LEGAL MAT TER S
Can the family block organ donation? By Kristopher T. Starr, JD, MSN, RN, FNP-C, CEN, CPEN
CAN FAMILY OR NEXT OF KIN mount a legal challenge to a patient’s decision to donate organs? The first rule applying to any legal question is that in general, anyone can challenge anything in the courts. At times, when the law seems entirely clear, one might conclude that our permissive allowance of last-ditch legal challenges is a bit frivolous. These behaviors may be the reason that William Shakespeare famously wrote, “the first thing we do, let’s kill all the lawyers.”1 All U.S. states and territories favor anatomical donation. 99.9% of the time, the donor’s published intent, meaning the decision to donate indicated on the drivers’ license or any donative document, will win out. Where no published intent exists, the donor’s next of kin, in order of priority (spouse, adult children, parents, siblings), are the deciding persons. It remains true, however, that the American courts are open to hear challenges to just about any concern over personal freedoms, including the decision to donate one’s body, organs, or other constituent parts. Due to the acceptance of the national importance of a dedicated organ donation system, the National Conference of Commissioners on Uniform State Laws promulgated the Uniform Anatomical Gift Act (UAGA) in 1968. The purposes of the UAGA were to simplify the process of anatomical donation, promote
solidarity of the states in the donation process, and encourage individual generosity.2 All states promptly adopted the UAGA. In 1987, when the UAGA underwent its first revision, only 26 states signed on.3 A second major revision to the UAGA occurred in 2006. All of the states except three (Delaware, Pennsylvania, and New York) and Puerto Rico have enacted the 2006 UAGA. The conflict between the 1987 and 2006 UAGA revisions seems to center on presumed consent and actual consent, and here is where the potential for a legal challenge to the donor decision creeps in.4 The 1968 and 1987 UAGAs preferred to operate on the premise of presumed consent, meaning any written (published) declaration of the donor as to positive donative intent was, in fact, viewed to favor donation. In contrast, the 2006 UAGA takes away the presumed consent doctrine and explicitly specifies direct written or actual consent declarations. It also provides very concrete provisions for refusal to donate and revocation of prior intent to donate. Designation on one’s drivers’ license, by a donor card, or in a testamentary or advance directive document all set the standard for consented, predeath donor intent to donate under the 2006 UAGA. Prospective donors can also follow a procedure for stating their predeath
intent in the presence of two adult witnesses. So, where does the legal challenge opportunity come in? Imagine, if you will, a patient’s son who’d been estranged from the patient, his mother, and no written donative declaration exists. He comes to his mother’s deathbed and claims that they’d reconciled and had engaged in long and deep conversations about organ donation. The son claims that during these conversations, she’d verbally revoked her intent to donate in the absence of a clear written donative direction (this actually happens). In Delaware, Pennsylvania, and New York, you’d have to look at the Anatomical Gift Act in effect and determine what operative provisions of the law provide for conflicts in the intent of the donor and family members. In these three states and Puerto Rico, actual or presumptive intent of the donor may win out. So, in presumptive consent states, any written indicia of donative intent may well carry the day. However, in the 47 states that have adopted the 2006 UAGA, the donor’s clearly published intent will win this battle. If the donor hasn’t stated his or her intent, a majority rule provision says that, in a conflict situation, most of the same class of next of kin (say, the patient’s adult children if the patient has no surviving spouse) can vote and consent or refuse to consent. For the nurse at the bedside who recognizes organ donation potential
16 l Nursing2015 l May
www.Nursing2015.com
Copyright © 2015 Wolters Kluwer Health, Inc. All rights reserved.
and suspects the family will object, the best option is preplanning. Let your nurse manager know early. Get hospital risk or legal personnel on notice and initiate an immediate conversation with your regional organ donation office. Your regional organ donation office is a very good resource for the current status of organ donation resources in your area and can address family objections. In the event of legal challenge, objectors will usually go to the jurisdictional equity court and try to procure emergency injunctive relief (temporary restraining order) or legal guardianship, which would make them the effective decision maker
for the alleged ward (incompetent person). These legal challenges are extraordinary and rarely granted, but these legal avenues are available for someone who may want to upset the donation process. Where there is conflict, preplanning for those situations can go a long way to alleviating legal interventions and, worse, the loss of a viable donor who in fact intended to donate. A safe action is to become familiar with your facility’s policy on anatomical donation. Start there and do your research. A well informed and prepared nurse is the best antidote to confusion and consternation.
Above all and till next time, keep it legal. ■ REFERENCES 1. Shakespeare W. Henry VI, part 2. Act IV, Scene II. 2. Capron M. Six generations of organ donation and the challenges that shifting the United States to a market system would create around the world. Duke J Law Contemp Problems. 2014;77(3):25-204. 3. Uniform Law Commission. The National Conference of Commissioners on Uniform State Laws. http://www.uniformlawcommission.com. 4. Orentlicher D. Presumed consent to organ donation: its rise and fall in the United States. Rutgers Law Review. 2009;61(2):295-331. Kristopher T. Starr is an Attorney at Law, Ferry Joseph, P.A., Wilmington, Del.; Nurse Manager, Wilmington Hospital Emergency Department, Christiana Care Health System, Wilmington, Del.; and a member of the Nursing2015 editorial board. DOI-10.1097/01.NURSE.0000463664.83723.f7
May l Nursing2015 l 17
www.Nursing2015.com
Copyright © 2015 Wolters Kluwer Health, Inc. All rights reserved.
