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Transplantation of the heart after circulatory death of the donor: time for a change in law?

James Tibballs and Neera Bhatia
Med J Aust 2015; 203 (6): 268-270. || doi: 10.5694/mja15.00295

Summary

  • Australia has a shortfall in donated hearts for transplantation.
  • Hearts are usually procured from brain dead donors, but procurement from circulatory dead donors is a potential additional source.
  • However, heart transplantation after circulatory death of the donor may not conform to the dead donor rule.
  • An amendment in law is required to permit heart procurement for transplantation after circulatory death.

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  • James Tibballs1
  • Neera Bhatia2

  • 1 Royal Children’s Hospital, Melbourne, VIC
  • 2 Deakin University, Melbourne, VIC

Correspondence: james.tibballs@rch.org.au

Competing interests:

No relevant disclosures.

  • 1. Australia and New Zealand Organ Donor Registry. www.anzdata.org.au/anzod/updates/anzod2005summary.pdf (accessed Jul 2015).
  • 2. Australia and New Zealand Organ Donor Registry. Monthly report on deceased organ donation in Australia. December 2014. www.anzdata.org.au/anzod/updates/anzod2014summary.pdf (accessed Jul 2015).
  • 3. Australian and New Zealand Organ Donor Registry. 2014 annual report. http://www.anzdata.org.au/anzod/v1/AR-2014.html (accessed Jul 2015).
  • 4. Tibballs J. The non-compliance of clinical guidelines for organ donation with Australian statute law. J Law Med 2008; 16: 335-355.
  • 5. Tibballs J. A critique of the apneic oxygenation test for the diagnosis of “brain death”. Pediatr Crit Care Med 2010; 11: 475-478.
  • 6. Moers C, Leuvenik HGD, Ploeg RJ. Donation after cardiac death: evaluation of revisiting an important donor source. Nephrol Dial Transplant 2010; 25: 666-673.
  • 7. de Vries EE, Snoeijis MG, van Heurn E. Kidney donation from children after cardiac death. Crit Care Med 2010; 38: 249-253.
  • 8. Australia and New Zealand Organ Donor Registry. Monthly report on deceased organ donation in Australia. June 2015. www.anzdata.org.au/anzod/updates/ANZOD2015summary.pdf (accessed Jul 2015).
  • 9. Australian Government Organ and Tissue Authority. National protocol for donation and cardiac death. http://www.donatelife.gov.au/national-protocol-donation-and-cardiac-death (accessed Jun 2015).
  • 10. Gries CJ, White DB, Truog RD, et al. Ethical and policy considerations in organ donation after circulatory determination of death. Am J Respir Crit Care Med 2013; 188: 103-109.
  • 11. Australian Government Organ and Tissue Authority. OTA congratulates St Vincent’s Hospital Sydney on Australia’s first donation after circulatory death heart transplant. 24 Oct 2014. http://www.donatelife.gov.au/ota-congratulates-st-vincent%E2%80%99s-hospital-sydney-australia%E2%80%99s-first-donation-after-circulatory-death (accessed Aug 2015).
  • 12. St Vincent’s Hospital Sydney. St Vincent’s Hospital Sydney, Australia transplants first circulatory death human heart [media release]. 24 Oct 2014. http://www.donatelife.gov.au/sites/default/files/St%20Vincent's%20media%20release.pdf (accessed Aug 2015).
  • 13. Potts M, Byrne PA, Evans DW. Infant heart transplantation after cardiac death: ethical and legal problems. J Clin Ethics 2010; 21: 224-248.
  • 14. Boucek MM, Mashburn C, Dunn SM, et al. Pediatric heart transplantation after declaration of cardiocirculatory death. N Engl J Med 2008; 359: 709-714.
  • 15. Carcillo JA, Orr R, Bell M, et al. A call for full public disclosure and moratorium on donation after cardiac death in children. Pediatr Crit Care Med 2010; 11: 641-643.
  • 16. Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129.
  • 17. Reid v Reid (1979) 1 NZLR 572.
  • 18. Bernat JL. How the distinction between “irreversible” and “permanent” illuminates circulatory-respiratory death determination. J Med Philos 2010; 35: 242-255.
  • 19. Kerridge I, Lowe M, Stewart C. Ethics and law for the health professions. 4th ed. Sydney: Federation Press, 2013.

