NRL: brain death criteria should not be in the form of a legal act

In the opinion of physicians, it should be up to medical experts to determine these criteria, as it is now, where more than 30 experts who have developed these procedures are listed under the announcement of the Minister of Health dated December 4, 2019 on the manner and criteria for determining permanent irreversible cessation of brain function with the criteria for determining brain death.

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In connection with the Ombudsman's statement of August 28, 2023 (mark: V.7018.2.2014.AM) on the position of the medical self-government as to whether the procedures for determining permanent irreversible cessation of brain function and irreversible cardiac arrest preceding organ procurement should be regulated in an act that is a source of universally binding law, the Supreme Medical Council adopts the following:

The regulation on the determination of brain death previously was contained in Article 9, paragraphs 1-5 of the Law of July 1, 2005 on the collection, storage and transplantation of cells, tissues and organs. The provision of Article 9 of the aforementioned law stated as follows:

1. The harvesting of cells, tissues or organs for transplantation is permitted once permanent irreversible cessation of brain function (brain death) has been established.
2. The criteria and method of determining permanent irreversible cessation of brain function shall be determined by specialists in relevant fields of medicine appointed by the minister responsible for health, taking into account current medical knowledge.
3. The Minister of Health shall announce, by means of a proclamation, in the Official Journal of the Republic of Poland "Monitor Polski", the criteria and method of determining permanent irreversible cessation of brain function.
4. Permanent irreversible cessation of brain function shall be declared unanimously, on the basis of the criteria referred to in paragraph 3, by a committee composed of three physicians with specialization, including at least one specialist in anesthesiology and intensive care and one specialist in neurology or neurosurgery.
5. The commission referred to in paragraph 4 shall be appointed and its chairman appointed by the head of the treatment entity or a person authorized by him.

The provisions of Article 9(1)-(5) of the Law of July 1, 2005 on the Collection, Storage and Transplantation of Cells, Tissues and Organs were repealed by Article 2 of the Law of February 24, 2017 amending the Law on the Profession of Physician and Dentist and the Law on the Collection, Storage and Transplantation of Cells, Tissues and Organs (Journal of Laws of 2017, item 767). At the same time, the same law added a new Article 43a to the Law on the Profession of Physician and Dentist of December 5, 1996, which now regulates brain death. The provision of Article 43a of the Law on the Profession of Physician and Dentist states:

Article 43a

1. Statement:
2. permanent irreversible cessation of brain function (brain death),
3. irreversible cardiac arrest preceding organ procurement

- shall be carried out after the specialists referred to in paragraph 5 or 6 have carried out the procedure in accordance with current medical knowledge, taking into account the manner and criteria referred to in paragraph 3.

1. The method and criteria referred to in paragraph 3 shall be determined in accordance with current medical knowledge medical knowledge by specialists in relevant fields of medicine appointed and dismissed by the minister responsible for health.
2. The minister in charge of health shall announce, by means of a notice, in the Official Journal of the Republic of Poland "Monitor Polski", method and criteria for determination:
3. permanent irreversible cessation of brain function (brain death);
4. irreversible cardiac arrest preceding organ procurement.
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