Coroners and brain death

Some coroners (in the United Kingdom and Australia the coroner is the investigating officer, not the coroner's pathologist, who performs the autopsy) have claimed jurisdiction over brain-dead patients, and asserted a right to refuse organ donation. This is based on the idea that brain death is death, and their jurisdiction commences at time of death. This is probably incorrect, as their jurisdiction commences when the death is reported to them, which may be some time later. Reporting need only occur in certain cases, principally those of violent or unnatural death, or where cause is unknown.

The coroner's duty is to state a cause of death, not as a medical diagnosis, but for example accident or natural causes. Removal of organs for transplant cannot impede that function. If a patient is properly declared brain dead, the cause of death has to be known. If organs are removed for transplantation, they are, by definition, normal.

Although it may be politically advisable to inform a coroner before removal of organs, this cannot be a legal requirement. Confidentiality

Confidentiality in critical care is unusual. The basic rule is to respect and protect confidential information unless the patient gives permission to disclose it, and the main exceptions, protecting others and preventing crime, do not generally apply in critical care (but see below for AIDS and notifiable diseases). However, in critical care, it is often impossible to disclose any medical information to the patient because he or she is unconscious or sedated. What is the legal position about disclosure to relatives?

GMC guidelines (GM.C 19.9.5) allow, in terminal illness, disclosure without consent to a relative when it is judged that disclosure to the patient would be damaging, but disclosure to someone would be in his or her best interest. This does not apply to most critical care patients, and there are no guidelines or cases. Standard practice is to disclose full information, including diagnosis, treatment, prognosis, etc., to relatives, because someone must know what is going on and the obvious candidates are the relatives. The courts and the GMC would probably be guided by this.

But what if there appears to be a dispute between family members? Can one restrict the information? There is no case law, but it would probably be acceptable to restrict information to next of kin who can decide what to do with it. What of an unmarried partner? They seem to be treated as next of kin, which is not unreasonable since we often do not know the true status of claimed next of kin. What if the diagnosis is AIDS? Here the GMC states that a doctor has a duty to see that a sexual partner of an AIDS patient is informed, even if disclosure is refused; this must cover where consent is unavailable. Finally, what of notifiable diseases? Here there is a legal requirement to inform the relevant authority which overrides the duty to the patient.

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