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access_time 03:05, 21 September 2015
Andrew Turner

Response to Tibballs and Bhatia on Behalf of the Australian and New Zealand Intensive Care Society
The arguments of Tibballs and Bhatia1 concerning the legality and moral legitimacy of organ donation after circulatory death (DCD) are neither novel nor compelling. The semantic inadequacy (that no prospective definition of ‘irreversibility’ is possible) of the (US) Uniform Definition of Death Act and similar (Australian) acts, is well reported e.g. 2-4. Something can only be said to have been, in retrospect, ‘irreversible’, after all possible reversal strategies have failed. In the circumstance of possible DCD, such strategies (perhaps even extracorporeal membrane oxygenation after very prolonged CPR5) would be morally repugnant and contrary to acceptable clinical practice. Australasian DCD practice is consistent with many professional standards, requiring absence of responsiveness, breathing and circulation for not less than two minutes before death is determined to have occurred. The ability to restore cardiac function, including in subsequent heart transplant recipients , does not invalidate such a clinical practice as the legal issue is the death of the donor, not the post-mortem function of any transplanted organ. We agree with the authors that the statutory definition of death in most Australian jurisdictions (but not in New Zealand or WA) may be semantically inadequate, but their proposal to redefine circulatory death as “cessation of circulatory function with cessation of higher brain function” is also inadequate. If “irreversibility” of “cessation of higher brain function” is required this would mandate the determination of brain death and if not required, this criterion is redundant as “cessation of higher brain function” invariably accompanies “cessation of circulatory function”.
1) Tibballs J, Bhatia N. Transplantation of the heart after circulatory death of the donor time for a change in law? Med J Aust. 2015 Sep 21;203(6):268-70.
2) Cole D. Statutory definitions of death and the management of terminally ill patients who may become organ donors after death. Kennedy Inst Ethics J. 1993 Jun;3(2):145-55
3) Whetstine L, Streat S, Darwin M, Crippen D. Pro/con ethics debate: when is dead really dead? Crit Care. 2005;9(6):538-42
4) Bernat JL. How the distinction between “irreversible” and “permanent” illuminates circulatory-respiratory death determination. J Med Philos. 2010 Jun;35(3):242-55
5) Kelly RB, Porter PA, Meier AH, Myers JL, Thomas NJ. Duration of cardiopulmonary resuscitation before extracorporeal rescue: how long is not long enough?
ASAIO J. 2005 Sep-Oct;51(5):665-7

Competing Interests: Associate Professor Turner is State Medical Director for DonateLife Tasmania

Assoc Prof Andrew Turner
President Australian and New Zealand Intensive Care Society

access_time 12:25, 22 September 2015
Andrew McGee

Donation after circulatory death: no change in law required

The legal position in Australia in respect of circulatory death is that death is ‘the irreversible cessation of the circulation of blood of the person’.1

Tibballs and Bhatia assume that ‘irreversible’ has a single meaning.2 This is not so. It can either refer to cases where auto-resuscitation is no longer possible, or to cases where both auto-resuscitation and resuscitation via cardio-pulmonary resuscitation (CPR) are no longer possible. A court considering manslaughter will examine both these meanings, and not merely the impossibility of resuscitation via CPR. It will then take into account the meaning that applies to the case in question, as determined by medical practice.3

When declaring death in cases where CPR is not appropriate, doctors don’t need to wait until the time at which resuscitation via CPR is no longer possible. The time at which a 92 year old lady with a do not resuscitate decision could theoretically be brought back to life by CPR is simply not relevant.

It is because of cases like this, and not merely organ donation cases, that death is understood as the permanent cessation of circulation in any relevant circumstance. ‘Relevant circumstance’ refers either to cases where only auto-resuscitation needs to be excluded, or cases where resuscitation by CPR also needs to be excluded.4

We should remember what Eugène Bouchut first proposed in 1846:4 5 if, in the absence of resuscitation attempts and after listening to the heart for five minutes, there are no heart sounds, it is safe to declare death.


