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Running head: PRESUMED CONSENT
Ethical Considerations Surrounding Organ Donation Models in Ontario and the Proposal
of Presumed Consent
Michael Mason
0384583
NURS 2500
April 4, 2008
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Abstract
In Ontario, there is an incredible need for procurable organs that is not being addressed well
enough. One proposal to increase organ donation rates is to implement a model of presumed consent,
which classifies all patients as potential donors unless an explicit opposition to donation is made
before death. Although it is likely that this model will increase donation rates, there is a host of
ethical issues that need to be considered before this approach is mandated. This paper promotes a
change in provincial organ donation policy to adopt the presumed consent model.
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Introduction
In 2004, a total of 120 Ontario residents died as a result of waiting for life-saving organs that
were not available. Ontario’s donor rate of 13 donors per million population/year (pmp) falls just
below the national donor rate of 14 pmp, and drastically short of the leading donor countries
(Wallace, 2006). These dismal statistics have raised recent debates as to what should be done in order
to provide more life-sustaining organs to desperate Ontarians. However, many of these proposals
include a host of ethical concerns that prevent implementation, such as the proposition of presumed
consent by NDP member Peter Kormos in February, 2006 (Wallace, 2006). Under presumed consent
legislation, “a deceased individual is classified as a potential donor in absence of explicit opposition
to donation before death” (Abadie & Gay, 2005, p.599). This “opt-out” policy is in direct contrast to
the current system in Ontario, which requires a signed donor card, as well as the consent of next-ofkin following legal death. Recently, the Ontario government has made steps to increase the number
of potential donors, including requiring all 13A hospitals to notify all emergency room and intensive
care deaths to the Trillium Gift of Life Network for the possibility of a donor match, introducing
donation after cardiac death (DCD), and enhancing education and general awareness of the facts
around organ and tissue donation (Spencer, 2007). These efforts should be applauded, however donor
rates still remain low. Although controversial, the additional implementation of presumed consent
legislation may be the answer to Ontario’s donor shortage. Consider the following case scenario:
Thomas*, a 39 year old male, has recently suffered a massive heart attack and has
been given less than 2 hours to survive due to heavy ischemia in his ventricles.
Thomas is carrying a valid donor card. Thomas’s immediate family has just heard of
his prognosis and have been informed of the possibility of donating his organs. Due
to the enormity of the situation, the family is unsure what to do and decides to refuse
organ donation. Thomas dies one hour later in severe pain due to systemic organ
failure. Thomas is in a major 13A Ontario hospital and a transplant team is on staff.
*Please note that Thomas is a fictional patient used to illustrate a possible clinical scenario.
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This example illustrates a very difficult, yet not uncommon clinical scenario that incorporates
the multitude of ethical dilemmas when considering organ donation. According to the College of
Nurses of Ontario (CNO), “[Health care professionals] need to be knowledgeable of clinical
situations and ethics, and they require the ability to think through a problem and reach a sound
decision that they can explain and justify by referring to ethical principles” (CNO, 2005, p.3). An in
depth analysis of this scenario using the principles of bioethics will be accounted for in this paper.
Ethical Analysis
The principle of autonomy is the “centrepiece of medical ethics”, which refers to the state of
being self-governing (English and Sommerville, 2003). In general medical practice, when the wishes
of a competent adult patient conflict with those of a patient’s family, the patient’s wishes take
precedence. However, this is not the norm when the issue involves organ donation (May, Aulisio, &
Devita, 2000). Regardless of whether a patient carries a valid donor card or has verbally stated their
specific wishes following death, organs or tissue will not be procured in many countries, including
Canada, unless the family agrees to donation. This undermines the basic principle of autonomy,
which should state that the individual has a first right of control over the disposition of their body,
both before and after death, which is consistent with society’s approach to the disposition of other
forms of property after death (May, Aulisio, & Devita, 2000). The rebuttal to this seemingly faultless
ideology is the argument that family interests should prevail because the family is most affected by
death, and will be most affected if they feel wrong action has been taken (English & Sommerville,
2003). In the case of Thomas, his prior informed decision to donate his organs in an altruistic act to
save up to eight other lives was abolished due to a potentially rash decision made by his family
during a very emotional time. Although improbable, a more cynical answer to why health care
professionals (HCPs) may side with the family’s decision for not procuring organs when the patient
has clearly stated otherwise may be for ‘fear of being sued’ (May, Aulisio, & Devita, 2000).
