Right: Medical ethicist Dr Nicholas Tonti-Filippini says that more needs to be done to ensure that misdiagnosis of brain death does not occur.
Arguments suggesting that Australia's guidelines are sufficient to protect organ donors
1. Australia's national guidelines protect the rights of the donor.
Senator McLucas, the parliamentary secretary to the Minister for Health and Ageing, has stated, 'The needs of the patient and their family will always take precedence over the retrieval of organs for transplantation.'
Senator Jan McLucas has also reassured the public that their organs would only be taken when they were clinically dead.
Senate Lucas has assured the community, 'Australians should be confident that our processes for transplantation are among the best in the world.'
Dr Dominic Wilkinson, a neonatologist and Nuffield Medical Research Fellow at Oxford Uehiro Centre for Practical Ethics, University of Oxford, has stated, 'The community has nothing to fear from consenting to organ donation, either for themselves or for their loved ones. In all of the intensive care units that I have worked in, in Britain and Australia, decisions about the declaration of death and the withdrawal of life support are made independently of decisions about eligibility for organ donation.
No patients, who would otherwise have survived, die in intensive care because they have consented for organ donation. Every effort is made to ensure that dying and recently deceased patients are cared for with dignity and respect. This is in accordance with national and international guidelines, and is how it should be.'
2. Australia's guidelines have only recently been reviewed
Associate Professor Bill Silvester, the director of Victoria's organ donation service, LifeGift, has argued that the guidelines for organ donation, laid down for this country by the Australian and New Zealand Intensive Care Society (ANZICS), have been revised as recently as this year.
The ANZICS Statement on Death and Organ Donation was released in 2008. Its foreword notes that this is the third set of guidelines to be produced and indicates that the 'exhaustive' process that was gone through and the additional areas that have been covered.
The foreword states, 'This third edition builds on the first two, but provides greater detail on the determination of brain death and the responsibilities of intensive care staff. An additional chapter has been added on donation after cardiac death (DCD), in recognition of the increasing DCD activity in Australia and New Zealand. We recognise that so-called cardiac death includes death of the person as a whole, with death of the brain being an inevitable consequence of permanent cessation of the circulation.
The process of revision for the third edition of the Statement has been exhaustive, with a comprehensive review of relevant literature, including comparable documents from other countries, and a complete rewriting of the content to enhance clarity and expand the detail around the more complex issues. An exposure draft was made available for comment to ANZICS members, medical and nursing colleges, state-based organ donation agencies, other societies and associations. These comments were collated and reviewed by the Committee, with further changes being made to the draft Statement where appropriate.'
3. There is no confusion around when death has occurred
Many of those who operate in the area of intensive care and organ harvest and transplantation argue that the conditions which need to be met for death to be certified are clear and well-known.
Associate Professor Bill Silvester, the medical director of LifeGift (Victorian Organ Donation Service) and Senior Intensive Care Specialist at the Austin Hospital, has stated, 'Brain death ... is carefully determined by a very specific set of clinical tests of the brain reflexes. These tests include an assessment of the brain's ability to respond to any stimulation and the ability to breathe without an artificial ventilator.
If it is clear that the patient is comatose (completely unconscious), unable to breathe and without any brain reflexes, and this condition has no other possible cause, then it can be determined that the patient's brain has died with zero chance of recovery.
The clinical tests are done twice, by two independent and appropriately qualified senior doctors. In certain uncommon, but well recognised, circumstances, these clinical tests cannot be done and then the intensive care doctor undertakes a specific investigation to look for blood flow within the brain.
In recognition of the importance and gravity of these tests to diagnose the death of a person's brain, the specific technical details of how to conduct these tests are carefully stipulated in medical guidelines.'
4. Reopening the debate around organ donation guidelines could give needless distress to relatives of donors
It has been stated that further debate about the guidelines that are used to determine whether death has occurred and organs can therefore be harvested can only cause distress to the relatives of donors.
It has been suggested that at the time of death of a loved one, relatives need confidence and reassurance not unfounded doubts about the validity of a diagnosis of death.
Associate Professor Bill Silvester, the medical director of LifeGift (Victorian Organ Donation Service) and Senior Intensive Care Specialist at the Austin Hospital, has stated, 'When I am speaking to the family of a patient whose brain has just died, it is of crucial importance to convey the certainty of the diagnosis. They are hearing, from a doctor that they hardly know, that there is no hope for their loved one who is lying in a bed in the ICU, whose chest is going up and down as the ventilator pushes air into the lungs, with warm hands and feet and a beating heart, looking like he or she is just asleep.
It is following this understanding and acceptance of the death of their loved one that the intensive care specialist raises the possibility of organ donation with the family. There is no other time to raise this because there is only a matter of time before those organs start deteriorating, following the death of the brain.
It never fails to amaze me how bereaved families, in the midst of the struggle with their loss, are prepared to briefly put their grief aside to consider, and agree to, the unconditional donation of their loved one's organs to help other people that they will never know and never meet...
They frequently say that "this is the only positive thing that can come out of this tragedy" or "we can fulfil/honour his/her wishes".'
It has been stressed that any appearance of uncertainty in such circumstances can only add to the pain and distress of the potential donor's family.
5. Reopening the debate around organ donation guidelines could create doubt in the minds of potential donors
Numerous prominent people involved with organ transplants have expressed concern that a debate around what constitutes death in potential organ donors could lead many to reconsider becoming donors.
Jan McLucas, the parliamentary secretary to the Minister for Health and Ageing rejected any call for a review of organ donation guidelines and said donors could be sure they would be dead if their organs were ever retrieved.
Senator McLucas condemned critical comments made by Dr Tibballs as 'irresponsible' and said she was concerned they could erode confidence in Australia's transplantation process with 'devastating' effects for those waiting for life-saving transplants.
The National Health and Medical Research Council (NHMRC) has recently issued a media release expressing its concern that the current debate around organ donation and how it was determined that potential donors had in fact died might lead to a decline in organ donations.
The NHMRC stated recent media misinformation 'is of concern to us because the information might have an adverse impact on the donation rate of critically-needed organs and tissues.
Suggestions in the media have been that in order to increase organ donation rates, health authorities are under pressure to allow doctors to obtain organs from patients who are still "technically alive".
The NHMRC wishes to reassure the public that this will not occur. It will continue to be illegal and unethical to remove organs before people are dead.
There is also no intention or need to change the definition of death to facilitate organ donations, or for any other purpose.'