1. Criminal Code Act 1995 (Cth) s 4(1) (Dictionary attached to Sch 1, the Criminal Code); Transplant and Anatomy Act 1978 (ACT) s 45(1); Criminal Code Act 2002 (ACT) s 3 (Dictionary attached to the Criminal Code); Human Tissue Act 1983 (NSW) s 33; Transplantation and Anatomy Act (NT) s 23; Transplantation and Anatomy Act 1979 (QLD) s 45; Definition of Death Act 1983 (SA) s 2; Human Tissue Act 1985 (SA) s 27A; Human Tissue Act 1982 (Vic) s 41; Interpretation Act 1982 (WA) s 13C (note the authors did not locate this section in their research, incorrectly claiming that circulatory death is not defined in WA legislation).
2. Tibballs J, Bhatia N. Transplantation of the heart after circulatory death of the donor: time for a change in law? Med J Aust 2015; 203:268-270.
3. Stock v Frank Jones (Tipton) Ltd [1978] 1 WLR 231. Gardiner D, Shaw D. Time to Diagnose Death in Modern Hospital Practice. Funct Neurol Rehabil Ergon 2014; 4(2-3):107-111.
4. McGee A, Gardiner D. Donation after Circulatory Determination of Death: Some Replies to Recent Criticisms. J Med Philos (forthcoming).
5. Bouchut E. Traité des signes de la mort et des moyens de prévenir les enterrements prématurés. 1849. Paris: J.B. Baillière.

Competing Interests: No relevant disclosures

Dr Andrew McGee
Queensland University of Technology

access_time 04:38, 23 September 2015
George Skowronski

Tibballs and Bhatia (1) discuss the legal and ethical difficulties presented by current Australian legislation in relation to the procurement of donor hearts for transplantation, under the current Donation after Cardiac Death (DCD) guidelines. What they fail to point out is that these issues present a much broader problem than just cardiac donation. If, as the authors argue, and I agree, DCD donors cannot meet the definition of circulatory death because their hearts are capable of being resuscitated after a few minutes of asystole, it surely follows that the dead donor rule precludes the procurement of any organs or tissues for transplantation, not just the heart.
The authors’ proposal of a legislative change to restrict the irreversibility requirement to brain function will not solve the problem, because we cannot guarantee the complete irreversibility of brain non-function after a few minutes of asystole either. Indeed, as the authors admit, even brain death is problematic in this regard.
Rather than continuing to stretch the definition of death beyond social norms in order to meet the requirements of transplantation, the only real solution is to revisit the dead donor rule itself, and this is beginning to happen.(2) Until we do this, DCD will remain on ethically shaky ground.

1. Tibballs J, Bhatia N. Transplantation of the heart after circulatory death of the donor: time for a change in law? Med J Aust 2015; 203(6): 268-270.
2. Miller FG, Truog RD, Brock DW. The DDR: Can It Withstand Critical Scrutiny? Journal of Medicine and Philosophy 2010; 35: 299–312.


Competing Interests: No relevant disclosures

Assoc Prof George Skowronski
St George Hospital, Sydney

access_time 08:29, 29 September 2015
Greg Snell

Transplantation saves lives. In Australia, donation of organs for transplantation occurs within a tightly regulated legal and ethical framework that reflects Australian law and community values. Donation specialists work within this framework and The Donatelife network and hospital staff record and audit every case. Transplant teams do not influence or interfere with these processes, but are very aware of their legal, ethical and societal responsibilities to donors and recipients.
Tibbals etal have misinterpreted the process of donation after circulatory death (DCD)1. DCD proceeds only when a potential donor’s specialists and family agree that due to irreversible organ failure death is inevitable, that organ donation is appropriate, and that artificial life supports should be withdrawn. Thereafter, donation may only proceed when circulation ceases within a pre-specified timeframe. As the intent in withdrawing support is that life may end, restoration of support is inappropriate. Removing organs for transplantation in this context, including the heart2, is in complete accordance with law and NSW DCD Guidelines3 that state “there are no legal barriers to using hearts removed from DCD donors for transplantation”.
Tibbals1 and subsequent media reports risk undermining the solidarity of legal, ethical, medical and community values underpinning past, present and future public donation efforts. The legal, donation and transplant communities will continue to work on definitions, processes and audits to safeguard the rights and health of all Australians. However, be in no doubt, all deceased donors are correctly legally certified as dead and transplantation within Australia is conducted in accordance with law.

