The intractable problems with brain death and possible solutions

Brain death has been accepted worldwide medically and legally as the biological state of death of the organism. Nevertheless, the literature has described persistent problems with this acceptance ever since brain death was described. Many of these problems are not widely known or properly understood by much of the medical community. Here we aim to clarify these issues, based on the two intractable problems in the brain death debates. First, the metaphysical problem: there is no reason that withstands critical scrutiny to believe that BD is the state of biological death of the human organism. Second, the epistemic problem: there is no way currently to diagnose the state of BD, the irreversible loss of all brain functions, using clinical tests and ancillary tests, given potential confounders to testing. We discuss these problems and their main objections and conclude that these problems are intractable in that there has been no acceptable solution offered other than bare assertions of an ‘operational definition’ of death. We present possible ways to move forward that accept both the metaphysical problem - that BD is not biological death of the human organism - and the epistemic problem - that as currently diagnosed, BD is a devastating neurological state where recovery of sentience is very unlikely, but not a confirmed state of irreversible loss of all [critical] brain functions. We argue that the best solution is to abandon the dead donor rule, thus allowing vital organ donation from patients currently diagnosed as BD, assuming appropriate changes are made to the consent process and to laws about killing.

What Is Death?

This chapter discusses how the line between life and death has been blurred by advances in science and technology. For much of human history, determining death was a straightforward process. When illness or injury caused the irreversible loss of heart, lung, or brain function, their mutual interdependence meant that the other vital functions would inevitably cease within a matter of minutes. A physician could declare a patient dead simply by showing the absence of a heartbeat, breathing, or reaction of the eye to light. The introduction of new medical procedures in the 1950s, including mechanical ventilation and cardiopulmonary resuscitation (CPR), meant that a person whose heart had stopped beating, or lungs had stopped breathing, could be kept alive. These patients presented a problem for the traditional understanding of death because they had irreversibly lost some vital functions, but not others. To understand the nature of human death, one must begin by defining the concept: what is it for any living thing to die? Having answered this metaphysical question, one can move to an epistemological one: what is the appropriate standard for judging that something has met the definition of death? Finally, one requires criteria and tests to affirm that the epistemological standard has been met: when can we confidently say that someone is dead?

Death Education: An Educational Approach to Death and Dying

This paper explains the importance of education in the dying process and outlines a full curriculum to create a society more prepared for difficult end-of-life situations. This course is structured to be taught as a high school elective course in which the principles and approaches to death and dying are discussed in depth. For a high school student, death can be approached from diverse perspectives. Within these perspectives, there are several vital topics to understand in order to ensure a student’s proper education on death. The complexity of death is represented by the titles of the nine chapters of the course. Chapter One, titled “Definition of Death, Consciousness, and Persistent Vegetative State,” highlights the development of death throughout history, the general consensus about death today, and the morality of different levels of treatment for dying patients. Chapter Two, “End Stage Medical Conditions,” outlines the most common end-of-life health conditions along with their symptoms and possible treatments. In Chapter Three, titled “Bad News and Communication,” the course introduces patient-physician communication, the current shortcomings of medical education in this vital area, and the possible protocols for effectively conveying both truth and support to a patient. Chapter Four, labelled “Do Not Resuscitate Orders, Living Wills/Advance Directives, and Durable Powers of Attorney for Health Care,” presents the appropriate options available to prepare for a patient’s inability to make informed decisions autonomously. Chapter Five, “Ordinary vs. Extraordinary Means: The Issue of Tube Feedings,” discusses the distinction between different types of end-of-life treatment and when certain treatments can be morally excused. Chapter Six, titled “Palliative Care and Hospice: A Paradigm for End-of-Life Care,” gives effective options for terminally ill patients that ensure care is never stopped and a patient's dignity is never lost. Chapter Seven, “Pain Management,” highlights the difficulties and recommendations for establishing proper pain management. Chapter Eight, entitled “Medical Futility,” presents the debate surrounding patient autonomy with physician’s beneficence and nonmaleficence, forgoing and requesting treatments, and the values associated with this issue. Finally Chapter Nine, titled “Spirituality and End of Life Care,” emphasizes the inevitable linkage between healthcare, death, and spirituality and the benefits of proper support for a patient. This paper also highlights the ethical implications surrounding the death and dying process. The importance of this subject lies within the death-denying reality that society is today in which death is avoided and human dignity is increasingly sacrificed as a result. Discussions and education among society’s youngest adults can improve general knowledge about the dying process and lead to overall better preparation for handling this inevitable stage of humanity.

Heart surgery and transplantation: innovations impacting on concepts of life and death

The development of heart surgery is briefly reviewed, and the impact it has made on our concepts of life and death are considered. For centuries, death was defined by the cessation of heart beat. In the early days of heart surgery in the 1940s and 1950s, the heart sometimes temporarily stopped beating, but could be resuscitated, and some concluded that the patient had been ‘dead’ for a period of time. Subsequently, when the patient’s brain and other vital organs were protected either by the induction of a state of total body hypothermia or by the support of a heart-lung machine, the heart was purposely stopped from beating for periods of a few minutes to even several hours, but the patient remained alive. When heart transplantation was introduced in 1967, for a period of time the patient not only had no heartbeat, but had no heart, yet was not dead. When total artificial hearts were introduced, the patient permanently had no heart, but remained alive. In the near future, it is likely that the native heart will be permanently replaced by a genetically-engineered pig heart. Organ transplantation, particularly of the heart, contributed further to our changing concepts of life and death. In 1963, surgeons began to remove organs from donors whose brain had been irreversibly damaged, and had been diagnosed as being ‘brain-dead’, but in whom the heart was still beating. By 1968, the beating heart was routinely removed from brain-dead donors and transplanted into recipients, but this was no longer considered to be illegal as brain death had become the definitive definition of death, not lack of a heart beat or even lack of a heart.

Statement of death in Russian legislation (critical analysis of article 66 of federal law «On fundamental healthcare principles in the Russian Federation» of 21.11.2011 №323-FL)

Aim. Analysis of some controversial provisions of Article (Art.) 66 Determination of the Moment of Death of a Person and of Termination of Resuscitation Activities of Federal law On Fundamental Healthcare Principles in the Russian Federation of November 21, 2011 №323-FL (FL 323) directly concerning the issue of death of a person, and justification of making amendments to the title and text of the above mentioned norm. Due to the absence of definition of the concept of death in FL 323, the author presents his own definition of death of a person. The used term the moment of death of a person as a determinant/indicator of the occurrence of death seems to be erroneous. This term cannot be extended to the fact of biological death. Under FL 323, death of the brain is considered to be equivalent to death of a person and today is inextricably linked with organ transplantation. However, in reality it is not so, and in this sense it is a typical juridical fiction that justifies legal removal of organs from living patients. Amendments to the title and wording of Article 66 FL 323 are proposed.

Diagnosing Death

It was not always doctors who diagnosed death. Advances in resuscitation and fears of premature burial led to doctors having a duty to diagnose death in a safe and timely way. The birth of intensive care in the twentieth century demonstrated that it was possible for the heart to keep beating even after the brain had permanently ceased functioning. A worldwide, unifying, brain-based definition of death could be termed ‘permanent brain arrest’. The clinical characteristics of permanent brain arrest would be the permanent loss of capacity for consciousness and loss of all brainstem functions (including the capacity to breathe), which might arise from primary brain injury or secondary to circulatory arrest. Three sets of criteria are used by doctors to diagnose death, depending on the clinical circumstances: forensic, circulatory, and neurological. All three sets of criteria point to the same brain-based definition of death. While there is widespread consensus for these standards—in practice and in law—they are not without criticism.

10. Dying and Death

This chapter examines the legal and ethical aspects of death. It begins with a discussion of the difficulty of the choosing a definition of ‘death’. It then sets out the law on a range of ‘end-of-life issues’, including euthanasia, assisted suicide, and refusal of medical treatment. It considers some particularly complex cases in which the law is not always easy to apply. These include the administration of pain-relieving drugs, the treatment of severely disabled newborn children, and the position of patients suffering from PVS. Next, the chapter considers the ethical debates surrounding euthanasia, assisted suicide, and terminating treatment. This is followed by a discussion of palliative care and hospices.

Brain death in early pregnancy: A legal and ethical challenge coming to your intensive care unit?

Increasingly, reports are emerging of maternal physiological support after brain death in pregnant women declared brain dead long before the gestational age of foetal viability. While these ‘miracle babies’ often receive significant media attention – such as the recent case of Catarina Sequeira – it is difficult to estimate the probability of a live birth in such circumstances given a clear publication bias in favour of reporting good outcomes. In a number of highly publicised cases, continuation of maternal physiological support after brain death has been attempted against the express wishes of the patient's family in jurisdictions where a foetal right to life is given weight in law. The legal issues around discontinuation of maternal physiological support after brain death have not yet been assessed by a UK court. The scenario is easily envisioned, however, where conflict emerges as to the appropriateness of such support. While there is no statutory definition of death in the UK, the courts have accepted brain-dead patients as legally dead upon completion of brainstem testing. However, as UK law grants few explicit legal rights to a foetus, it is unclear as to how conflicts are to be resolved. This article is not intended as a systematic review of the medical or legal academic literature, nor as a review of the clinical management of the pregnant brain-dead patient; rather, it aims to summarise the evidence base for maternal physiological support after brain death and the relevant case law. Using a recent case as an example, this article will outline the legal approach to death in the UK, contrast the status in law of a brain-dead mother and her foetus, and advance an argument of the circumstances in which maternal physiological support after brain death may be ethically justifiable. The authors hope this will assist the UK intensivist in the complex decision-making such cases demand.

The law and death

Richard Griffith, Senior Lecturer in Health Law at Swansea University, considers the legal definition of death and the law relating to the disposal of a body after death