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.