Tag: organ donation
Who is ready for some good news? Our firm has been interested in the issue of organ donation for some time now. In 2012, we blogged about whether P.E.I. may be the first province in Canada to automatically enroll all of its people as organ donors until you chose to actively “opt-out”. In 2014 and 2019, we blogged about Nova Scotia’s efforts in this regard.
Today, we are happy to report that this is now the new reality in Nova Scotia as of January 18, 2021.
The Human Organ Tissue and Donation Act was passed in April, 2019. The Act, when it came into effect this Monday, meant that everyone in Nova Scotia are now considered to a potential organ donor until they “opt-out”. This new “opt-out” system is the first of its kind in North America according to the Huffington Post. Ontario, like everywhere else, has an “opt-in” program where you have to actively sign up in order to be considered as a potential organ donor whereas the “opt-out” system is the opposite of that. Nova Scotia is hoping that this will dramatically increase the rate of organ donation in the province like the 35% increase that has been noted in certain European countries.
In order to balance and respect the wishes of each individual, the director of the organ donation program has indicated that the known wishes of an individual will be respected even if he/she has not formally opted out.
This is an issue that is personally meaningful to me because of the statistics surrounding organ donors and organ recipients of colour. People of colour tend to be underrepresented within “opt-in” systems of organ donation. According to the Gift of Life, while race and ethnicity is not determinative of a match, a match is more likely to be found within one’s own ethnic community because of compatible blood types and tissue markers. 60% of patients waiting for a transplant are from communities of colour. I, myself, am registered with the Gift of Life and I can attest to how easy and painless it was to sign up.
Thanks for reading!
Nova Scotia is proposing legislation that will make it the first jurisdiction in North America to adopt “presumed consent” around organ donation.
Under the Human Organ and Tissue Donation Act, all people in Nova Scotia will be presumed to agree to organ donation upon their death, unless they opt out. The Act does not apply to those under 19, or those without decision-making capacity. In those cases, a parent, guardian or alternate decision maker may consent on their behalf.
The Act will not be proclaimed immediately: it is to take effect in 12 to 18 months, so as to allow for public education and support for health care workers.
Under previous Nova Scotia legislation, the right of a family member to veto an organ donation decision made by a deceased was removed. See our blog on the topic, here.
Several European countries already have presumed consent laws for organ donation.
In Ontario, the current system is an “opt-in” system, rather than an “opt-out” system. Under the Trillium Gift of Life Act, consent must be given prior to the removal of organs after death. The person must be at least 16 years of age. In addition to the person, other persons are entitled to consent on the person’s behalf. These include,
- a spouse, either married or common-law;
- if there is no spouse or the spouse is not readily available, the person’s children;
- if there are no children, or if none are readily available, either of the person’s parents;
- if there are no parents, or none are readily available, any of the person’s siblings;
- if there are no siblings, or none are readily available, any of the person’s next of kin;
- if there are no next of kin, or none are readily available, the person lawfully in possession of the body, other than the administrative head of the hospital, where the person dies in a hospital. Further, the coroner, Public Guardian and Trustee, embalmer or funeral director are not authorized to consent.
Consent cannot be given if the person has reason to believe that the person who died or whose death is imminent would have objected.
Organ donation has helped so many. Please consider opting in to Ontario’s organ donation program.
Have a great weekend.
According to statistics posted on the Ontario Trillium Gift of Life Network website, there were a total of 1,546 persons waiting for an organ transplant as of June 20, 2016. According to beadonor.ca, 29% of Ontarians are registered organ donors, which is 3.5 million people out of an eligible population of 12.0 million.
I was touched when I read the recent commentary that was published by the Star, which was written by Beth and Emile Therien. Beth and Emile Therien are the parents of Sarah Beth Therien, who died 10 years ago and who revolutionized organ donation in Ontario.
When Sarah Beth died, organ donation was only available when a person had been declared brain dead. According to Sarah Beth’s parents, such deaths only occur in 1 to 2% of hospital deaths and Sarah Beth did not fit into this category of donors.
However, Beth and Emile Therien knew that their daughter was not coming back and they knew that she believed strongly in organ donation. With the help of the Ontario Trillium Gift of Life Network and the Ottawa Hospital, Sarah Beth became Canada’s first organ donor whose organs were donated after the withdrawal of life support, which is otherwise known as donation after cardiocirculatory death (“DCD“).
Since Sarah Beth’s death in 2006, 1,067 transplants have been performed in Ontario with organs that were donated after cardiocirculatory death. According to Beth and Emile Therien, one third of deceased donors in Ontario, today, are DCD donors.
Here on our Hull & Hull website, we have published a Toolkit for Legal Professionals which includes precedent letters to assist legal professionals in advising their clients about organ donation. This Toolkit was developed by Ian M. Hull, along with Sam Marr of Landy Marr Kats LLP, in consultation with the Ontario Trillium Gift of Life Network.
I would also like to take this opportunity to encourage anyone who is interested in registration, or in learning more about this topic in general, to visit https://www.beadonor.ca/ and https://www.giftoflife.on.ca/en/
Thanks for reading,
Across Canada, there currently exists an ‘opt-in’ framework for organ donation. Also known as ‘express consent’, this framework is defined by the presence of an explicit mechanism (e.g. signing of a donor card or registration with a regional organ donation society) by which one makes their wishes known. Our least populated province may be the first to eschew this system.
As reported on Tuesday, Health P.E.I. is considering a shift towards an ‘opt-out’ donation program in an effort to increase the organ yield in their province. Under such a ‘presumed consent’ scheme, a person is automatically considered an organ donor upon their death, unless the deceased had registered their objection while alive. A presumed consent organ donation program is not a new idea; in France, Spain, Portugal, Greece, Luxembourg, Italy, Austria, Belgium Netherlands, Singapore and Germany, organs and tissues are essentially considered property of the state unless one actively opts out in his/her lifetime. By 2015, Wales hopes to become the first in the UK to join the opt-out trend.
