Another Matter of Life and Death

Received from the Departments of Anesthesiology and Biomedical History and Ethics, University of Washington, Seattle, Washington.A COMMUNITY hospital agrees to participate in organ harvest from non–heart-beating cadaveric donors (NHBCDs). Members of the anesthesiology department are informed that patients requiring life support will be transferred to the operating room, where an anesthesiologist will monitor them during preparation and draping for organ harvest. The anesthesiologist will discontinue life support and administer medications to keep the patient comfortable while he or she dies. Three minutes after asystole ensues, the anesthesiologist will pronounce the patient dead, and organ harvest will immediately begin.The anesthesiologists question the ethics of stopping life support and then harvesting vital organs. Some believe it is acceptable to discontinue life support and administer medications to stop respirations and hasten death. Many are resentful that an unpleasant task is being thrust onto them by other physicians in a manner reminiscent of “orders to nurses.” Most express bewilderment that the duties of discontinuing life support, caring for the dying patient, and diagnosing and pronouncing death should fall to an anesthesiologist. †Many anesthesiologists are uneasy about allowing organ harvest from a patient after withdrawal of life support. Anxiety stems from poor understanding or nonacceptance of ethical principles supporting vital organ donation and justifiable concerns regarding potential conflicts of interest that may arise during such donations. The above case demonstrates issues that are problematic with regard to end-of-life care. Some of the proposed actions are illegal or unethical.The purpose of this article is threefold: (1) to present legal and ethical issues concerning NHBCDs, (2) to discuss important aspects of NHBCD protocols, and (3) to assert that only physicians trained and experienced in caring for dying patients and withdrawing life support should participate in the care of an NHBCD.On August 9, 2002, the United Organ Sharing Network reported that 52,923 patients were awaiting kidney transplants, and 17,459 were awaiting liver transplants in the United States. The total number of kidney and liver transplants performed in the year 2000 was approximately 19,000. The number of patients awaiting kidney transplants has almost tripled, and the number of those awaiting livers has increased 10-fold since 1990, while kidney and liver donations have less than doubled. ‡Lack of public awareness does not explain the shortage of donations—surveys demonstrate that public awareness of the organ shortage is actually high. 1Incomplete acceptance of the concept of brain death and worries that physicians will place the needs of dying patients secondary to those of recipients are known to be significant impediments to donation. Efforts to increase donations, through required request, mandated choice, and presumed consent laws, have been resisted or have had minimal effect. 2–5One way to increase the organ supply is to rapidly harvest organs from patients who have undergone irreversible cardiopulmonary arrest. 6Because organs are removed after circulatory arrest, these donors are referred to as “non–heart-beating cadaver donors,” distinguishing them from donors who are brain dead but whose hearts continue to beat. Some authors estimate that NHBCDs would increase available organs by 20–50%. 6–8Others question these numbers because in a retrospective review, only 3 of 209 potential NHBCDs met criteria for medical suitability for organ donation prior to the decision to withdraw life support. 9Currently, only approximately 1% of all cadaver donors are NHBCDs. 10There is evidence that the public is reluctant to accept the use of NHBCDs, and that the concept may even negatively impact donations. More than 65.7% of people in one study were willing to become organ donors if declared brain dead, and up to 72.5% were willing to donate the organs of a loved one if they knew that the loved one favored donation. Far fewer were willing to donate as an NHBCD—47.3% for themselves, and 51.3% for loved ones. Reasons they gave included loss of a chance of recovery, the possibility that an error could be committed, and that it sounded like murder or suicide. 11The concept of NHBCDs is not new: Before establishment of brain death criteria, NHBCDs and living related donors were the only sources of transplantable organs; kidneys, for example, were usually harvested from cadavers after “uncontrolled” cardiopulmonary deaths. Development of brain death criteria made the procurement of organs from ventilated, heart-beating donors possible, and the use of NHBCDs fell into disfavor except in a few countries, such as Japan, where brain death criteria did not achieve social or legal acceptance until recently. 