Can incompetent adults donate their organs?

Incompetent adults are adults who are not able to give informed consent, for example due to mental disability

In Summary

• The best interest is and ought to be looked at in terms of social and emotional gains

Doctors from the Kenya Society of Endoscopic Surgeons conduct the modern surgery on a patient
Doctors from the Kenya Society of Endoscopic Surgeons conduct the modern surgery on a patient
Image: FILE

Only after providing all the necessary information that the potential donor can rely on to make informed consent and after the medical practitioners are convinced that the benefits of the recipient do not outweigh the risks by the donor, does organ procurement occur.

Donation by incompetent adults, thus, becomes contentious and requires special attention to address its legitimacy and ethical standing. Incompetent adults are adults who are not in a position to make rightful decisions in regards to any matter concerning them.

The level of incompetence varies among patients. There are those who are severely incompetent, while others are mildly incompetent. In cases of severe incompetence, the patients have limited awareness of who they are. At times, incompetent adults, may talk and even have relationships but lack the ability to make medical decisions on their behalf, for instance, those suffering from Downs Syndrome, which is relevant to this article.

Medically, such incompetent adults are not able to give consent that medical practitioners can solely rely on in respect to medical treatment. This — being able to give informed consent — is one of the key considerations of organ donation, yet they lack the ability to do so. When a person is not able to make medical decisions for themselves, then the court is obligated to appoint a surrogate on their behalf, a person who will be making the medical decisions on their behalf.

There are times, however, when the medical practitioners are allowed to make medical decisions on behalf of the incompetent adults, and this was well illustrated in the year 1989 in England in the case of F v West Berkshire Health Authority [1989] 2 AC 1, in which doctors sought permission to sterilise a 36-year-old woman with a mental age of five, who had become sexually active but who because of her condition was incapable of giving informed consent.

Doctors agreed that the psychological effects of pregnancy would be seriously damaging to her and sought a declaration that they would be acting lawfully in sterilising the woman without obtaining her consent, which she was mentally incapable of giving.

It was actually held that: where an adult is unable to give consent — for example, because he is unconscious or mentally disabled — the doctor has a right, perhaps even a duty, to give treatment that is in the patient’s best interest, to save his life or to prevent deterioration to ensure improvement in his physical or mental health.

In this case, the doctors acted in the best interest of the patient, they knew she could not handle the psychological issues associated with pregnancy. In this light, allowing organ donation by an incompetent person does not in any way amount to ‘acting in their best interest’. Although the process of donation does not normally involve a lot of pain or risk to the donor, it is not to mean that the possibility should be disregarded. Psychological harm to the donor is also a possibility and, if a judge thought a pregnancy, which is seen as a source of joy, would cause harm to an incompetent woman, how much more harm would losing an organ, or a piece of it, be on an incompetent adult?

Most of the cases of a possible donation by an incompetent adult arise when an ailing sibling requires an organ and the only matching donor is an incompetent sibling. In such cases, the donation might be allowed. This has actually happened before, where a mentally handicapped man of 27 years but with a mental capacity of six was allowed to donate a kidney to his brother; the two were so much attached. In this case, the doctors and the court decided in favour of the donation because the death of the ailing sibling would have been detrimental to the health of the incompetent sibling.

Such kind of donations are, however, not always guaranteed. For instance, consider a case where an incompetent adult living with their mother who is not married to the father, neither are they living together. Now, the father goes ahead and sires a child by another woman and this child is ailing from leukemia and needs a bone marrow transplant to live. Apparently all the family members are not a match and so the father moves to court and requests it to order the incompetent sibling with the first woman be tested for compatibility and if found compatible, be ordered to donate bone marrow.

Would such a request be granted? At what point would it be granted? Does the fact that the two are siblings amount to any form of obligation on the incompetent sibling? And would this case be treated differently if the sibling was indeed competent to make an informed decision?

From the case and illustration above, two things are evident; one, incompetent patients are not in a position to consent to donating their organs, and the other thing is that before donation is allowed, the reason must be put to test to ascertain whether it is in the best interest of the patient.

This ‘best interest’ in question is not looked at in terms of the incompetent adult’s health because removing an organ from a person does not do their health any good, in any case all it does is create risks, cause of pain and for some, leave permanent scars.

Instead, the best interest is and ought to be looked at in terms of social and emotional gains, what the patient will lose if they fail to donate their organ and, as a result, the person ailing dies.