doctors, But More Needs to Be Done', 8th October 2009 http://web2.bma.org.uk/pressrel.nsf/wlu/SGOY-7WLKCH?OpenDocument&vw=wfmms).

Why not take a moment to comment on this post and share your views on whether we should look to adopt an opt-out system of consent?

Why Hospital is a Dangerous Place to Be

I have shamelessly pinched this headline from a story which appeared in Independent this week and was also covered in 'The Times Online' and 'news.bbc.co.uk'. All three stories picked up on figures published by the National Patient Safety Authority (NPSA) detailing the number of patient safety incidents and near misses across the National Health Service in the period between 1st October 2008 and 31st March 2009 (the full set of reports are available online at http://www.nrls.npsa.nhs.uk/patient-safety-data/organisation-patient-safety-incident-reports/).

The figures show that there were a total of 459,500 patient safety incidents in the report period - the highest figure since records began - a rise of 12% on the previous year. Of course it should be noted that the reporting scheme run by the NPSA is a voluntary scheme, thus the rise in the number of mistakes reported to the NPSA year on year can partly be explained by the fact that more and more trusts on board (currently 382 of the 392 trusts report to the NPSA). Similarly it is recognised that those trusts with the highest level of incidents tend, irnonically to be the safest. This can be explained on the basis that these trusts have established a culture of openness in which mistakes are reported and lessons are learnt. Nevertheless the breakdown of the figures show:

• There was no harm to the patient in relation to 303,016 patient safety incidents;
• 122,246 of the patient safety incidents resulted in low harm to the patient;
• Moderate harm was suffered by 28,521 patients involved in a safety incident; and
• 5,717 of the patient safety incidents resulted in death or serious harm (e.g. permanent injury or disability).
• As reported in Anon 'NHS Mistakes Harming Thousands', news.bbc.co.uk, 7th October 2009 http://news.bbc.co.uk/1/hi/health/8295417.stm and Rose, D. 'Errors by NHS Staff Led to 5,700 deaths in Six Months, Report Says', Times Online, 8th October 2009 http://www.timesonline.co.uk/tol/life_and_style/health/article6865050.ece.

Furthermore:

• The vast majority of the safety incidents (32.8%) were accidents involving patients (e.g. where the patient slipped or fell);
• 10.1% of the patient safety incidents were errors or near misses with treatments or procedures (e.g. whilst inserting a catheter); and
• Medication errors accounted for 9.4% of the patient safety incidents.
• As reported in Rose, D. 'Errors by NHS Staff Led to 5,700 deaths in Six Months, Report Says', Times Online, 8th October 2009 http://www.timesonline.co.uk/tol/life_and_style/health/article6865050.ece and Laurance, J. 'Why Hospital is a Dangerous Place to Be', The Independent, 7th October 2009 http://www.independent.co.uk/life-style/health-and-families/health-news/why-hospital-is-a-dangerous-place-to-be-1799083.html.

Of course there is nothing to say that all of these incidents can be attributed to negligence, we must be prepared to accept the fact that every once in a while harm will materialise despite the best efforts of those involved in caring for the patient. What worries me about these fgures, however, is that for all the talk of 'learning from mistakes' and 'ensuring these types of error do not occur again' it always seems to be the same categories of error that are the most prevalent. Indeed it was only in 2007 that the NPSA published the report 'Slips, Trips and Falls' (accessbile at http://www.nrls.npsa.nhs.uk/resources/?entryid45=59821) designed to improve understanding of the scale of the problem in the NHS, the impact the large volume of falls had on both the patient and the NHS and the sorts of steps that might be taken to help reduce the number of incidences of patient slips, trips and falls.

This brings us back to the same old question, is the NHS truly capable of learning from it's mistakes? Answers on a postcard to the usual address ...

... and Finally, the Human Fertilisation and Embryology Act 2008

This technically counts as old news (it should have been in last week's blog). I just wanted to make you aware (in case you were not already) that the Human Fertilisation and Embryology Act 2008 came into force on the 1st October 2008. Expect further discussion about the contents of the Act in the near(ish) future.