Posted By Jonathan Adessky
Canadians have increasingly been donating organs over the past ten years. Shouldn’t we be celebrating? According to the Canadian Blood Services’ early September report, Canada has seen a 23% increase in donations over the past decade. While this is definitely good news, we mustn’t be fully satisfied with our country’s progress on donation rates. According to the International Registry on Organ Donation and Transplantation, Canada lags behind its contemporaries by a large margin. This leads us to wonder: what are we doing wrong? How can Canada catch up to organ donation levels in other Western, industrialized nations?
Canadian Blood Services is a non-profit organization that manages and coordinates national blood and organ donation. We should take pride in the impressive results of their work. According to the organization’s 2015 report, “the national deceased donation rate has risen from 14.1 to 18.2 donors per million population (DPMP)” since 2006; most would agree this counts as an achievement. Nonetheless, the fact remains: Canada has some catching up to do.
The question remains: how and to what extent can the Federal Government help further Canada’s progress? At least one Canadian parliamentarian, Ziad Aboultaif, believed that a federally mandated organ donor registry would help drive growth in the donation rate. In drafting this bill, he put his heart into his work; or, more accurately, his liver, a piece of which Alboutaif donated to his son. The proposed bill intended, in part, to establish a national promotion strategy for organ donation. The Minister of Health would be tasked with producing an annual report detailing the success level of the previous year’s strategic plan, with a set of recommendations for further improvement.
Despite broad support for the its stated goals, Aboultaif’s proposed private member’s bill was defeated in June. Parliament faced a major obstacle in that organ donation falls ultra vires federal jurisdiction. One doesn’t need to consult a learned lawyer to reach such a conclusion; a glance at the Constitution Act, 1867 would suffice. Provincial authority over matters relating to organ donation flows from jurisdiction to legislate on hospitals, as per section 92 of the Act.
Given these constitutional limitations, what role can the Federal Government play in furthering Canada’s progress promoting interest in organ donation? Records of the House debate indicate strong moral support for the Bill; for example, Kamal Khera, Parliamentary Secretary to the Minister of Health, admits that Aboultaif’s initiative is worthy of praise. She elaborates on how the Trudeau government is committed to further supporting the Canadian Blood Services, and how a formalization of the existing interprovincial sharing guideline is underway. Clearly, Ottawa is determined to help reform the system, but the ‘how’ remains murky.
Parliament faced a major obstacle in that organ donation falls ultra vires federal jurisdiction.
According to Canadian Blood Services, most of the provinces already have high registration rates. To add to that, CEO Dr. Graham Sher states that a federally-coordinated national registry alone may prove insufficient to realize the projected gains. If this holds true, the Federal Government need not worry about organizing a centralized registry; a truly daunting task. What alternatives can Ottawa turn to in its efforts to improve the organ donation system, besides the creation of a registry?
International best practice comparisons may prove useful in this endeavour; for example, one might wonder how Spain’s DPMP rests at more than double that of Canada, at a rate of 39.7. The key to Spain’s success may result from the manner in which its intensive care units operate. Kim Young, director of donation and transplantation for Canadian Blood Services, points to the staffing of Spanish ICU facilities with donation specialists as a the key to their success. Clearly, it would be wise and fair to make this approach a priority in tackling subpar growth in Canadian organ donation.
Ottawa has proven generous in directly funding third party organizations, and where money flows, influence follows. This relationship holds true especially as organizations depend more and more on these funds in their financial planning. Since 2008, the provinces and the Federal Government have collectively invested $64 million in the Canadian Blood Services. While the aforementioned constitutional limitations restrict Parliament from direct intervention, Ottawa is still in a good position to effect change from the sidelines.
The weight placed on federal input is largely driven by its generosity and on the system’s dependence on external financial contributions. If the Canadian government wants to advance a strategic plan, its voice will surely be heard as it continues to provide funding. If the Trudeau government is as passionate about the issue as Khera makes it out to be, then it will consider reworking its strategy. Federal funding ought to entail guidelines that factor in best practices established by medical professionals in Spain.
Through deconstruction of the issue at hand, a subtle and important insight emerges: jurisdictional boundaries do not necessarily preclude federal involvement in healthcare. Yes, these matters fall under provincial jurisdiction. No, the Federal Government cannot directly manage national programs that clearly fall outside of its jurisdiction. Just because it cannot hop the constitutional fence, however, what barrier exists to prevent federally-supported third-party charities from taking action where the government cannot?
McGill Journal of Law and Health 