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Organ and Tissue Donation in Quebec: Bill 194 Proposes to Adopt Presumed Consent

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Life Sciences Bulletin

Recently, André Fortin, Health Critic for the Official Opposition, tabled Bill 194, An Act to establish a presumption of consent to organ or tissue donation after death (the "Bill"). The objective of the Bill, which is currently at the stage of detailed study by committee, is to facilitate organ and tissue donation. It amends the Civil Code of Québec so that a person of full age is presumed to have authorized the removal of organs and tissues from his or her body after death, unless they indicate otherwise.

After an unsuccessful attempt in 2019, Mr. Fortin believes the bill will move forward as it has the support of Health Minister Christian Dubé, who told reporters, "This is a project that should be a priority... I think we should work on it in a non-partisan way". [1]

The Current Legislative Framework for Organ and Tissue Donation in Quebec

Currently, article 43 of the Civil Code of Quebec allows adults of full age, minors aged 14 and over, and minors under 14, with the consent of the holder of parental authority or their tutor, to authorize the removal of organs and tissues from their body for medical and scientific purposes. The expression of this wish may be made in the presence of two witnesses or in writing. The decision can be recorded in the Registre des consentements au don d'organes et de tissus of the Régie de l'assurance maladie du Québec ("RAMQ"), in the Registre des consentements au don d'organes et de tissus of the Chambre des notaires du Québec ("CNQ"), or by signing the sticker on the back of the health insurance card.

In the absence of known or presumed wishes on the part of the deceased, the Civil Code of Québec provides that the organ may be removed with the consent of the person who could or would have consented to the care. Such consent is not required in cases where the urgency of the intervention and the serious hope of saving a human life or significantly improving its quality are attested to in writing by two physicians.

At the time of death, the deceased's next of kin are consulted by the medical team to ascertain his or her wishes. If the wishes of the deceased are known, the next of kin can express them. If not, the decision will be taken in accordance with legal provisions. However, although the law stipulates that the anticipated wishes of the deceased should be respected unless there is a compelling reason to do so, in practice, medical teams often request the authorization of next of kin before beginning the donation process. The provision intends to prevent the deceased's wishes from being set aside by his or her next of kin, however, Transplant Quebec favours decisions that consider the wishes of the family [2]. In such cases, the refusal of family and friends may correspond to the notion of "compelling reasons"[3], to the detriment of individual autonomy.

The Bill's New Legislative Framework

The Bill provides for a presumption of consent to organ or tissue donation after death, rather than requiring proof of consent. This is the opposite of the current system. Quebecers who refuse organ and tissue donation will be responsible for indicating their refusal by registering in the RAMQ's Registre des consentement et des refus au don d'organes et de tissus, the CNQ's Registre des consentements et des refus au don d'organes et de tissus, or by signing the sticker on the back of their health insurance card.

As is currently the case, the deceased's next of kin will continue to be consulted before a donation is made, and the urgency of the procedure and the serious hope of saving a human life or significantly improving its quality may still justify overriding a refusal. However, it remains unlikely that the implementation of this new regime will change the way doctors take the family's wishes into account.

Presumed Consent: A Hope for the Future?

Quebec is following in Nova Scotia's footsteps. Since January 18, 2021, the Human Organ and Tissue Donation Act has been in force in the province. The Act establishes a presumed consent regime for organ and tissue donation. This is the first jurisdiction in North America to adopt such legislation.

So far, the regime change in Nova Scotia looks promising. Following the announcement of the law, and even before it came into force, an increase in the number of donors had already been observed in the province. Since 2021, more than 57,000 refusals, representing around 5% of the eligible donor population, had been recorded. A 40% increase in tissue donors was also observed from 2020 to 2021 [4].

However, the public's lack of awareness of the law raises ethical issues, in particular the possibility that removal or non-removal may go against the wishes of the deceased. According to the doctor in charge of the program in Nova Scotia, the adoption of this approach should be accompanied by a public education and awareness campaign.

We must therefore remain vigilant in the face of this important legislative change in Quebec, as it is still too early to draw any conclusions. Other factors, such as a government's healthcare spending or the number of potential donors, may also play a role in increasing the organ and tissue donation rate.

Bill 15, which we have already discussed, is designed to reorganize the administration of the health care system. Bill 15 makes reference to the administration of organ donation by requiring that the medical director, instead of the director of professional services, be responsible for notifying the organ donation coordination team of the recent or imminent death of a potential donor. It remains to be seen whether subsequent versions of Bill 15 might include further amendments to incorporate Bill 194. Donor coordination will become increasingly important as part of an opt-in system, that will hopefully increase the number of organs available in Quebec.

Fasken's Life Sciences group is keeping a close eye on the progress of the Bill and remains available to answer any questions interested parties may have on the subject.

[1] Quebec bill could increase organ donations | Montreal Gazette

[2] Altarbouch, L., Hébert-Gauthier, N., & Bourassa Forcier, M. (2021). Don d’organes au Québec - Étude comparée des bonnes pratiques (2021s-11, Cahiers scientifiques, CIRANO.) (in French only)

[3] Louise BERNIER, « Le don d’organes : voir au-delà des volontés individuelles? », (2018) 15 Elsevier – Éthique et santé, p. 143.

[4] Nova Scotia Health 2021-22 Annual Report

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