An Analysis of the Doctrine of presumed consent and the principles of required response and required request in organ procurement

Abstract

The transplantation process establishes a three-phase structure namely, procurement, preservation and allocation of human organs and tissue. These three phases are co-dependent upon the successful completion of each individual phase within that structure. This dissertation focus specifically on the first phase of the transplantation process and endeavours to analyse the doctrine of presumed consent as applied in the procurement of human organs and tissue. Thereafter, the focus point is directed upon organ procurement incentives such as the principle of required response and required request that ensure the effective application of these systems should be interconnected with organ procurement systems. Finally, a capita selecta of issues pertaining to the final two stages of the transplantation process are investigated and proposed problem areas are reflected upon. The doctrine of presumed consent as an organ procurement system proposes that individuals who fail to raise an objection in respect of organ donation during their lifetime, will upon death be presumed that they provided consent to the removal of their organs. This system operates in absolute contrast to the doctrine of informed consent as applied in South African law, establishes that an ommissio to act would constitute an implicit statement of informed consent. The application of the doctrine of presumed consent can be classified as either a hard application or a soft application. A strong application declares that upon death a who failed to raise an objection to organ donation will be considered to given consent to organ procurement and any interference by the next-of-kin are disregarded. The weak application functions in a similar way than the hard application, with the exception that the next-of-kin has the right to override the decision. This dissertation analyses whether the element of consent in the doctrine of presumed consent can be classified as a justification ground as the doctrine of informed consent of whether it infringes upon section 12(2)(b) of the South African Constitution (Act 108 of 1996). To establish the true nature of the doctrine of consent, specific reference is made the duty of disclosure that rested upon the health practitioner to inform patients about information about a proposed treatment. Arguments are raised that the nature, scope and accessibility of information about issues relating to organ donation will determine if informed consent is present in the doctrine of presumed consent. The introduction of the doctrine of presumed consent as organ procurement system could provide South Africa with an essential framework to increase organ procurement and awareness about organ donation provided that sufficient information can be accessed in an easy and effective manner. The following concepts are analysed in the dissertation: The doctrine of presumed consent The principle of required response The principle of required request The doctrine of informed consent Organ procurement incentives Routine salvaging Organ procurement systems Organ preservation and safeguarding Organ allocation systems Human Tissue and organs The moment of death