Procedures for determining brain death. RPO writes to the Supreme Medical Council on the issue

• Procedures for determining permanent irreversible cessation of brain function are today regulated by notices of the Minister of Health, which are not sources of generally applicable law
• The Ombudsman is asking the Supreme Medical Council for its position on whether these procedures should be regulated in an act that is a source of universally binding law 

December 7, 2015. The Ombudsman requested the Constitutional Court to declare that Article 9(3) of the July 1, 2005 Law on the Collection, Storage and Transplantation of Cells, Tissues and Organs - insofar as it authorizes the Minister of Health to announce by proclamation the method for determining permanent irreversible cessation of brain function - is incompatible with Article 38 in conjunction with Article 31(3) and Article 87(1) of the Constitution. 

The Ombudsman's doubts were aroused by the regulation, in an act that is not a source of universally binding law, of a procedure the performance of which made it possible to declare permanent irreversible cessation of brain function - which was tantamount to declaring the patient dead. 

However, the TK proceedings were discontinued due to a change in the legal status. Analyses are currently underway related to the reopening of the case before the TC. 

These issues are regulated by the Law of December 5, 1996 on the Profession of Physician and Dentist. In its light, the determination of permanent irreversible cessation of brain function (brain death) or irreversible cardiac arrest - preceding organ donation - is tantamount to a declaration of death. The relevant procedures are set forth in the announcement of the Minister of Health of December 4, 2019 on the manner and criteria for determining permanent irreversible cessation of brain function and the announcement of the Minister of Health of August 9, 2010 on the criteria and manner for determining irreversible cardiac arrest.

These acts are not sources of generally applicable law. The literature expresses the view that the announcement of the Ministry of Health on December 4, 2019 is not normative in nature and contains guidance, guidelines and comments based on the latest medical knowledge and established by specialists in various fields of medicine.

RPO Marcin Wiącek asks NRL President Lukasz Jankowski for the position of the medical self-government as to whether the procedures in question should be regulated in an act that is a source of universally binding law. He also asks for an opinion on the issue of whether Article 43a (3) of the A.s.l. is understood in practice as authorizing the Minister of Health to issue a notice referring only to objective physical regularities established on the basis of current medical knowledge, or containing normative novelty, i.e. introducing elements that have not been directly specified by law.

Source: RPO