To the Editor: In their recent article,1 Richards and Rogers connect some ideas about patient autonomy, non-maleficence and laws relating to consent with specific antemortem activities, but their main “justification” for these activities is a practice termed donation after cardiac death (DCD). This practice has been introduced in the hope of increasing the availability of organs for transplant. It involves removing cardiorespiratory support and withholding resuscitation, then harvesting organs when cardiac death occurs.2,3

As illustrated by the New South Wales Health DCD guidelines (Box), DCD represents a significant shift in practice — from maintaining cardiorespiratory support for the purpose of organ preservation after an acutely injured patient has died (the brain death scenario), to removing life support with the explicit intention of allowing expeditious death and organ removal (the cardiac death scenario).3

There are two facts of clinical practice that I suggest should be taken into account in the ethical or legal justification of any DCD-related activity and also before the “re-introduction of expanded use of DCD” and “introduction of a NSW DCD program” mentioned in the NSW guidelines.3 The first is medical: the earlier a prognostic call is made in relation to catastrophic injury, the greater the chance it could be wrong. The second is psychological: doctors treating severely injured patients are aware of the need for organs in good condition and the importance of opportunity, and generally appreciate that organ transplant programs are one way that good can come out of tragedy. These simple facts are ethically and legally problematic because they could increase the probability of overcalling the extent and permanency of injury in an acutely injured patient, which in turn increases the probability of the patient being denied his or her chance to survive.

Accordingly, any ethical or legal justification for submitting an injured patient to any antemortem activity relating to harvesting their organs after death — including withdrawing cardiorespiratory support and withholding resuscitative efforts — requires safeguards that protect the treatment paradigm for the patient. This requires two things: demonstrating that the care of the patient is not being compromised by his or her donor status; and making consent (in the full sense of the term) inviolate. I would argue that the former is impossible in the acute severe injury scenario of DCD, and the latter requires a legal step between end-of-life decisions and end-of-life action of the kind referred to by Justice O’Keefe in Northridge v Central Sydney Area Health Service, with respect to withdrawal of life-sustaining treatment and medical support from patients in a persistent vegetative state.4 As O’Keefe noted of such cases in the United Kingdom, where there are clear guidelines regarding lawful withdrawal of treatment: