Whilst living donation makes an increasing contribution to rates of organ transplantation in the United Kingdom (UK), its obvious clinical limitations, along with lack of progress with stem cell research or xenotransplantation, mean that transplantation overall continues to rely heavily on the retrieval of organs from people who have died. Deceased donation is associated with a unique constellation of clinical, ethical and legal challenges that represent real obstacles to achieving any increase in the number of deceased organ donors. For instance, whilst the distinction between life and death appears self-evident, the moment of transition from one state to the other remains a matter of some debate. Furthermore, even if we have interests that survive our deaths, our nature – and thus what constitutes, for example, harm – changes radically post-mortem. While we live, our rights in medical law stem from our interests and their protection. Presumptively, individuals are best placed to judge their interests: hence requirements of consent and the right of patients to choose between interventions or ultimately to refuse any intervention. Although matters become more complicated for patients without decision-making capacity, the law maintains that:

1. interests should be protected;

2. a plurality of values underpin interests, so benefit and harm do not hold static or universal senses; and

3. default positions on benefit and harm may be ignored for patients lacking capacity where there is evidence that their values underpin a particular best interests judgement requiring this.

This chapter addresses the following central questions: if death is imminent, but a patient is still alive, how does this constrain how we may treat him or her, and understand his or her best interests?