Clinical law updates
On these pages I discuss the clinical law on which our nursing and medical staff rely when caring for our patients.
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Mr Robert Wheeler, director, department of clinical law
Altruism in stem cell donation
Organ donation by incapacitated adults or by children requires the agreement of a court. The reason is plain to see. Fear lingers that the ‘gift’ of an organ could plausibly be the reverse, in reality an act of exploitation, or much worse. By contrast a peripheral stem cell harvest, although regulated by the Human Tissue Authority (HTA), does not in principle require judicial authority, and it seems that about 65 children each year act as stem cell donors with the approval of the HTA.
Recently the Court of Protection, for the first time in its existence, heard an application for the extraction of stem cells for donation by someone lacking capacity. Numerous similar cases had been brought to the High Court relating to bone marrow donation, but for the CoP this was a new venture.
The case concerned MC, an 18 year old woman who lived at home with her parents and two younger siblings. Several years ago her mother suffered leukaemia but despite repeated chemotherapy, remission had eluded her. MC's mother’s life expectancy without transplant is 12 months; with transplant, the court was told, in the order of 45% five year survival.
The court did not elaborate on the cause of MCs incapacity but readily pointed out her loving relationship with her mother. She had been unable to repeat back in a coherent manner what had been said to her or demonstrate an understanding of stem cell harvest. Finding that MC lacked capacity, the court held that she was unable to provide consent for the collection of stem cells and their use for the benefit of her mother.
The court heard that she would have repeated blood tests and injections at home to mobilise the stem cells. Pain, bruising and flu-like symptoms were considered. Bilateral venous access in the arms for four to five hours was anticipated. After all of this, there would be no physical benefit for MC.
But it was the benefits that she might accrue which were notable. MC was part of a loving family and there were clear emotional, social and psychological benefits to her of having her mother’s life extended. The court gave weight to the fact that notwithstanding MC’s lack of understanding of clinical details, she did understand that her mother was unwell, and that she might (as a good tissue match) have the ability to extend her mother’s life, perhaps enabling recovery. The court found that MC wanted to do that; this was a repeated wish that she had expressed.
A case called Re G (TJ) from 2010 was cited, where a judge noted that the best interests test was not confined to self-interests: ‘…The actual wishes of P, which are altruistic and not in any way directly or indirectly self-interested, can be a relevant factor’. As an additional, separate, point the court in MC gave some lesser weight to the fact that she ‘...may be seen by others positively’ in acting altruistically. Taken all together, the court found that it was overwhelmingly in MC’s interests to donate stem cells, and on her behalf gave consent for the procedure.
The altruism point is well made, but perhaps not rehearsed in daily hospital life. Why should there be any doubt that incapacitated patients should be altruistic, or a supposition that they may be less altruistic than their capacitious neighbour? Generosity of spirit is not reserved solely for those with capacity. There is every reason why in our hospital we should explicitly include ‘opportunity for altruism’ in the balancing sheet when accumulating the benefits that an incapacitated patient might accrue in some clinical circumstances. ‘Altrui’ denotes ‘somebody else’. There is, after all, a measurable benefit derived by an individual from actively caring for somebody else.
Department of clinical law, October 2020