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Liang & Minelli on Substance Use & Transplant Candidates

By Lawrence Solum

Bryan A. Liang and Erin Minelli (Institute of Health Law Studies, California Western School of Law and Institute of Health Law Studies, California Western School of Law) have posted Transplant Candidates and Substance Use: Adopting Rational Health Policy for Resource Allocation (University of Michigan Journal of Law Reform, Forthcoming) on SSRN. Here is the abstract:

Organ transplant candidates are often denied life saving organs on account of their medical marijuana drug use. Individuals who smoke medicinal marijuana are typically classified as substance abusers, and ultimately deemed ineligible for transplantation, despite their receipt of the drug under lawful prescription and with a physician?s supervision. However patients who smoke cigarettes or engage in excessive alcohol consumption are routinely considered for placement on the national organ transplant waiting list. Transplant facilities have the freedom to regulate patient selection criteria with minimal oversight. As a result, the current organ allocation system in the United States is rife with inconsistencies and results in disparities in allocation decisions. This Article reviews the history and underlying rationale of organ allocation in the U.S., and the National Organ Transplant Act. It then examines ill-founded policies regarding transplant candidates who present issues of substance ?abuse? compared with substance ?use?, and the resulting disparities in waiting-list criteria. In response, a model policy for a national set of patient selection guidelines is provided. This policy distinguishes between candidates who present issues of substance use, versus substance abuse. Definitions of such terms, and distinctions regarding proper patient classification are provided. Protocols for a second chance policy to be used in the event of a relapse among wait-listed patients are also given. Finally, stipulations that require designated abstention periods as well as random drug screenings in relation to subsequent re-listing are also included. The use of such a model allocation policy will promote equity and scientific bases in the organ allocation process.

Full post as published by Legal Theory Blog on August 07, 2010 (boomark / email).