Can the family block organ donation? By Kristopher T. Starr, JD, MSN, RN, FNP-C, CEN, CPEN
CAN FAMILY OR NEXT OF KIN mount a legal challenge to a patient’s decision to donate organs? The first rule applying to any legal question is that in general, anyone can challenge anything in the courts. At times, when the law seems entirely clear, one might conclude that our permissive allowance of last-ditch legal challenges is a bit frivolous. These behaviors may be the reason that William Shakespeare famously wrote, “the first thing we do, let’s kill all the lawyers.”1 All U.S. states and territories favor anatomical donation. 99.9% of the time, the donor’s published intent, meaning the decision to donate indicated on the drivers’ license or any donative document, will win out. Where no published intent exists, the donor’s next of kin, in order of priority (spouse, adult children, parents, siblings), are the deciding persons. It remains true, however, that the American courts are open to hear challenges to just about any concern over personal freedoms, including the decision to donate one’s body, organs, or other constituent parts. Due to the acceptance of the national importance of a dedicated organ donation system, the National Conference of Commissioners on Uniform State Laws promulgated the Uniform Anatomical Gift Act (UAGA) in 1968. The purposes of the UAGA were to simplify the process of anatomical donation, promote
solidarity of the states in the donation process, and encourage individual generosity.2 All states promptly adopted the UAGA. In 1987, when the UAGA underwent its first revision, only 26 states signed on.3 A second major revision to the UAGA occurred in 2006. All of the states except three (Delaware, Pennsylvania, and New York) and Puerto Rico have enacted the 2006 UAGA. The conflict between the 1987 and 2006 UAGA revisions seems to center on presumed consent and actual consent, and here is where the potential for a legal challenge to the donor decision creeps in.4 The 1968 and 1987 UAGAs preferred to operate on the premise of presumed consent, meaning any written (published) declaration of the donor as to positive donative intent was, in fact, viewed to favor donation. In contrast, the 2006 UAGA takes away the presumed consent doctrine and explicitly specifies direct written or actual consent declarations. It also provides very concrete provisions for refusal to donate and revocation of prior intent to donate. Designation on one’s drivers’ license, by a donor card, or in a testamentary or advance directive document all set the standard for consented, predeath donor intent to donate under the 2006 UAGA. Prospective donors can also follow a procedure for stating their predeath
intent in the presence of two adult witnesses. So, where does the legal challenge opportunity come in? Imagine, if you will, a patient’s son who’d been estranged from the patient, his mother, and no written donative declaration exists. He comes to his mother’s deathbed and claims that they’d reconciled and had engaged in long and deep conversations about organ donation. The son claims that during these conversations, she’d verbally revoked her intent to donate in the absence of a clear written donative direction (this actually happens). In Delaware, Pennsylvania, and New York, you’d have to look at the Anatomical Gift Act in effect and determine what operative provisions of the law provide for conflicts in the intent of the donor and family members. In these three states and Puerto Rico, actual or presumptive intent of the donor may win out. So, in presumptive consent states, any written indicia of donative intent may well carry the day. However, in the 47 states that have adopted the 2006 UAGA, the donor’s clearly published intent will win this battle. If the donor hasn’t stated his or her intent, a majority rule provision says that, in a conflict situation, most of the same class of next of kin (say, the patient’s adult children if the patient has no surviving spouse) can vote and consent or refuse to consent. For the nurse at the bedside who recognizes organ donation potential
16 l Nursing2015 l May
www.Nursing2015.com
Copyright © 2015 Wolters Kluwer Health, Inc. All rights reserved.
and suspects the family will object, the best option is preplanning. Let your nurse manager know early. Get hospital risk or legal personnel on notice and initiate an immediate conversation with your regional organ donation office. Your regional organ donation office is a very good resource for the current status of organ donation resources in your area and can address family objections. In the event of legal challenge, objectors will usually go to the jurisdictional equity court and try to procure emergency injunctive relief (temporary restraining order) or legal guardianship, which would make them the effective decision maker
for the alleged ward (incompetent person). These legal challenges are extraordinary and rarely granted, but these legal avenues are available for someone who may want to upset the donation process. Where there is conflict, preplanning for those situations can go a long way to alleviating legal interventions and, worse, the loss of a viable donor who in fact intended to donate. A safe action is to become familiar with your facility’s policy on anatomical donation. Start there and do your research. A well informed and prepared nurse is the best antidote to confusion and consternation.
Above all and till next time, keep it legal. ■ REFERENCES 1. Shakespeare W. Henry VI, part 2. Act IV, Scene II. 2. Capron M. Six generations of organ donation and the challenges that shifting the United States to a market system would create around the world. Duke J Law Contemp Problems. 2014;77(3):25-204. 3. Uniform Law Commission. The National Conference of Commissioners on Uniform State Laws. http://www.uniformlawcommission.com. 4. Orentlicher D. Presumed consent to organ donation: its rise and fall in the United States. Rutgers Law Review. 2009;61(2):295-331. Kristopher T. Starr is an Attorney at Law, Ferry Joseph, P.A., Wilmington, Del.; Nurse Manager, Wilmington Hospital Emergency Department, Christiana Care Health System, Wilmington, Del.; and a member of the Nursing2015 editorial board. DOI-10.1097/01.NURSE.0000463664.83723.f7
May l Nursing2015 l 17
www.Nursing2015.com
Copyright © 2015 Wolters Kluwer Health, Inc. All rights reserved.