2,6,12NHBCDs were all but abandoned due to problems minimizing the interval between declaration of death and the removal, cooling, and preserving of organs— the “warm ischemia time.”12,13Renewed interest in NHBCDs lead to strategies to reduce warm ischemia time, such as preservation of organs in situ immediately following uncontrolled death or harvesting organs from NHBCDs at a time and place where death is “controlled.”2Studies demonstrate that such organs have similar viability to those procured from brain-dead donors. 14–17With in situ preservation, organs are preserved in the body immediately following uncontrolled death. A catheter is inserted via the femoral artery into the abdominal aorta, and an occluding balloon is inflated. Catheters may also be inserted through the abdominal wall. After death, the organs are immediately cooled by infusion of cold preservative solution into the abdominal aorta and peritoneal cavity. The body is then transferred to an operating room for organ harvest. 2,12In situ preservation must occur rapidly after cardiopulmonary arrest to be effective. It ideally involves advance consent from the patient or family for the insertion of cannulae under local anesthesia prior to death . However, many potential donors arrive in critical condition, unable to give consent. Physicians at the Regional Organ Bank of Illinois, after being refused permission in 35 cases, undertook preservative infusion without family consent, reasoning that it was nondeforming, was nonmutilating, and did not require consent. They then approached the families about organ donation, and six of seven consented. 2,13The ethics of performing invasive procedures in dying patients without consent are questionable because even the moral acceptability of performing invasive procedures on dead bodies without obtaining consent of the patient before death or consent of surrogates after death is doubtful—it may be disrespectful, potentially ignores family desires, and may foster undesirable attitudes among medical professionals toward dead and dying patients. 2,18–20In a 1994 survey, 71% of people opposed allowing physicians to undertake preservative infusion without family consent. 11Nevertheless, Florida, Virginia, and Washington, DC, legislators passed laws allowing in situ preservation without consent. 21–23This practice, even where legalized, still presents serious ethical questions regarding rights and wishes of donors and their spokespersons.The second strategy of controlling the time and place of death allows patients and families to consider organ donation after deciding to withdraw life-sustaining treatment and before death has occurred. 2This has several advantages. The decision to donate organs before death allows time for discussion, reflection, and informed consent. In addition, the time and place of death are “controlled,” and organ preservation and harvest can be planned to minimize warm ischemia time. Often, this involves withdrawing life-sustaining therapy from a patient in an operating room and harvesting organs immediately after death occurs. One of the earliest protocols for organ harvest after “controlled death” was developed at the University of Pittsburgh and is commonly referred to as the “Pittsburgh Protocol.”Legal developments in the United States over the past 50 yr permit the harvesting of organs after death from patients who wish to terminate life-sustaining medical treatments. These include (1) the Uniform Anatomic Gift Act of 1968, (2) development of new criteria for death and clarification of the rights of permanently unconscious patients, (3) development of the Uniform Determination of Death Act in 1981, and (4) precedents in case law allowing withdrawal of life-sustaining treatment.In 1968, the Uniform Anatomic Gift Act allowed patients over age 18 to designate that their organs be transplanted after they are legally dead. Next of kin were also given authority to permit or refuse donation. 24During the same year, the Ad Hoc Committee at Harvard Medical School, lead by Henry Beecher, M.D., Professor of Anesthesiology, developed criteria for brain death. The committee accepted two different criteria for declaring death: (1) irreversible cessation in cardiopulmonary function and (2) irreversible cessation of all brain function, including the cortex and brainstem. 25In 1981, the Uniform Determination of Death Act recognized both criteria for declaring death described by the Harvard Committee, 26,27and all states have laws or precedents recognizing both criteria. Therefore, once an NHBCD meets either cardiopulmonary or neurologic criteria for death, he or she can legally be used as a vital organ donor.The right to forgo life-sustaining treatments has been well recognized in the courts. Examples include the cases of Karen Ann Quinlan, Claire Conroy, and Nancy Cruzan. 