Organ donation inevitably deals with individuals whose cause of death is sudden. The great majority of cases that lead to organ donation in Europe and the USA arise from intracranial haemorrhage or thrombosis and the diagnosis is quite clear. Death or irreversible brain injury leading to a diagnosis of brain stem death does occur sometimes in circumstances where legal processes require police involvement or investigation. Such cases may involve trauma such as a road traffic accident or unexplained or unexpected death through falling or other trauma. The majority of countries do not have advisory frameworks which can assist coroners, procurator fiscals, medical examiners, district attorneys or judges to make decisions regarding the legitimacy of proceeding with organ donation in the context of the death of an individual which :-
- may require police investigation or involvement
- may require a post mortem examination to establish a cause of death
- where there may have been a criminal act contributing to death.
Sometimes the question over whether organ donation may proceed is left to the police officer deputising for the coroner, procurator fiscal, medical examiner or judicial office. In cases of uncertainty the default answer to the question of whether it is possible to proceed with organ donation is often “no” because this represents the most risk averse perspective. Sadly in some cases the opportunity for organ donation is lost and the organs may be wasted.
Now I am not a lawyer and would not claim to have great insight in to legal or judicial processes in my own country let alone in other countries. I have, however, spoken to many lawyers and judicial officers who do have to make the kind of decisions that I refer to above. I believe that some of the difficulty in permitting organ donation in circumstances where the exact cause of death are not entirely clear, come from a few commonly held fears and probably a misconception over what evidence a forensic post mortem examination can provide.
Misconceptions and misunderstandings
- Organ donation will prevent a forensic post mortem taking place or will detract from the quality of evidence that can be acquired.
This is not true. Samples for toxicology can be taken before organ procurement,organs removed can be photographed or biopsied to contribute to evidence and the body can still be examined forensically after donation. Furthermore, the surgical team can provide a detailed report which can be submitted in evidence which documents the findings in the chest and abdomen. I personally believe that the forensic evidence obtained from this process is probably far superior to that obtained from a body undergoing a forensic post mortem that has been stored in a refirgerator for 48 hours or more.
2. In the case of a brain dead but heart beating donor in which there is a suspicion of homicide, organ donation will be blamed by the defence legal team for the cause of death.
Brainstem death is a legal definition of death in the United Kingdom and a number of other countries. It is not possible to die twice. If brainstem death has been diagnosed the individual is legally dead,any intervention or event following this diagnosis is ‘post mortem’.
Here are a number of case stories. I have changed the details so that the cases are unidentifiable but they are all based on true events and serve to show some of the problems that can occur with organ donation in unexpected deaths. I have used the term duty legal officer to represent the coroner, district attorney, procurator fiscal or judge with legal authority to grant permission to enable organ donation to proceed.
- A young man in his 20’s was stabbed in the chest with a knife. He sustained major haemorrhage and had a prolonged resuscitation after a hypotensive cardiac arrest. He was successfully resuscitated but sadly had no neurological function and was declared brain dead. The family indicated that they wished for the deceased to donate his organs for transplantation.
- The duty legal officer was asked to permit organ donation but he refused because of the circumstances of death.
- While this was going on the perpetrator was arrested by police still carrying a blood stained knife that had been used in the attack. The duty legal officer was again asked to permit organ donation
- He refused
- Because further treatment was considered futile and organ procurement was prohibited the intensive care team withdrew care, circulation ceased and the potential organ donor was lost
- His family who were already grieving, were even more upset because of this loss of opportunity to donate organs
- A forensic post mortem examination confirmed a single stab wound to chest severing a pulmonary artery. Further evidence to link the perpetrator to the deceased was not considered necessary because of evidence obtained at the time of arrest.
- The outcome of this sequence of events- 0 transplants
A 7 year old child sustained a severe brain injury falling from the window of an apartment block.
The exact circumstances of death were uncertain, particularly how the child came to fall.
A police investigation revealed no witnesses to the moment of the fall but there were witnesses to the aftermath. There was considered a potential to have been accidental or deliberate.
The case was discussed with the duty legal officer and the parents desire for the child to donate their organs was discussed. The duty legal officer considered the case and agreed to organ donation subject to a number of provisos.
- Police pathologist examined body after diagnosis of brainstem death and before organ procurement.
- Organ donation proceeded in line with parents wishes
- All organs removed were photographed and the surgeons provided a detailed report of the procedure and findings.
- The body was subjected to post mortem examination of the brain/head afterwards.
- Transplants arising from this donation included the heart & lungs, liver, 1 kidney/pancreas, 1 kidney alone
- 78 year old person fell down outside stairs sustaining irretrievable brain stem injury following a visit to the gym.
- The patient was admitted to the emergency department and declared brain stem dead
- The duty legal officer agreed to organ donation and informed the police
- Police superintendent refused to release body because further investigations were still ongoing.
- The potential donor increasingly unstable.
- The police Superintendent confirmed that investigations had been completed
- The transplant coordinator again called the police and the duty legal officer and asked for permission to proceed with organ donation.
- They agreed that sufficient evidence had been obtained to rule out a criminal contribution to the individual’s fall and head injury.
- A police pathologist had examined body prior to organ retrieval
- A detailed report of the abdominal findings was provided by the surgical team
- 2 kidneys and 1 liver transplant resulted.
With careful consideration it is possible to work with legal authorities and police to enable organ donation to proceed.
What are the learning points?
- Establish what information is necessary/essential from a forensic perspective
- Consider whether the quality of the information might be better working with a transplant team, pathologist and photographer than from a forensic post mortem examination.
- Understand that contrary to popular culture forensic pathology rarely offers the quality of evidence that people believe.
- Aspects of the organ procurement process can provide quality evidence from a legal perspective and organ donation can co-exist with legal and judicial investigations and processes.
- Dont just take “no” for an answer and challenge the paradigm to see if there is another way that will enable organ donation.