Moreover, physicians in charge of a potential donor may find it easier to contrive an excuse for not
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considering their patient a donor, rather than progressing with a long, complicated and potentially
disagreeable procedure, regardless of patient’s wishes (Cameron & Forsythe, 2001). Above all other
variables, HCPs should have a duty to respect, and an obligation to promote the free choices of
competent patients (Hebert, 1995, p.25). An alternative to the debate over when to abide by patient’s
prior wishes regarding procurement of their organs following death would be to implement presumed
consent. Under this legislation, the wishes of the family would still be respected; however there
would be a utilitarian assumption in society that donation follows death, which would result in more
unsure family members choosing to donate (Abadie & Gay, 2005). Also, according to English and
Sommerville, an advantage of a presumed consent model is that the main burden of making a
procurement decision would be lessened because a “genuine culture change over time would mean
that donation would come to be seen as the norm for most people” (2003, p.149). On the grounds of
presumed consent, it would be necessary for all citizens to be informed of the policy and have the
option to easily object, regardless of reason (English, 2007). One of the ethical issues preventing
presumed consent to become legislated in Ontario refers to the possibility that organs can be
procured from a deceased individual who is opposed to donation, but whose wishes have not been
formally stated (Wright, 2007). In an ideal presumed consent system, the wishes of all citizens would
be respected and followed, and donor rates would be increased. Another alternative may be to
implement a more coercive version of presumed consent as utilized in Austria and recently in North
Carolina, where family wishes are not taken into consideration during organ procurement (Abadie &
Gay, 2005). In this system, a signed donor card acts as a legally binding document, and therefore
priority is placed on the wishes of the patient, despite concerns that it may anger family members,
lead to negative publicity of the health system, and discourage potential donors (Mesich-Brant &
Grossback, 2005).
When conflict arises between patient and family wishes during organ donation, it may be
difficult for health care professionals to promote good, or act beneficently (Hebert, 1995, p.11). In the
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case of Thomas, one may argue that it would be morally right to procure his organs and potentially
use his death as a means to prolong life in needy recipients regardless of his family’s wishes,
especially since his prognosis is impending death. This philosophy also agrees with the utilitarianism
bioethical theory that one should act with the objective of benefit for the greater good of others
(Abadie and Gay, 2005, p.2). Abadie & Gay agree, stating that “from a purely utilitarian perspective,
it [allowing family members to overrule a patient’s desire to donate] represents the routine disposal
of a highly valuable commodity, with the potential to save lives” (2005, p.2).
Another ethical variable in the given scenario that cannot be overlooked is the fact that
Thomas is considered a potential donor after cardiac death (DCD), which poses significant ethical
problems for end-of-life decision making in intensive care units (Doig, 2006). DCD typically
involves a person who requires a ventilator, and although may have measurable brain function, is
determined to have no hope of recovery. It is then up to the doctors to remove ventilation and to wait
5 minutes after the heart stops beating before pronouncing death (Western, 2006). One of the ethical
concerns posed with this procedure is that there are cases where the heart has stopped beating and
recommenced beating after 5 minutes of stoppage, and another is that stoppage of the heart is caused
by removal of the ventilator (Western, 2006). Additionally, DCD may involve giving the donor drugs
that preserve the donor’s organs, but may hasten the donor’s death (Potts, 2007). Although the intent
of reducing suffering and providing life for others seems convincing, DCD violates a fundamental
principle of medicine, non-maleficence or “do no harm” (Hebert, 1995, p.109), by mistreating the
dying patient and using them only as a means to an end for someone else’s benefit (Potts, 2007).
Potts goes as far to say that “since the patient is not truly dead until his or her organs are removed, it
is the process of organ donation that causes the donor’s death” (2007, p.17).
In health care, justice is usually defined as a form of fairness (Hebert, 1995, pp.11-12). As
Aristotle once said, "giving to each that which is his due", implying the fair distribution of benefits
and burden in society (McCormick, 1998). Although the sensitivity to family wishes is important, the
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reasons for requiring the family to consent to organ donation do not justify a practice of overriding a
deceased patient’s documented wish to donate (May, Aulisio, & Devita, 2000). Honouring the
documented wishes of a deceased patient to donate should be a morally required act on behalf of
HCPs.
Discussion and Conclusion
A move to presumed consent in Ontario has benefit to all members of society, despite claims
by some critics who believe presumed consent will not increase donation rates (Wright, 2007). To
those who support donation, there would be no effort needed to ensure their wishes are followed. To
those opposed, their wishes will be formally recorded and respectfully followed. For families,
presumed consent relieves the burden of decision making when they have recently been informed
that their loved-one has died or is dying. Finally, and most significantly, a presumed consent model
will allow for more organs to be available, and consequently, more lives will be saved (English,
2007). Although the presumed consent model may not solve the organ shortage in Ontario, its
structure seems probable to reduce waitlist numbers. In order to avoid further ethical scrutiny, the
presumed consent model would have to adopt certain integral capabilities. These include notifying
every adult to be formally informed of the law and giving them an opportunity to state their choice,
possibly having organ donation topics as part of the provincial high school curriculum, increasing
public awareness of organ donation policy to believe that such an act should be normal, and ensuring
that the presumed consent program is managed effectively (Courtney, 2003). Alternative solutions of
financial incentives and coercion among living donors are highly unethical (Delmonico, 2004). When
considering the ethical dilemmas of presumed consent including the possibility of wrongly
presuming donors, having inappropriate public support and consequently mistrust in the health care
system, and the possibility of reduced willingness to donate, it is understandable that policy makers
are hesitant to adopt such a model. However, the possibilities of these ramifications are extreme and
the benefit of saving countless lives under the new system is highly probable. Regardless of what
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system becomes implemented, there is overwhelming support that more drastic measures need to be
taken to change the public’s attitude toward organ donation in Ontario (Wallace, 2006). There is a
notion in this country that giving of an organ is an act of benevolence. Agreeing with Mr. Kormos, I
believe that donating organs should be as normal brushing your teeth (Wallace, 2006).
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