This is an edited version of an article which
appeared in the New England Journal of Medicine, April 2001.
Alexander Morgan Capron, LL.B.
University of Southern California
Los Angeles, CA 90089-0071
If one subject in health law and bioethics can be said to be
at once well settled and persistently unresolved, it is how to
determine that death has occurred. Once this determination involved
simply the measurement of vital signs. It was as often performed
by laypersons as by physicians. Now it is often a complex matter
requiring specialized expertise and raising both conceptual and
practical difficulties.
In the majority of cases, death is diagnosed on the basis of
the irreversible cessation of circulatory and respiratory functions.
But beginning in the middle of the 20th century, increasingly
sophisticated means were developed to sustain the life of patients
with head trauma or brain hemorrhage. The result was a growing
number of patients whose cardiopulmonary functions had been restored
but who were profoundly and persistently unconscious and unresponsive.
Once it became apparent that pharmaceutical and mechanical interventions
could make it impossible to rely on traditional vital signs, such
as heartbeat and respiration, in determining whether patients
were still alive (albeit dying) or, as indicated by the state
of their brains at autopsy, had in fact already died, neurologists,
neurosurgeons, anesthesiologists, and other physicians developed
guidelines for making neurologically based determinations.
The current standards in the US for example represent only a
minor evolution from the first such guidelines promulgated by
a committee at Harvard Medical School in 1968. Yet the breadth
and durability of this consensus have not kept discussions of
brain death free from metaphysical, cultural, legal, and medical
controversy.
The Ad Hoc Committee of the Harvard Medical School to Examine
the Definition of Brain Death, introduced what continues to be
a basic problem by using a term ("death") that is appropriate
for organisms to describe the loss of function in an organ (the
brain). Moreover, the title of the committee's report, "A
Definition of Irreversible Coma," suggested that what was
involved was defining death — that is, describing a concept
rather than providing criteria for diagnosing a condition. It
also suggested that brain death could be equated with irreversible
coma, which is a condition of (limited) life, not of death, as
the French indicated when they first described the state of death
as one "beyond coma."
Since "brain-dead" patients show such traditional
signs of life as warm, moist skin, a pulse, and breathing, it
is not surprising that many people seem to think that "brain
death" is a separate type of death that occurs before "real"
death. This confusion is reinforced when hospital personnel state
— and journalists repeat — that "life support"
is being removed from such patients.
More than confusion is at work here, however. Since the word
"brain" usually refers to cognition, critics of the
Uniform Determination of Death Act (and of the existing medical
consensus) believe that the law should equate death with the loss
of functions in the higher brain rather than the whole brain.
Two philosophical positions are advanced: that permanent unconsciousness
negates personhood because to be a person (as opposed to merely
a human being) one must possess at least the potential for thought,
and that it destroys personal identity, which depends on self-awareness
and the continuity of one's personal history. There are inherent
difficulties in translating such "higher-brain" concepts
into policy, to say nothing of their radical implications —
namely, that patients in a persistent vegetative state, as well,
perhaps, as severely demented or retarded persons, ought to be
declared dead.
In addition the current concept of death has been challenged
on medical grounds: some biologic activity, which the commentators
believe constitutes important brain functions, remains in some
bodies found to have suffered an "irreversible loss of all
functions of the entire brain."
Of course, in the long term, as more is learned about neurologic
functions and especially as means are developed for the replacement
or regeneration of such functions, the whole notion of irreversible
loss of brain functions will need to be revisited.
At present, physicians can confidently apply the criteria and
tests for determining death as described by Wijdicks. They should,
however, use great care in doing so (because so much turns on
the accuracy of their determinations) and should also strive to
be clear about the conceptual foundations of the definition they
are implementing. Doctors should avoid terms such as "brain
death" and allow families time to understand the basis of
a diagnosis of death that is not self-evident when the respirator-supported
body of their loved one manifests many outward signs of life.
In this way, physicians can diminish the confusion of the public
and health care personnel alike.
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