1. Tibballs J and Bhatia N. Transplantation of the heart after circulatory death of the donor: time for a change in law? Med. J. Australia 2015;203:268-270
2. Dhital KK, Iyer A, Connellan M et al. Adult heart transplantation with distant procurement and ex-vivo preservation of donor hearts after circulatory death: A case series. Lancet. 2015 Jun 27;385(9987):2585-91.
3. GL2014_008 Organ Donation After Circulatory Death: NSW Guidelines.

Competing Interests: No relevant disclosures

Prof Greg Snell
The Alfred Hospital, Victoria

access_time 01:16, 30 September 2015
Wendy Rogers

Tibballs and Bhatia claim that heart transplantation after death of the donor may not comply with the dead donor rule. The relevant Acts require irreversible cessation of the circulation to pronounce death. Tibballs and Bhatia maintain that as the transplanted heart functions in the recipient, circulation in the donor has not irreversibly ceased.

This claim contains errors of logic as well as errors of law. It is mistaken to equate failure of circulation with cessation of cardiac function. The heart is an integral part of intact circulation in a living person, but circulation relies upon more than a functioning heart. Patients considered for DCD are dying due to catastrophic injuries incompatible with ongoing life. The cessation of the circulation is the result of these injuries, and occurs not because the heart itself is necessarily terminally damaged, but because the complex system that maintains circulation has failed.

Regarding the law, the interpretation of the Act presented by Tibballs and Bhatia is restrictive and overlooks the fundamental intent of the Parliament which is to assist with defining the death of particular patients; the definition of death does not address the question as to whether it is possible to ‘reanimate’ organs elsewhere. The key question posed by the legislation is: can circulation be reversed in this patient? And the answer is clearly no as the system as a whole had failed. Therefore, there is irreversible cessation of circulation of blood in the body, and no violation of the dead donor rule.

Competing Interests: Prof Rogers has served on the NHMRC National Donations after Cardiac Death Protocol Development Working Party; been a member of the Steering Committee of Australians Donate National Organ Donation Collaboratives Planning Group and co-chaired the AHEC working group responsible for the 2007 NHMRC Ethical Guidelines on Organ and Tissue Donation for Transplantation.

Prof Wendy Rogers
Macquarie University

access_time 01:17, 30 September 2015
Wendy Rogers

Tibballs and Bhatia claim that heart transplantation after death of the donor may not comply with the dead donor rule. The relevant Acts require irreversible cessation of the circulation to pronounce death. Tibballs and Bhatia maintain that as the transplanted heart functions in the recipient, circulation in the donor has not irreversibly ceased.

This claim contains errors of logic as well as errors of law. It is mistaken to equate failure of circulation with cessation of cardiac function. The heart is an integral part of intact circulation in a living person, but circulation relies upon more than a functioning heart. Patients considered for DCD are dying due to catastrophic injuries incompatible with ongoing life. The cessation of the circulation is the result of these injuries, and occurs not because the heart itself is necessarily terminally damaged, but because the complex system that maintains circulation has failed.

Regarding the law, the interpretation of the Act presented by Tibballs and Bhatia is restrictive and overlooks the fundamental intent of the Parliament which is to assist with defining the death of particular patients; the definition of death does not address the question as to whether it is possible to ‘reanimate’ organs elsewhere. The key question posed by the legislation is: can circulation be reversed in this patient? And the answer is clearly no as the system as a whole had failed. Therefore, there is irreversible cessation of circulation of blood in the body, and no violation of the dead donor rule.

Competing Interests: Prof Rogers has served on the NHMRC National Donations after Cardiac Death Protocol Development Working Party; been a member of the Steering Committee of Australians Donate National Organ Donation Collaboratives Planning Group and co-chaired the AHEC working group responsible for the 2007 NHMRC Ethical Guidelines on Organ and Tissue Donation for Transplantation.

