Patient's best interests and presumed consent in ante-mortem organ preservation in end-of-life care

Editor – Littlejohns et al comment on the National Institute for Health and Care Excellence (NICE)'s interpretation of ‘best interest’, which permits presumed consent to ante-mortem organ preservation (Clin Med August 2013 pp 340–3). We argue this interpretation is incompatible with two preconditions established by The High Court of Justice in Ahsan v University Hospitals Leicester NHS Trust in 2006: first, the patient's best interests and second, reasonableness of the proposed care regime.¹

Patient's best interests

The Mental Capacity Act stipulates that patient's best interests must include ‘…the beliefs and values that would be likely to influence his decision if he had capacity…’ and ‘…the views of – anyone engaged in caring for the person or interested in his welfare’.¹ Familial, cultural and religious values determined the best interest of Ahsan, a Sunni Muslim, who was mentally incapacitated, with end-of-life care. Judge Hegarty QC ruled that ‘most reasonable people would expect…that they would be cared for, as far as practicable, in such a way as to ensure that they were treated with due regard for their personal dignity and with proper respect for their religious beliefs'.¹ NICE infers that ‘best interest’ in end-of-life care can include presumed consent to ante-mortem organ preservation for third party interests (recipients). This inference collides with the stipulated ‘best interest’ in the Mental Capacity Act, when preparation and execution of organ procurement transgress religious values. Major world religions forbid organ donation if surgical procurement itself is the proximate causation of death.²

Reasonableness in end-of-life care

Ante-mortem procedures are continued until the surgical procurement team is available to recover organs which can interfere with optimal end-of-life care.³ Donors failing to meet neurological criteria for heart-beating donation are required to undergo elective withdrawal of life support for a controlled circulatory arrest and non-heart-beating donation.⁴ Circulatory arrest beyond 60 minutes is associated with primary non-function or delayed function of transplanted organs.⁴ Organ donation euthanasia is recommended in those who are unlikely to develop circulatory arrest within appropriate timelines.⁵

In conclusion, the arguments of the patient's ‘best interests' and the reasonableness of care regime fail to legally ground presumed consent to ante-mortem organ preservation. Uncorrected, it results in the violation of religious values and human rights of potential donors and surviving families.