To the Editor: Richards and Rogers1 claim that antemortem interventions on an organ donor to improve organ viability for donation after cardiac death (DCD), such as administration of heparin and femoral vessel cannulation, are ethically and legally justified. Their reasoning is flawed.

Their ethical argument is twofold. First, they argue that, just as consent for appendicectomy is broad and does not encompass details of the operation, so too the consent for organ donation is broad and does not exclude antemortem procedures. This is drawing a long bow. While details of appendicectomy are in the patient’s best interests while alive, interventions performed on a potential donor while alive for organ procurement after his or her death are not.

It would be clear to potential donors signing a consent form giving permission for organs to be harvested after they die that they are not also giving permission for procedures to be performed while still alive. If potential donors discover that interventions which may hasten or contribute to their death could be done on them without their express consent, adverse publicity would reduce organ donation. Not only is the proposal disingenuous, it would be challenging indeed to find a potential donor willing to be harmed by treatment in order to be the donor of better organs!

The authors’ second ethical argument, which relies on a conference report,2 is:

The underlying assumption is that full heparinisation carries no risk. This is wrong — major haemorrhagic complications of even therapeutic heparinisation have long been recognised.3 Moreover, the conference report also stated:

Thus, their argument is based on a statement taken out of context and against evidence.

Ethical guidelines on the subject conflict. The National Health and Medical Research Council (NHMRC) guidelines state that:

In contrast, section 2(6)(h)(i) of the New South Wales Health guidelines5 advises against the use of antemortem interventions, because they would unlawfully contravene section 46(2)(b) of the Guardianship Act 1987 (NSW), which restricts guardians to consenting to treatments with the purpose of “promoting or maintaining the health and well-being” of the person involved. Whether one agrees or disagrees with either guideline, they do not constitute law.6

Richards and Rogers’ legal argument relies merely on fulfilment of a donor’s desire to be an organ donor as justification under the various Guardianship Acts. However, this argument can only apply when the antemortem interventions are not harmful to the potential donor; heparinisation is potentially harmful, and femoral vessel cannulation is clearly harmful.

The NSW guidelines are criticised for interpreting the patient’s best interests requirement of the Guardianship Act too narrowly, and therefore do not constitute a reason to not perform antemortem interventions. But I consider this argument to be hoisted on its own petard: it is equally too narrow to focus on the wishes of the patient to be a donor as justification to perform antemortem interventions. The legal requirement is clearly illustrated in the Guardianship and Administration Act 1986 (Vic), which stipulates that a guardian must take account of all of several factors in determining if a treatment is in the patient’s best interests (Box).

Lastly, an attempt is made to buttress the legal argument by reference to Airedale NHS Trust v Bland, in which the House of Lords permitted withdrawal of life-sustaining treatment to allow a man in a persistent vegetative state to die. Since the Lords considered best interests to include wider interests than continuance of futile treatment, Richards and Rogers, by analogy, believe that this concept is sufficient to justify performance of antemortem interventions on potential donors. In fact, the House of Lords did not base their decision on best interests, but rather on “the futility of the treatment which justifies its termination”.7 Comments by the Lords about other best interests did not form part of the court’s decision and so do not constitute law, cannot be invoked in other circumstances, and in any case, do not apply to Australian jurisdictions.

There is neither ethical nor legal justification to perform antemortem interventions on a potential donor for the benefit of a recipient. Noble as the proposal may first appear, it is a Rubicon not to be crossed.