Prof Wendy Rogers
Macquarie University

access_time 02:54, 10 October 2015
Ari R Joffe

I. The Problem:

Tibballs and Bhatia have described a problem: death is irreversible. Common usage of the term ‘death’ includes that death is not reversible: we can resuscitate from the process of dying, but we cannot resurrect from the state of death. Irreversible (‘not capable of being reversed’) is different from permanent (‘will not be reversed’). Regardless of how often it is repeated/insisted that “permanent is a construal of irreversible”; the fact is, it is not. After even 10 minutes of absent circulation, that absence of circulation is not irreversible. Bernat, Capron, and other members of the President’s Commission have unambiguously written that DCD does not comply with the intent of the UDDA: death is irreversible (not capable of being reversed) [1].

Flaws in the assertion that brain death (BD) is death are also insurmountable. Death is a biological event that marks the time that an organism is no longer functioning as a whole: the organism is no longer resisting entropy, and is irreversibly disintegrated, and disintegrating. Irreversible absence of circulation is a criterion for this, but BD is not. Emergent functions of the integrated organism in BD include: growth, puberty, fighting infections, assimilating nutrients, excreting wastes, and metabolic regulation. The mistake was to assume that the brain is the supreme integrator of the organism, or even that there is an integrator necessary for emergent functions (of the organism as a whole) at all [2].

We keep insisting that both DCD and BD donors are dead, when they are not.

References:
1. Joffe AR, Carcillo J, Anton N, DeCaen A, Han YY, Bell MJ, Maffei FA, Sullivan J, Thomas J, Garcia Guerra G. Donation after cardio-circulatory death: a call for a moratorium pending full public disclosure and fully informed consent. Phil Ethics Humanities Med 2011;6:17.
2. Joffe AR. The neurological determination of death: what does it really mean? Issues Law Med 2007;23(2):119-140.

Competing Interests: No relevant disclosures

Dr Ari R Joffe
University of Alberta

access_time 02:55, 10 October 2015
Ari R Joffe

II. Potential Solutions:

DCD/BD donors have a dismal prognosis: they do not have a quality of life that is of benefit to them, and it is in their best-interests to allow death to occur. If deception is to be avoided, options are:

1. Disallow vital organ donation [OD]: this is not desirable.

2. Allow OD in the setting of DCD and/or BD: this requires a change in law to make violating the dead donor rule permissible.

3. Allow OD in patients meeting the standard of BD and/or DCD: with consent, these patients could be taken to the operating room, given full anesthetic, and have vital organs removed (during ongoing circulation). This too requires a change in law to make violating the dead donor rule permissible in this circumstance.

This may seem alarming. But we already carry out “justified killing” when we withdraw life-support (WD) [3]. We, with consent, WD (an action) and accept the consequence (death) of this action (the cause). The action causes death, and because this is in the best-interests of the patient and done with consent, this is justified. If this exact same action (WD) is done without consent, and causes the exact same consequence (death), we call this non-justified killing (murder). For OD we would similarly, with consent, perform an action (organ procurement) and accept the consequence (death) as in the best-interests of the patient (justified) [3].

More discussion is required. But I agree with Tibballs and Bhatia: continuing the deception is not a good solution.

References:
3. Miller FG, Truog RD. Rethinking the ethics of vital organ donations. Hastings Center Report 2008;38(6):38-46.

Competing Interests: No relevant disclosures

Dr Ari R Joffe
University of Alberta

access_time 03:32, 12 October 2015
James Tibballs

Reply to Turner and Erickson:

Thank you for your comments.

In contrast to your claim, we did not address any moral legitimacy of organ donation after circulatory death. Our argument was entirely legally based which you have not countered. We disagree that the subject of our article has been “well reported”. Indeed, arguments presented elsewhere are flawed. For example, there is no legal difference between “irreversible cessation” and “permanent cessation” of circulation. To claim otherwise is fiction.

In your reasoning you have committed an ignoratio elenchi. You claim a concept was introduced by us then claimed it was false – which is a “red herring” if the intention was to divert our argument. In contrast to your claim, we did not suggest that there should be “irreversibility” of “cessation of higher brain function” to be required to accompany a redefinition of circulatory death. We limited our suggestion to “cessation of higher brain function” and thus absence of any prospect of consciousness - which could be determined for example by absent somato-sensory evoked potentials, silent electroencephalogram or absence of cerebral perfusion determined by radionuclide scanning. Moreover, contrary to your suggestion, this would not represent determination of brain death since legislation requires irreversible cessation of not just cerebral function but of all brain function, a concept which we add in passing, is eschewed in the guidelines of the organization (ANZICS) which you represent.

