In brief
- Physicians are unlikely to face medico-legal difficulties when they act in good faith and are reasonably satisfied that valid consent has been given (or, in Nova Scotia, the conditions have been met to deem consent) to harvest a deceased person’s organs or tissue.
- Information concerning donating organs and tissue is best provided to patients as part of routine care and in advance of any crisis that might give urgency to the decision.
- When a patient’s wishes are not known, legislation generally allows next of kin to consent to donate, or refuse to donate, under specified conditions.
- When a patient’s wishes are known, a discussion with the family to confirm the donor’s wishes may help avoid conflict and medico-legal difficulties for physicians.
Physicians involved in post-mortem organ and tissue donation may have questions about informed consent—particularly, who can provide it and how it should be obtained. Physicians may also worry about exposing themselves to complaints or legal actions when taking part in harvesting and transplanting organs and tissue. Understanding the regulatory requirements that govern organ and tissue donation can help physicians feel confident they are meeting their obligations to patients and families while contributing to the limited supply of transplantable organs.
Physicians who act in good faith and are reasonably satisfied that valid consent has been given are unlikely to encounter medico-legal difficulties.
Consent to opt in or out
Most Canadian jurisditions have specific legislation governing consent to donate organs and tissue (in Québec, consent for such donations is addressed in the Civil Code).
Most provinces and territories use opt-in system
Most provinces and territories use an opt-in system, where the donor or another authorized individual must give express consent. Such consent can be given in several ways, such as registering with a provincial donor registry (e.g., BC Transplant, Ontario’s Trillium Gift of Life Network), renewing one’s health card or driver’s license, or providing consent at the time of care through the patient or substitute decision-maker (SDM).
Nova Scotia uses opt-out system
Nova Scotia is the only province with an opt-out system. In this model, individuals can register their consent or refusal to donate in the provincial donor registry, which is to be consulted before any transplantation activity. If the individual has not recorded their decision in the provincial registry and they were 19 years of age or older and met certain requirements before death, their consent will be deemed (i.e. presumed). However, if the patient’s SDM has information that would lead a reasonable person to conclude the patient would have made a different decision than the deemed decision or the one recorded in the registry, the SDM may provide or refuse consent on the patient’s behalf.
In many provinces and territories, legislation also permits family members and SDMs to consent when death is imminent or has occurred. Typically, consent may be given in priority order by next of kin or other authorized individuals, provided there is no information indicating that the donor would have refused to consent.
Presumed (deemed) consent and mandated choice
To help increase the availability of organs, some advocates call for a system with two approaches: presumed (deemed) consent and mandated choice. In presumed consent or opt-out system, consent is deemed to have been given unless the person’s refusal is recorded in a registry, there is evidence the person would have made a different decision, or specified exceptions apply. In a mandated-choice system, all citizens would be required to declare whether they wish to donate, likely through a government registry or when interacting with public services.
Suitability for organ and tissue donation
An ongoing challenge for physicians and organ procurement organizations is finding ways to reduce barriers to organ and tissue donation, thus narrowing the gap between supply and demand. Although Canadian regulations list several contraindications  to organ and tissue donation – such as infections and some neurological disorders – exceptions can be made on a case-by-case basis. Suitability is typically assessed by the organ procurement organization and the decision whether to proceed is ultimately made by the transplant physicians.
Refer to College guidelines for additional obligations
Physicians may be subject to additional obligations. In Alberta, for example, physicians who make a determination of death are required to consider and document the medical suitability of the deceased person’s organs for transplantation. To support decision-making, physicians should refer to the applicable College guidelines and policies, such as the Canadian Medical Association’s Policy on Organ and Tissue Donation and Transplantation. Many provincial/territorial donor registries and organ procurement organizations also offer resources and access to transplant specialists, and in many hospitals transplant physicians are also available for consultation.
Providing care in good faith
Provincial and territorial legislation on organ and tissue donation provides immunity from civil liability for physicians who act in good faith and without negligence when removing tissue for post-mortem donation. Such legislation is grounded in the general principle that physicians will not be found liable when acting according to the appropriate standard of care applicable in the circumstances, which is based on medical knowledge and prevailing practices at the time.
Communicating with donor patients and their families
Physicians are encouraged to provide prospective donors with clear, understandable information about organ and tissue donation - preferably as part of routine care, well before any crisis or when a patient’s capacity to consent might be compromised.  This typically includes: the benefits and risks of donation and transplantation, procedures on the determination of death, how organs and tissues are tested for suitability, any measures needed to preserve organ function until death is confirmed, what will happen to the body after death is declared, which organs or tissues may be donated, and what occurs if the family objects.
Physicians should also encourage patients to discuss their decision with their family or SDM to provide clarity and avoid possible later conflict.
When a patient has died, it is good practice is to involve the hospital’s organ donation coordinator (or equivalent), who can check the donor registry and speak with the family about the donation process. Clear, compassionate communication can increase consent rates and improve families’ overall experience.
When the patient’s wishes are known and there is no reason to believe the patient changed their mind to donate, physicians are not obligated from a legal perspective to seek additional consent from family members or the SDM. While family members and SDMs are encouraged to respect their loved one’s expressed wishes, this is not always a linear path. A respectful conversation with the family or SDM to review the donor’s wishes is advisable. This can help prevent conflict, support those who are grieving, and reduce the possibility of medico-legal difficulties for the physicians involved.
Additional reading