26,28,29In 1976, the New Jersey State Supreme Court determined that Karen Ann Quinlan, a permanently unconscious woman, had the right to refuse life-sustaining medical therapy and that her rights could be implemented through surrogate decision-makers. In 1985, in the case of Claire Conroy, a woman with severe dementia, the New Jersey State Supreme Court determined that nutrition and hydration could be withdrawn from an incompetent patient (1) if it is clear that the patient would have refused the treatments under the circumstances involved, (2) if there is at least some evidence that the patient would have refused the treatment and the burdens clearly outweigh the benefits, or (3) if the net burdens markedly outweigh the benefits and continued treatment would be inhumane. In the case of Nancy Cruzan in 1990, the United States Supreme Court concluded that a constitutional right to refuse treatment exists and extends to a surrogate's interpretation of those wishes. 26,28–30All states now have laws recognizing the rights of patients to refuse life-sustaining treatment and allowing such wishes to be implemented through Durable Powers of Attorney, living wills, and surrogate decision-makers. 29,30Ethical arguments supporting the use of NHBCDs are straightforward, citing principles of respect for patient autonomy and beneficence.The principle of respect for patient autonomy recognizes that competent patients have the right to make informed and unencumbered choices regarding their bodies and lives. The principle is essential to ethical medical care of patients and is uniformly supported in the courts. 31Patients have the right to forgo medical therapy under most circumstances, even if that therapy would be life saving. They also have the right to offer their organs for transplantation, irrespective of the circumstances of their death.The need to make serious medical decisions frequently arises at times when patients are not capable of exercising autonomy because of illness, alterations in mental status, or unconsciousness. Surrogate decision-makers or legal instruments, such as durable powers of attorney and living wills, are means through which patients can record their wishes during a time of lucidity for use when they can no longer speak for themselves. When an unconscious patient has expressed a desire to forgo or terminate life-sustaining treatment and to donate organs through a surrogate decision-maker or legal document, that decision carries the same moral and legal authority as the patient's own words would, if he or she could express them. 30,32,33Beneficence is the principle “doing good” for this particular patient and, secondarily, for society as a whole.Life-sustaining treatment can cause unbearable burdens, such as prolonged physical, emotional, and psychological suffering; social and physical isolation; loss of sense of self; loss of dignity and independence; and financial impoverishment. Patients may decide to forgo medical treatments, feeling that the “benefit” of prolonging life is outweighed by these other burdens. The ethical principles of beneficence and nonmaleficence (“do no harm”) support withdrawal of life-sustaining treatment in accordance with patient wishes in such circumstances, provided that patient suffering is avoided and patient dignity is preserved as much as possible. Withdrawal of life-sustaining treatment is never to be construed as an excuse not to “care” for the patient. Relief of suffering and preservation of the dignity of dying patients requires extraordinary effort and expertise on the part of healthcare providers. 34,35Donating vital organs at the time of death may benefit the patient and his or her loved ones through feelings of altruism, a sense of community, belief that the quality of life of others will be improved, and mitigation of grief. The donation of vital organs also benefits society by providing a scarce and valuable resource and promoting values of generosity and community participation.Ethical arguments against the use of NHBCDs are complex. They include the principle of nonmaleficence, preservation of values such as patient–doctor trust, respect for human dignity and professionalism, “slippery-slope” concerns, and the presence of conflicts of interest.The flip side of the coin of beneficence (“do good”) is nonmaleficence (“do no harm”). Some physicians believe that withdrawal of life support constitutes an overriding harm because it deprives the patient of life. Public sentiment and most medical ethicists disagree. 