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Organ Transplant Live Organ Donation Types of Tissue involved
Regenerative tissue o If a living donor wishes to donate regenerative tissue (e.g. blood or bone marrow) there are few legal and ethical issues
? We need only be concerned whether consent was fully informed
Non-regenerative tissue o Where P wants to donate something like a kidney, which will not naturally regenerate, the issue becomes more complex. There are three basic principles:
? It is not permissible to consent to a procedure which causes death or serious injury
Therefore, a parent cannot donate a heart to a child, as the parent will die in doing so.
Donation of a single kidney, segment of liver or lobe of a lung may be permissible if the donor is in good health
? There must be consent to the procedure
So the donor must fully understanding the processes involved
And an incompetent person cannot donate unless it is in their best interests - and it is unlikely that it will ever be o However, the court in Y managed to get there by contorted backward reasoning o Although the HOTA 1989 means that if a donation is to someone not genetically related to the donor, it is extremely unlikely that it would be lawful for an incompetent person to donate.
? The procedure must be permissible under HTAct 2004 s.33
Subsections (1) and (2) respectively attach criminal proceedings to (a) o anyone who removes transplantable material for transplant into another, o or uses the transplantable material respectively
? if (b) he knows or is reasonably expected to know the "donor" is alive
This is subject to subsection (3), which states that the Sec of State may by regulations that (1) or (2) should not apply in a case where o (a) the Authority is satisfied
? (i) that no reward has been or is given for a contravention of ss.32 [commercial dealing]
? (ii) and such other conditions as are specified in the regulations are satisfied o AND (b) such other requirements as specified in the regulations are complied with
Herring: The Human Tissue Authority has extensive regulations concerning live donors o It has to be discussed with the donor the implications on their health and that there is no guarantee the organ will help the donee.
?Where the donor is genetically or emotionally related to the recipient and they have met with a clinician and independent assessor, the donation can go ahead However, if there is no genetic/emotional relationship, the parties need approval from a HTA panel.
Who should be able to donate organs?
o HTA has a Code of Practice:
? There it is said that donations from children will be extremely rare
? Any donation from a child must also be approved by the Panel of the HTA o Where organs are donated, in whole or in part, a court order is required:
? HTA Code: As with cases involving lack of capacity, this is because on the face of it, the procedure is not therapeutic
and not obviously in the best interests of the prospective donor child
The court will have to determine this, looking beyond medical interests into potential emotional, psychological and social benefits and risks.
? Herring: so even were kid is Gillick competent, the consent of the court is required
Could the donation be in the best interests of the child?
o Welfare of child would be promoted if donate organ to someone with whom they had a close bond (e.g. sister) who might otherwise die
? Might run into trouble with more distant relationship, or donation to recently born sibling - future benefits can be taken into accounts?
o The emotional and social benefits must also be taken into account, not just medical ones o Hashimi - HOL approved "savour sibling" - genetic screening in order to find bone marrow match in potential child for cure genetic problems.
o There are three main ways by which the removal or transplantation or an organ can be authorized by an incompetent person
? Advance Directive - s.28 MCA 2005
However, the advance directive only refers to a refusal of treatment
? An enduring power of attorney
The incompetent person might have signed an enduring power of attorney which has authorized someone to make decisions concerning his or her welfare o However, as with advance directions, the legislation only permits the donee of the power of attorney to authorise treatment -
? and it's questionable whether donation of bodily material is treatment
? The best interests of the patient - MCA s.1(5)
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