In this paper, we examine the lawfulness of a proposal to provide elective ventilation to incompetent patients who are potential organ donors. Under the current legal framework, this depends on whether the best interests test could be satisfied. It might be argued that, because the Mental Capacity Act 2005 (UK) (and the common law) makes it clear that the best interests test is not confined to the patient's clinical interests, but extends to include the individual's own values, wishes and beliefs, (...) the proposal will be in the patient's best interests. We reject this claim. We argue that, as things currently stand, the proposal could not lawfully be justified as a blanket proposition by reference to the best interests test. Accordingly, a modification of the law would be necessary to render the proposal lawful. We conclude with a suggestion about how that could be achieved. (shrink)

Elective ventilation (EV) is ventilation—not to save a patient's life, but with the expectation that s/he will die—in the hope that organs can be retrieved in the best possible state. The arguments for doing such a thing rest on the value of the lives being saved by the donated organs, maximally honouring the donor's wishes where the patient can be reasonably thought to wish to donate, and a general principle in favour of organ donation where possible as an expression of (...) human solidarity. Arguments against include difficulties surrounding the patient's consent to donation (including the risk of them surviving in an unacceptably bad state), the possibility of changing our perception of organ donation and care in dying, and the moral distress potentially caused to intensive care unit (ICU) staff involved in EV. EV can occur before or after the patient is declared dead and it is EV before the declaration of death (EVb) that occasions the ethical worries. I argue that when we acknowledge the tragedy involved, attend sensitively to the grief proper to human death, and ensure that we are not working in an ethical and legal climate that increases the likelihood of inadvertent survival in an unacceptably bad state, EVb is ethically defensible. (shrink)

A deficit in the number of organs available for transplantation persists even with an increase in donation rates. One possible choice of donor for organs that appears under-referred and/or unaccepted is patients with primary brain tumours. In spite of advances in the treatment of high-grade primary central nervous system (CNS) tumours, the prognosis remains dire. A working group on organs from donors with primary CNS tumours showed that the risk of transmission is small and outweighs the benefits of waiting for (...) a normal donor, in survival and organ life-years, with caveats. This paper explores the possibility that, if information on organ donation were made available to patients and their families with knowledge of their inevitable fate, perhaps some will choose to donate. It would be explained that to achieve this, elective ventilation would be performed in their final moments. This would obviate the consent question because of an advance statement. It is accepted that these are sensitive matters and there will be logistic issues. This will need discussion with the public and other professionals, but it could increase the number of donors and can be extrapolated to encompass other primary CNS tumours. (shrink)

This paper examines questions concerning elective ventilation, contextualised within English law and policy. It presents the general debate with reference both to the Exeter Protocol on elective ventilation, and the considerable developments in legal principle since the time that that protocol was declared to be unlawful. I distinguish different aspects of what might be labelled elective ventilation policies under the following four headings: ‘basic elective ventilation’; ‘epistemically complex elective ventilation’; ‘practically complex elective ventilation’; and ‘epistemically and practically complex elective ventilation’. (...) I give a legal analysis of each. In concluding remarks on their potential practical viability, I emphasise the importance not just of ascertaining the legal and ethical acceptability of these and other forms of elective ventilation, but also of assessing their professional and political acceptability. This importance relates both to the successful implementation of the individual practices, and to guarding against possible harmful effects in the wider efforts to increase the rates of posthumous organ donation. (shrink)

This essay comments on the British Medical Association's recent suggestion that protocols for Elective Ventilation (EV) might be revived in order to increase the number of viable organs available for transplant. I suggest that the proposed revival results, at least in part, from developments in the contemporary political landscape, notably the decreasing likelihood of an opt-out system for the UK's Organ Donor Register. I go on to suggest that EV is unavoidably situated within complex debates surrounding the epistemology and ontology (...) of death. Such questions cannot be settled a priori by medical science, bioethics or philosophical reflection. As Radcliffe-Richards suggests, the determination of death has become a moral question, and therefore, now extends into the political arena. I argue for the conclusion that EV, and wider debates about organ donation and the constitution of the organ donation register, are matters of ‘biocitizenship’ and must, therefore, be addressed as ‘biopolitical’ questions. (shrink)

There are not enough solid organs available to meet the needs of patients with organ failure. Thousands of patients every year die on the waiting lists for transplantation. Yet there is one currently available, underutilized, potential source of organs. Many patients die in intensive care following withdrawal of life-sustaining treatment whose organs could be used to save the lives of others. At present the majority of these organs go to waste.In this paper we consider and evaluate a range of ways (...) to improve the number and quality of organs available from this group of patients. Changes to consent arrangements (for example conscription of organs after death) or changes to organ donation practice could dramatically increase the numbers of organs available, though they would conflict with currently accepted norms governing transplantation.We argue that one alternative, Organ Donation Euthanasia, would be a rational improvement over current practice regarding withdrawal of life support. It would give individuals the greatest chance of being able to help others with their organs after death. It would increase patient autonomy. It would reduce the chance of suffering during the dying process. We argue that patients should be given the choice of whether and how they would like to donate their organs in the event of withdrawal of life support in intensive care.Continuing current transplantation practice comes at the cost of death and prolonged organ failure. We should seriously consider all of the alternatives. (shrink)

Elective ventilation (EV) is ventilation applied, not in the interest of patients, but in order to secure transplantable organs. It carries with it a small risk that patients who would otherwise have died will survive in a persistent vegetative state. Is EV ever justifiable? We argue: (1) The only thing which can justify exposing patients to risk not taken for their benefit is their consent, and we cannot rely on implied consent or third party consent in the case of EV. (...) Thus, absent explicit consent of patients, EV is not justifiable. (2) It is not clear that explicit consent should be sought, or where it is offered honoured, given the potential EV has for deterring organ donors and causing stress to staff and families. (shrink)