Competing Interests: No relevant disclosures

Assoc Prof James Tibballs
Royal Children's Hospital Melbourne

access_time 03:37, 12 October 2015
James Tibballs

Reply to McGee

We thank you for pointing out that WA does indeed have a legal definition of circulatory death but it is in fact s 13C of the Interpretation Act 1984.

Contrary to your claim, we have not at all assumed that “irreversible” has a single meaning but have argued on a legal basis that indeed it does have such. We have considered both a literal and purposive sense of the word in legislation as suggested by your British reference (Stock v Frank Jones (Tipton) Ltd [1978] 1 WLR 231). The same principles to determine the meaning of a word in legislation are to be found in Australian case law which we used in our argument.

We do agree however with your inference that a Court needs to consider the meaning in the context in which it is interpreted by the transplantation sector. Neither the legislation per se nor for example the second reading of the Victorian Human Tissue Bill bestow any meaning on the word other than its common meaning defined in dictionaries. Instead, the Bill mentions that the law will in the future have to deal with situations which “could happen if the new medical knowledge is not used in a responsible manner” (Hansard, 1982, vol 367, p. 1061) which we posit is precisely the current emerging practice of heart procurement for transplantation after “circulatory death”.

Competing Interests: No relevant disclosures

Assoc Prof James Tibballs
Royal Children's Hospital Melbourne

access_time 03:56, 12 October 2015
James Tibballs

Reply to Skowronski

We thank you for constructive contribution to the debate.

However we did not argue on an ethical basis, it was, but not merely, a legal argument. It may be the ethical case that no organs should be procured after “circulatory death” but we did not argue that case. We considered only cessation of the circulation, which undeniably means cessation of cardiac function, as the subject of legislation. It may be ethical to discard the “dead donor rule” but since ethics cannot trump the law, it is necessary to amend the law first before considering ethical questions.

Contrary to the suggestion, we did not argue for the irreversibility of brain non-function as a component of the definition of circulatory death. We argued for the cessation of higher brain function to be incorporated into legislation. We did not mention total brain function or any aspect of irreversible non-function of the brain.

With the invention of restoration of function of an arrested procured donor heart, we now have an innovative medical technique to enable its transplantation. Now we need appropriate innovative legislation to sanction a practice not envisaged by previous legislators.

Competing Interests: No relevant disclosures

Assoc Prof James Tibballs
Royal Children's Hospital Melbourne

access_time 03:58, 12 October 2015
James Tibballs

Reply to Snell and Chadburn

We are quite aware of the process of donation after circulatory death. One of us has instigated, directed and participated regularly in organ procurement by this process since 2010, but we have argued that heart procurement for transplantation after circulatory death does not conform to present statute law. We infer that this practice should not be undertaken until our legal system, either by legislation or common law, sanctions it to reduce legal risk to personnel involved.

We strongly disagree that drawing public, legal and medical attention to the practice is likely to undermine public donation of organs. On the contrary, we maintain that if the law is amended, society will reap the benefits of increased donation resulting from greater trust in our medical system which unfortunately at the moment relies upon a patently false and concocted interpretation of the word “irreversible”.

Competing Interests: No relevant disclosures

Assoc Prof James Tibballs
Royal Children's Hospital Melbourne

access_time 04:01, 12 October 2015
James Tibballs

Reply to Rogers and Richards

Thank you.

It is necessary to explain basic physiology and to expound further our legal criticism of the practice of heart transplantation after DCD.
You have confused the structure of the circulation and its function. In the 1600s, William Harvey discovered that the rhythmic pumping action of the heart and action of its valves alone were responsible for the circulation of blood in living animals. No additional motor force has since been discovered. Cessation of this function is the condition required for procurement of organs. When doctors determine whether circulation has or has not ceased in the setting of determining cessation of the circulation prior to DCD, they observe and palpate for a pulse which is obviously a consequence of heart function, as advised by the ANZICS guidelines. Of course, the “circulation” is composed anatomically of numerous components in addition to the heart and the blood itself, but “cessation of circulation” in legislation means the cessation of the flow of blood, which is imparted by the heart, not anything else. “Cessation of the circulation of blood” in legislation means arrest of the pumping action of the heart. The claim that it means anything else is simply obfuscatory nonsense.