36It is widely accepted that withdrawal of life-sustaining treatments under appropriate circumstances is ethical, appropriate, and even kind. If extreme care is not taken, however, the principle of nonmaleficence can be violated during withdrawal of life-sustaining treatment, death, and organ harvest. The very decision to forgo life support may be biased by the prejudices of the physicians involved. As Shaw states:“If the person in need of organ transplantation is younger, more attractive, or in some way seems more deserving than another critically ill patient, then the conclusion that one patient's condition is hopeless can be tainted by an understanding of the tremendous hope organ availability holds for another.”37Physical suffering can potentially be increased by preparations for organ harvest, such as placement of catheters prior to death for in situ organ preservation or transfer of the patient from the intensive care unit (ICU) to an operating room. Preparations for organ harvest could deny the patient the presence and support of loved ones during death. Families may be denied the benefits of being able to provide support and comfort to a loved one while he or she dies. 7Care of the dying patient can be manipulated and potentially compromised if the transplant team's concerns about organ viability take precedence. Physicians can cause increased patient suffering by inappropriately withholding sedative or analgesic medication to avoid the appearance of euthanasia. Alternatively, some physicians may be tempted to use those same medications unethically to hasten death when a patient does not die promptly after withdrawal of life support. 38Administration of medications in anticipation of or to relieve patient suffering, i.e. , the administration of sedatives or narcotics to relieve symptoms of anxiety, dyspnea, or pain, is acceptable and required, even if a side effect of the treatment is death instead. However, administering such medications in the absence of patient suffering , such as administering a narcotic to stop respirations in an unconscious patient, is active euthanasia—a practice that is illegal in the United States and considered unethical. 29,39Some NHBCD protocols allow the administration of medications to donors prior to death, such as heparin and phentolamine, to enhance organ viability, 27,37,40even though it does not benefit the donor and could potentially hasten death. Patients with elevated intracranial pressure or intracranial hemorrhage might experience lethal increases in pressure or bleeding, for example. 27According to the principle of “double effect,” acts intended to produce morally “good” effects, such as analgesia, are permissible even if they produce morally “bad” effects, such as causing death, but only if the good effect is the only one that is intended . Hastening death in the process of obtaining vital organs is considered by most to be maleficent to the patient, harmful to the doctor–patient relationship, and potentially detrimental to organ transplant programs. 41It harms the patient by placing his or her needs second to the discomfort or impatience of the medical team and the needs of the organ recipient. It harms the doctor–patient relationship by violating trust; patients increasingly doubt that doctors will do what is best for them and not place the interests of someone else first. 38It harms transplant programs by justifying concerns that the needs of dying patients will take back seat to the economic and professional pressures on physicians and hospitals to perform transplantations.There is risk of loss of dignity to the dying patient if the focus of the healthcare team is shifted from them to the transplantation process and the recipients. This trivializes the dying process and transforms the patient from a person with his or her own intrinsic value into a mere commodity through which other patients can be treated. 20,42Finally, there is risk of harm to the professional image of doctors, who must avoid being perceived as hovering over dying patients, ready to snatch kidneys and livers, literally before the corpses have grown cold.Changes in medical practice involving ethical issues are inevitably contested with slippery-slope arguments. I will review two major types of slippery-slope arguments, the conceptual (or logical) and the pragmatic (or psychological–sociological) slippery slopes 31,43,44and then discuss examples of how psychological–sociological slippery-slope arguments in particular are applied to NHBCDs.In the logical slippery-slope argument, morally acceptable action A is not logically distinguishable from morally questionable action B. Allowing A must lead to logical acceptance of B, and therefore, A should not be allowed. Arguments against allowing withdrawing of life-sustaining medical therapy, for example, are often based on a logical slippery-slope argument that “letting die” is no different from active euthanasia, and allowing the former must also permit the latter. The fact that withdrawal of life support and active euthanasia share some characteristics seems to lend credence to the argument. Not only is the actual outcome (death) indistinguishable in each case, but the intended outcome is also In addition, active euthanasia withdrawal of life-sustaining treatments by chance or require of active euthanasia, as the argument would be an undesirable and a logically of withdrawal of life support. slippery-slope arguments are however, because they on an and usually that no significant exists to A and not B. usually can be between two similar actions such that one can be while another is allowed. example, the concept of “letting