Are there advantages to a presumed consent regime? Don Mills, CEO of Corporate Research Associates summed it aptly: “Most people, if you ask them directly to become an organ donor, they probably will. But if you make them work for it, they’re probably not going to pay too much attention.” A 2006 U.S. meta-analysis concluded that indeed, opt-out programs had a ‘positive and sizeable effect on organ donation rates’. Nonetheless, in 2007, the Citizens Panel on Increasing Organ and Tissue Donation rejected a presumed consent framework as a means by which donation rates in Ontario could be boosted, and referred to such a framework as ‘too passive a method to be a clear statement of an individual’s intent.’
Canada’s donation rate (14.4 donors per million population) is one of the lowest in the developing world, and a report released by the Canadian Institute for Health Information earlier this year showed that across the nation, living and deceased donor rates have stagnated since 2006. 30% of people waiting for an organ transplant in Canada die on the waiting list. Organ donation is a hot topic at present, particularly in the wake of double-lung recipient Hélène Campbell’s herculean efforts in the social media arena to engage both public discussion and personal reflection. This conversation is clearly long overdue. Will P.E.I.’s voice lead the way?
Jennifer Hartman, guest blogger
[In the spirit of full disclosure, the author’s father-in-law is a member of the Health P.E.I. Board.]
Despite public awareness campaigns and an increase in need, the report found that the numbers of living and deceased donations in 2010 were on par with those from 2006. The living donor rate in 2010 was 16.3 per million population, compared with 17.0 in 2006. In 2010, the deceased donor rate was 13.6 donors per million population, compared with 14.0 in 2006.
The report also found that the number of transplants performed in Canada has remained largely unchanged since 2006. In 2010, 557 living organ donors and 465 deceased organ donors contributed to 2,103 solid organ transplants. In 2006, 556 living donors and 461 deceased donors contributed to 2,074 transplant procedures.
While the current donor rates are above 2001 levels, the report finds that the need for organs still outpaces the supply, and that as a result the “gap between organ donations and the need for transplants is growing.”
As we have blogged before, in Ontario, testamentary instructions or stated wishes regarding organ donation (technically) have no legal effect, and depend upon next of kin or the executor for implementation. Therefore, discussing your views on organ donation with your family and your named executor, leaving a Will with specific directions about organ donation, signing your Gift of Life Donor Card, and registering your consent with ServiceOntario are important to ensure that your wishes for organ donation are known and respected after your death.
For more information about organ donation, please visit BeaDonor.ca.
Saman Jaffery – Click here for more information on Saman Jaffery.
No more lineups at your local ServiceOntario kiosk. No more downloading forms (only to have them wait patiently by the front door for the mail strike to end, but I digress). At long last, residents of Ontario can now register online as an organ and tissue donor on a new website: BeADonor.ca.
In August 2010, I blogged about the tedious and onerous process of organ donor registration in the province that existed at that time. Adding to the confusion is the widely held belief that carrying a signed organ donor card is tantamount to formal registration. It isn’t, and therein lies the glitch; a signed donor card is not recorded in the Ministry of Health and Long-Term Care’s database, is often out of date, and is then subject to conflicting family wishes.
There is no cost to register. Online registration is easy, convenient, and secure. 1,500 people in Ontario are waiting for an organ donation right now. Ontario’s Health Minister, the Honourable Deb Matthews, issued a challenge on Tuesday when she expressed her hope that 1,500 new people will register by the end of the week. If registering to be an organ/tissue donor has been on your ‘to do’ list for a while, take a few minutes and cross this one off.
Jennifer Hartman, guest blogger
My friend owns a Chrysler dealership, and at the bottom of each of her ads, she includes a note in tiny font suggesting “Wise customers always read the fine print”. Those pondering organ donation in Ontario would be well-advised to follow this same adage. A number of significant changes have been made to the organ donation system in the Province:
• In addition to signing your Gift of Life Donor Card and informing your immediate family members of your choice to donate any/specific organs/tissue, you need to register your consent to donate. If you just carry the paper donor card, your wishes are only known to the extent that you have informed your family and friends. Once you register your consent to donate, your information is stored in a Ministry of Health and Long-Term Care database.
• To register consent, you can either: i) visit an OHIP office when you renew your health card; or ii) download a Gift Of Life Consent Form, fill it out and mail it to the address specified on the form. Online registration may be available at some point in the future.
• As of December 2008, you are no longer able to register a decision of “No” (i.e. No, I do not wish to donate organs/tissue). Only “Yes” decisions are now stored in the OHIP database. It is important to note that as of July 1, 2009, if you had previously registered a decision of “No”, this decision will “no longer be used or disclosed by the Ontario Government to Trillium Gift of Life Network”. Interesting catch-22: Should you choose to not register your consent, are you, by default, regarded as a “No”? The answer, is NO. If you do not register your consent, the TGLN will approach your family to discuss organ donation and your family may consent on your behalf if you are unable to do so.
• Your consent can be withdrawn at any time (again, by visiting an OHIP office, or in writing).
Spain, Italy and Austria all practice ‘presumed consent’ in which organs and tissue are considered property of the state unless one actively opts out. In 2007, the Health Law Section of the Ontario Bar Association, commented that an opt-out regime would be too radical a shift from the existing opt-in regime to garner public support. To wit, in a poll published late last week by Canadian Blood Services, 45% of Canadians were strongly opposed to a ‘presumed consent’ system of organ donation.
There are currently more than 4,000 Canadians waiting for organ donations, and each year, more than 200 die awaiting transplant.
Jennifer Hartman, guest blogger