Organ and Tissue Donation after Medical Assistance in Dying: Guidance for Policy Update Forum

Deceased organ and tissue donation after medical assistance in dying and other conscious competent donors: guidance for policy update

Background

In 2017, Canadian Blood Services in collaboration with the Canadian Critical Care Society, the Canadian Society of Transplantation, and the Canadian Association of Critical Care Nurses hosted a two-day consensus forum in response to patient-initiated and practitioner requests for guidance on organ and tissue donation after medical assistance in dying (MAiD). Medical, legal and ethical experts, as well as patient and family partners, were brought together and developed guidance to help organ and tissue donation organizations, administrators, policy makers, and health care teams navigate clinical issues surrounding organ and tissue donation by patients who choose to donate their organs and tissues after MAiD or the withdrawal of life-sustaining measures (WLSM).

The 2019 publication, Organ and Tissue Donation for Medical Assistance in Dying and Other Conscious Competent Patients: Expert Guidance for Policy, makes several key recommendations, including:

• Protection for patients–the decision to have MAiD or withdrawal of life-sustaining measures must occur before any discussion of organ and tissue donation.
• Choice–medically suitable conscious competent patients who provide first-person consent to end-of-life procedures should be given the opportunity to donate organs and tissues.
• Consent–the patient must be able to provide first-person consent and be able to withdraw consent for MAiD or donation at any time.
• Donor testing–physicians, transplant teams and other staff should try to minimize the impact and disruption of donating (such as testing) for the patient.
• Determination of death–the dead donor rule must be respected, meaning vital organs and tissue can only be removed from deceased donors after determination of death according to accepted criteria.
• Conscientious objection–health-care professionals may choose not to participate in MAiD or withdrawal of life-sustaining measures, but they should work to support the patient’s wishes to donate. To date, there have been many instances in which conscious, competent patients have successfully donated their organs and tissue following MAiD or WLSM across Canada, resulting in more lives saved.

NEW: Updates to the medical assistance in dying legislation

The Supreme Court of Canada decriminalized MAiD in 2015, and Parliament passed Bill C-14 to outline the procedures and eligibility criteria for MAiD in Canada in June, 2016. In October 2020, the Quebec Superior Court found that one of the eligibility criteria outlined in Bill C-14 was incompatible with the original decision of the Supreme Court of Canada. Accordingly, the Minister of Justice and Attorney General of Canada introduced Bill C-7, which proposed a series of changes to the Criminal Code’s provisions on MAiD to align with this decision, and to address some additional concerns with the procedures outlined in the original Bill C-14. The proposed changes follow extensive consultations with Canadians, experts, practitioners, stakeholders, Indigenous groups, provinces and territories, and an online questionnaire that received over 300,000 responses.

In summary, the Bill proposed the following Criminal Code amendments to the MAiD regime:

• Eligibility criteria–repeal the “reasonably foreseeable natural death” criterion butexclude cases where mental illness is the sole underlying medical condition;
• Safeguards–create two sets of safeguards − one set of eased safeguards for people whose natural death is reasonably foreseeable, and a second set of new and clarified safeguards for people whose natural death is not reasonably foreseeable;
• Advanced consent–waive the requirement for final consent at the time of the MAiD procedure for persons whose natural death is reasonably foreseeable and who have been assessed and approved for MAiD if they lose capacity to reaffirm consent before their scheduled date for MAID and have a written arrangement with a practitioner; and permit advanced consent to the administration of MAiD by a practitioner in cases of failed self-administration;
• Monitoring regime–enhance the reporting requirements based on experiences with the federal MAiD monitoring regime to date. Bill C7 was adopted on March 17, 2021 and these proposed legislation changes have come into force across Canada.

Guidance for policy update

In response to the legislation changes outlined above, Canadian Blood Services assembled a group of medical, legal and ethical experts, as well as patient and family partners, to examine the legislation changes and it s impact on organ and tissue donation practices. In particular, the group will examine the potential impacts of advance consent and loss of capacity prior to MAiD and donation. The group will not focus on issues surrounding eligibility to MAiD. The group will also use this opportunity to examine other emerging issues related to MAiD and donation, including directed donation, donation following MAiD at home, national data collection, knowledge gaps and future research questions. Based on the expert deliberations, the current guidance for policy will be updated, as necessary.

Stakeholders came together for a virtual forum in June of 2021. A report is currently in publication.

A second meeting took place in April 2022.

For additional information If you have any questions or require further information, please contact Ken Lotherington, Specialist, System Development, at ken.lotherington@blood.ca .

Related publications

Downar J, Shemie SD, Gillrie C. Deceased organ and tissue donation after medical assistance in dying and other conscious and competent donors: guidance for policy. CMAJ 2019 June 3;191:E604-13. doi: 10.1503/cmaj.181648