die” involving the of that death, while active euthanasia involving that cause a patient's death. United this particular and have withdrawal of life support but have not active euthanasia. pragmatic slippery-slope argument recognizes while of law may be in human human have a both and to allow and them the to and can and make but might not and psychological the right social or psychological the morally justifiable A to accept the morally questionable B, even if it is logically from A may also condition to the and the laws to to that present many potential pragmatic slippery-slope such as the of the of death, the of when cardiopulmonary arrest is the question of who might be used as an and the economic pressures of end-of-life care and the and place of withdrawal of life support to organ purpose is to the time of death. If the dying process is prolonged after withdrawal of life-sustaining treatment, will it some be acceptable to administer to hasten an death and organ is this different from withdrawing treatment and for death to and one person must not be to provide organs for and organ until after the donor has been declared when can be that either neurologic or cardiopulmonary criteria for death has been met and that neurologic or cardiopulmonary function has been the process of there are in which loss of cardiopulmonary or neurologic function is not and do arrest if could be but no are to is arrest only when circulatory function be even if are in a few cases in which transplantation has been NHBCDs, the has function in a after cessation of function in a donor has been Pittsburgh requires a after cardiopulmonary arrest before organ harvest, that a of circulatory function after arrest. will not be even if could be it will not be . the arrest is of the interval has been because the of has not been and because the proposed interval was based on only case authors assert that time should following arrest not only to but to irreversible loss of brain function as proposed have The of cardiopulmonary arrest as a time for declaring death, this interval has also been by the on cardiopulmonary function has been after or more of circulatory arrest, that is of on as a interval to but did not supporting authors have the transplant community of the between life and death it for organ the one of for non–heart-beating donation may be or and may require life-sustaining medical treatments as as balloon and to use types of as the dignity and autonomy of could potentially be compromised to organs for has been on the part of medical professionals toward patients who are perceived as or are have when the quality of life of patients, physicians much than do the patients themselves. it has been that of of and of would on their prejudices when it to life-sustaining , and deny life support to patients with even if patient wishes were about patients, such as the lead medical professionals to such and families for non–heart-beating organ donations more than others with be willing to accept surrogate permission for or patients to donate even though their wishes about organ donation are not and never were Some physicians have proposed permanently unconscious patients to organs for may be at risk that a in will allow to withdrawing medical treatments and them as organ donors without their express are to make that might keep of slippery slopes concerning NHBCDs. NHBCD requires life-sustaining support, often in the of end-of-life care. care up to of all healthcare and of all of all in the year of life are in the of therapy are also high. that care might in of only in the year of the of with those of The of kidney transplantation is to from the but that while one approximately for kidney transplants, during the same another reported of approximately transplants, were reported by one as approximately and by other during the same were between and of professional times the NHBCD programs provide a way to of end-of-life care by promoting withdrawal of life-sustaining treatments to allow organ donation and support a in organ such will one important ethical and accept what would be morally questionable about medical treatment of the and economic pressures regarding end-of-life care are not to NHBCDs, but NHBCDs these issues and the in which they might attitudes and medical in end-of-life As in medical practice, slippery slopes are not by to significant medical slippery-slope concerns are in the to need to benefits are to harms can and be able to make important and that are clear and to the and values must questions about NHBCDs are from but transplantation have the and are in the of through protocols a practice that still serious ethical In the University of Pittsburgh for organs from cadavers dead cardiopulmonary criteria. they their experience and to their Pittsburgh has been in as and legally acceptable for the organ and as by most that have NHBCD protocols some of the Pittsburgh a of which is provided in study how some have NHBCDs is organ procurement