Brain Death and the Law: <i>Hard Cases and Legal Challenges</i>

Pope, Thaddeus Mason

doi:10.1002/hast.954

Cited by 33 publications

(35 citation statements)

References 1 publication

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“…4,5 While most of the debate has been conducted in the scientific and ethical literature, in recent years there have been several international legal challenges to its validity in individual cases. 6,7 Although it is claimed that the concept of BD is 'certain', 8 in the lay media there appears to be significant uncertainty. Media reports frequently highlight cases of patients apparently diagnosed as 'brain dead' who recover.…”

Section: Introductionmentioning

confidence: 99%

Death, dying and donation: community perceptions of brain death and their relationship to decisions regarding withdrawal of vital organ support and organ donation

Skowronski

O’Leary

Critchley

et al. 2020

Internal Medicine Journal

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Despite brain death (BD) being established as a definition of death for over 50 years, the concept remains controversial. Little is known about public perception of death determination in decision-making about withdrawal of organ support and organ donation (OD), and the importance of the 'Dead Donor Rule' (DDR). We examined perceptions about death in a BD patient and their relationship to decisions about withdrawal of vital organ support, OD and the DDR, using an online survey of 1017 Australian adults. A BD patient scenario was presented, followed by a series of questions. Statistically significant differences in responses were determined using repeated measures analyses of variance and t tests. Seven hundred and fourteen respondents (70.2%) agreed that a hypothetical BD patient was dead. Those disagreeing most commonly cited the presence of heartbeat and breathing. Seven hundred and seventy (75.7%) favoured removal of 'life support', including 136 (13.3%) who had not agreed the patient was dead. Support for OD was high, but most favoured organ removal only after heartbeat and breathing had ceased. Where OD was in keeping with the patient's known wishes, 464 (45.6%) agreed that organs could be removed even if this caused death. Forty-one (20%) of those who had indicated they considered the patient was not dead agreed to organ removal even if it caused death. Australian public views on BD, withdrawal of 'life support' and OD are complex. Emphasis on prognosis and the impact of significant brain injury may be more appropriate in these situations, rather than focussing on death determination and upholding the DDR.

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Section: Introductionmentioning

confidence: 99%

Death, dying and donation: community perceptions of brain death and their relationship to decisions regarding withdrawal of vital organ support and organ donation

Skowronski

O’Leary

Critchley

et al. 2020

Internal Medicine Journal

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show abstract

“…Thus, the ongoing opposition to BD, as manifested in the increased numbers of scholarly anti-BD articles over the last two to three decades, has not made any impact on lawmakers. Consequently, “the law concerning brain death has remained stable for decades” (Pope 2018, S46). Thus, from the perspective of BD advocates, the growing resistance to BD on the part of families and resulting increase in lawsuits (especially since the McMath case in 2013) has much to do with their misunderstanding or confusion about BD (Burkle, Sharp, and Wijdicks 2014).…”

Section: Bd and The Udda—a Brief Historical Backgroundmentioning

confidence: 99%

“…In recent years, the heated contention has moved from academic circles into the courtrooms, as more families of patients declared brain-dead have become emboldened to file lawsuits challenging the legitimacy of DNC. 1 As Pope (2018, S46) points out, “leading medical professional societies and organ procurement organizations are deeply concerned that these challenges are eroding public trust in the concept of brain death.”…”

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confidence: 99%

Does the Uniform Determination of Death Act Need to Be Revised?

Nguyen

2020

Linacre Q

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Prompted by concerns raised by the rise in litigations, which challenge the legal status of brain death (BD), Lewis and colleagues recently proposed a revision of the Uniform Determination of Death Act (UDDA). The revision consists of (i) narrowing down the definition of BD to the loss of specific brain functions, namely those functions that can be assessed on bedside neurological examination; (ii) requiring that the determination of BD must be in accordance with the specific guidelines designated in the revision; and (iii) eliminating the necessity for obtaining consent prior to performing the tests for BD determination. By analyzing Lewis and colleagues’ revision, this article shows that this revision is fraught with difficulties. Therefore, this article also proposes two approaches for an ethical revision of the UDDA; the first is in accordance with scientific realism and Christian anthropology, while the second is grounded in trust and respect for persons. If the UDDA is to be revised, then it should be based on sound ethical principles in order to resolve the ongoing BD controversies and rebuild public trust. Summary: This article critically examines the recent revision of the Uniform Determination of Death Act (UDDA) advanced by Lewis and colleagues. The revision only further reinforces the status quo of brain death without taking into account the root cause of the litigations and controversies about the declaration of death by neurological criteria. In view of this deficiency, this article offers two approaches to revising the UDDA, both of which are founded on sound moral principles.

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“…Although current approaches to obtaining informed consent for organ donation have been criticized as deceptive and should be reformed to describe what is known about brain death more accurately, the system of organ procurement could be ethically justified if valid consent was obtained. Yet legal disputes between families and hospitals, which seem to be becoming more common, have the potential to upend our system of determining death by neurological criteria and the practice of organ transplantation from brain‐dead donors …”

Section: Introductionmentioning

confidence: 99%

Rethinking Brain Death as a Legal Fiction: Is the Terminology the Problem?

Shah¹

2018

Hastings Center Report

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Brain death, or the determination of death by neurological criteria, has been described as a legal fiction. Legal fictions are devices by which the law treats two analogous things (in this case, biological death and brain death) in the same way so that the law developed for one can also cover the other. Some scholars argue that brain death should be understood as a fiction for two reasons: the way brain death is determined does not actually satisfy legal criteria requiring the permanent cessation of all brain function, and brain death is not consistent with the biological conception of death as involving the irreversible cessation of the functioning of an organism as a whole. Critics counter that the idea that brain death is a legal fiction is deceptive and undemocratic. I will argue that diagnosing brain death as a hidden legal fiction is a helpful way to understand its historical development and current status. For the legal‐fictions approach to be ethically justifiable, however, the fact that brain death is a legal fiction not aligned with the standard biological conception of death must be acknowledged and made transparent.

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Brain Death and the Law: Hard Cases and Legal Challenges

Cited by 33 publications

References 1 publication

Death, dying and donation: community perceptions of brain death and their relationship to decisions regarding withdrawal of vital organ support and organ donation

Death, dying and donation: community perceptions of brain death and their relationship to decisions regarding withdrawal of vital organ support and organ donation

Does the Uniform Determination of Death Act Need to Be Revised?

Rethinking Brain Death as a Legal Fiction: Is the Terminology the Problem?

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