LEGAL ISSUES IN AUTHORIZATION FOR ORGAN DONATION IN MISSOURI & KANSAS Laurence R. Tucker November 18, 2011
A.Authorization for the Donation of Organs and Tissues is Governed by Both Federal and State Law.
B. The Federal Laws and Regulations Established and Govern the Organ Procurement and Transplantation Network (OPTN).
1. The National Organ Transplantation Act passed by Congress in 1984 requires that an OPO: • a. have effective agreements to identify potential donors with hospitals in their service area; • b. conduct and participate in systematic efforts to acquire usable organs from potential donors; and • c. arrange for the acquisition and preservation of donated organs.
2. Regulations adopted under that statute and the Medicare Act require that OPOs comply with certain conditions which include: • a. having contracts with 95% of the hospitals in the service area in which the OPO and hospital agree how potential donors will be identified and donation obtained; • b. having a written protocol to ensure that in the absence of a donor document, the individuals responsible for making the donation are informed of their options to donate organs and tissue or to decline to donate. The OPO must provide, at the minimum the following:
1. A list of the organs and/or tissues that may be recovered. • 2. The most likely uses for the donated organs and tissues. • 3. A description of the screening and recovery process. • 4. Information about the organizations that will recover, process and distribute the tissue. • 5. Information regarding access to and release of the donor’s medical records. • 6. An explanation of the impact the donation process will have on burial arrangements and the appearance of the donor’s body. • 7. Contact information for individual(s) with questions or concerns. • 8. A copy of the signed consent if donation is made.
c. If the donor gave authorization before death in a manner acceptable to the State in which the donor resided, then the OPO must provide information about the donation to the family of the potential donor, as requested. ● This is important in Missouri and Kansas because both states’ laws promote First Person authorization.
3. The state laws of Missouri and Kansas provide the legal guidance to determine: How may a gift of an organ or tissue be made? By whom may the gift be made? How may the gift be modified or revoked? What are the obligations of the OPO in seeking consent? What liability exposure does an OPO have in seeking consent?
C. The State Laws Which Govern the Making of a Gift of Organs or Tissues Have Many Similarities, and a Few Differences
1. Both Missouri and Kansas have enacted forms of the Uniform Anatomical Gift Act (UAGA).2. Kansas and Missouri have now adopted the most modern version of this law (2006).
3. Both acts cover the same ground with minor variations. Both states base their laws on the principle of First Person Authorization.
4. Gifts of organs or tissue can be made in both states by: • a. a will; • b. a donor card; • c. authorizing a statement or a symbol to be placed on the donor’s drivers’ license (or state identity card) which indicates that donation has been authorized; and • d. an oral statement when the donor is terminal due to an illness or injury, addressed to two adult witnesses who sign a document of donation. • e. In the absence of a specific gift by the donor, or a known prior objection, a gift may be made by one of a list of persons (the priority list), but only in specific circumstances where someone of equal or higher priority has not objected to the gift. [This list is different in Kansas from Missouri, but both states provide that a majority of a priority class can determine whether a donation will be made or not.]
5. A gift may be amended or revoked in Missouri or Kansas in essentially the same ways: • a. by a new record signed by the donor, a person on the priority list or; • b. an oral statement during a terminal illness or injury to two witnesses which is made into a signed record; • c. by a will; and • d. destruction of a prior document of gift. • e. In Missouri, by informing the Department of Health and Human Services that he or she wishes to withdraw the consent to donation.
6. Missouri formerly permitted a revocation of a gift made by a consent noted on a drivers’ license by its expiration or revocation, but does not permit that to occur under the new law.
7. Both states provide for a refusal of donation by the explicit act of the potential donor. The methods which can be used are : • a. a form signed by either the donor or someone acting at the direction of the donor (who is unable to physically sign a document) which is witnessed by two persons, one of whom is a disinterested person; or • b. a will. • c. any form of communication during a terminal illness or injury made to two adults. • d. This refusal can be amended or revoked just as a gift can, but only by the donor.
8. Other differences between the states have been removed by the new law: • a. In Kansas a 16 year old can make a gift without parental consent, but the parents of an unemancipated minor can revoke that gift later, and can revoke the child’s refusal to donate. • b. In Missouri, under the old law only persons 18 or older could make a gift, but now the law is like the Kansas law, except the parents cannot revoke a child’s refusal to donate. • c. Kansas and Missouri requires OPOs to make only a reasonable search for available priority members to give consent and the term “reasonable availability” is now defined.
9. One of the biggest differences between the states has to do with civil and criminal immunity. • a. In Missouri, a person must either act in accordance with the statute, or another state’s anatomical gift statute or act “without negligence and in good faith”. • b. In Kansas, the OPO must act in conformance with the Kansas statute, another state’s statute or make a good faith attempt to comply with it. (There is no reference to negligence.) • c. Both states now provide immunity to the person making the gift on the donor’s estate for any injury or damage that results from the making or use of the gift. [This would seem to prevent claims for the mutilation of a donor’s body or claims for a “defective” body part.]
Key Concepts: • 1. Gift: the transfer of property without any payment or other consideration. The law does not involve the concept of “consent” as in “informed consent”. • 2. Amendment: An alteration in the gift. • 3. Revocation: The decision to not make a gift after originally deciding to do so. A decision which can be reversed again by a member of the “priority” list. • 4. Rejection: An unequivocal decision to not make a gift.