The very fact that a non-functioning procured donor heart can be made functional for a recipient must, ipso facto, mean that it had not irreversibly ceased function in the donor. The usual reason that the heart had ceased function in the donor is not due to “failure as a whole of the system”, but usually due to intentional withdrawal of life-supporting treatment (mechanical ventilation) which is also obviously reversible. You advance no logical criticism of our legal argument.

Competing Interests: No relevant disclosures

Assoc Prof James Tibballs
Royal Children's Hospital Melbourne

access_time 01:19, 19 October 2015
James Tibballs

Dr Joffe widens debate by questioning the legality of organ procurement after "brain death" and the procurement of all organs after circulatory death, not just heart procurement. Essentially, he agrees that heart procurement after "circulatory death" for transplantation does not conform to law.

Statute law forbids organ procurement unless the donor is dead, but doesn’t specify how doctors should diagnose death. Over the decades the clinical and philosophical definition of death has been altered and bedside tests chosen to facilitate the diagnosis of brain death, creating a "deception" that the donor is dead but in reality showing the donor is dying or so badly damaged they would die.

Dr Joffe offers solutions to end medical deception. We favour novel legislation for organ procurement from donors not fulfilling the so-called "dead donor rule". We have already discussed the clinical falsity of "circulatory death", warranting no further discussion, but diagnosis of "brain death" does.

Statute law requires all brain function to cease irreversibly before organ procurement but ANZICS guidelines to diagnose "brain death" strangely still recommend a test for spontaneous breathing, apnoeic-oxygenation, which is inaccurate and if the prospective donor is not dead may itself create the very condition (brain death) which it is supposed to diagnose 1. The best test for cessation of all (each and every) brain function is of brain blood perfusion using radionuclide Tc-99m HMPAO. Complete lack of brain blood flow is, faute de mieux, the best test for brain death. The apnoeic-oxygenation test should never be performed.

1. Tibballs J. A critique of the apneic oxygenation test for the diagnosis of “brain death”. Pediatr Crit Care Med 2010; 11: 475-478.

Competing Interests: No relevant disclosures

Assoc Prof James Tibballs
Royal Children's Hospital Melbourne

access_time 06:04, 22 October 2015
Andrew McGee

Response to Dr Ari Joffe (and Dr Tibballs and Dr Bhatia) on DCD

‘Irreversible’ means either ‘not capable of auto-resuscitation’ or ‘not capable of being reversed by human action’. If 'irreversible' (on the second interpretation) were part of the meaning of 'death', then 'death is irreversible' would be a tautology. The logical possibility of resurrection shows otherwise, as does Dr Joffe's need to state that death is irreversible. Further, it is not true to say that it is part of the common usage of 'death' that it is irreversible. Laypeople speak of a cardiac arrest victim as having died and been brought back to life.

Resuscitation by human action is a relatively recent phenomenon. By contrast, human beings have been dying for over 200,000 years. It is not and never was built into our concept of death that a person is not dead until it is impossible to reverse the cessation of circulation by human action.

We can therefore declare death when autoresuscitation is no longer possible. My collaborator Dale Gardiner and I have asked:1 If we insist nobody is dead until revival by CPR is not possible, why stop with CPR? Why not instead say: nobody is dead until they can’t be revived with the use of the best resuscitative technology, such as ECMO? Of course, the use of ECMO will in many cases be inappropriate. But so, in many cases, is CPR! If we can validly declare death where it is not appropriate to use ECMO resuscitation technology, then we can validly declare death where conventional CPR is not appropriate.

Finally, withdrawal of life-support is not killing.2

1. McGee A, Gardiner D. Donation after Circulatory Determination of Death: Some Replies to Recent Criticisms. J Med Philos (forthcoming).
2. McGee A. Does withdrawing life-sustaining treatment cause death or allow the patient to die? Med Law Rev 2014; 24: 26-47; McGee A. Acting to Let Someone Die. Bioethics 2015; 29: 74-81.

Competing Interests: No relevant disclosures

Dr Andrew McGee
Australian Centre for Health Law Research, QUT

Responses are now closed for this article.