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In the latter case, both the HCCA and the TGLN Act would seem to apply to transplantations.
It is unclear whether the TGLN Act applies to ancillary procedures to DCD, such as pre-mortem interventions.
For those ancillary actions after death, section 4(1) of the TGLN Act only requires a patient's general consent for the use of their body after death and leaves the context broad enough to encompass any associated procedures performed post-mortem.
If, as discussed, neither the TGLN Act nor HCCA apply to pre-mortem interventions, the common law governs the role of SDMs (in consenting to such actions).
Section 5(2) of the TGLN Act stipulates that SDMs may give consent in the absence of wishes expressed by the donor patient.
Unfortunately, it seems logical that the "best interests" and SDM analysis above is moot given the fact that neither the HCCA nor TGLN Act appear to apply to DCD pre-mortem invasive interventions.
The Message from the CEO that introduces the report states frankly: "We did not expect TGLN's efforts to result in an increase in donations during this start-up year," (22) and the remainder of the report may well have been calculated to manage expectations in this regard.
TGLN's Annual Report 2003-2004 was not publicly available at the time of writing, but will reportedly hold few surprises and will report little improvement in donation rates.
In the first year of the TGLN Act, "the number of organ donors in Ontario plummeted by 30 per cent in 2001 to hit the lowest total in a decade," bottoming out at a dpmp of 10.6 and slipping below the national average for that year.
(43) However, TGLN's ongoing research reveals the central defect of our--or any other--express consent policy: an extreme disconnect between potential donors' understanding and intention with respect to donation on the one hand, and their willingness to act accordingly on the other.
(49) A further variation of this position is "modified mandated choice," in which the individual is again is required to consent or decline, but is encouraged, via a more propagandist variety of the awareness-raising of the sort the TGLN undertakes, to choose in favour of donation.
Education of this sort is falls squarely within the mandate of the TGLN and should become a natural extension of its current work.
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