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• Diagnosing Death - practical vs. philosophical
  Daniel JR Harvey
  Published on: 18 May 2017
• Death and legal fictions
  David W Evans
  Published on: 18 May 2017

• Published on: 18 May 2017

  Diagnosing Death - practical vs. philosophical

  • Daniel JR Harvey, Consultant, Intensive Care Medicine
  • Other Contributors:
    • Dale Gardiner

  Dear Editor,

  Recent attacks on the medical criteria for diagnosing death have, in our opinion, reached such a degree of sophistry that the debate is in danger of becoming irrelevant to doctors and patients alike1 2 .Doctors have a job to do, to diagnose the dead.

  Dying is a process, decay effects different functions and cells of the body at different rates. Doctors must decide at what moment along this pr...

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  Dear Editor,

  Recent attacks on the medical criteria for diagnosing death have, in our opinion, reached such a degree of sophistry that the debate is in danger of becoming irrelevant to doctors and patients alike1 2 .Doctors have a job to do, to diagnose the dead.

  Dying is a process, decay effects different functions and cells of the body at different rates. Doctors must decide at what moment along this process there is permanence and death can be appropriately declared. This is not a 'legal fiction', this is a doctor's solemn duty.

  Here we feel obliged to correct a common misunderstanding. The majority of deaths following cardiac arrest, as diagnosed in every hospital worldwide, rest on the doctor's intention not to attempt cardiopulmonary resuscitation and not a literal definition of 'irreversibility', that is a circulation that cannot be restored using any currently available technology. Unless one is prepared to undertake cardiac massage, direct cardiac defibrillation and perhaps extra-corporeal membrane oxygenation prior to diagnosing anyone in hospital as dead, no one can know that the heart has irreversibly ceased. DeVita's work suggests that if a literal definition of irreversible loss of function is used to define death, then brain death does not occur for one hour after cerebral circulatory arrest, whilst for the heart it would be many hours 3 . This would lead to a death watch in which there would be no place for a stethoscope and modern medicine would be turned back 150 years, to a time when only the satisfaction of rigor mortis was accepted, yet still not publically trusted. Likewise the concept that doctors should not declare death in patients confirmed deceased using neurological criteria, because a decapitated body has living cells and the potential for function, has no relevance to our duty to make a timely diagnosis of death whilst avoiding any diagnostic errors.

  What these attacks amount to is a request that death can only be diagnosed if there is total cellular dis-integration, a process likely to take many months, and will require hospitals for the dead as used in bygone centuries. If it is the need for more organs that motivates this continual undermining of diagnostic criteria for death, we would urge philosophers to directly attack the donor rule, and leave the dead rule to doctors.

  References

  1. Miller FG, Truog RD. Decapitation and the definition of death. J Med Ethics. 2010;36:632-634.

  2. Shah SK, Truog RD, Miller FG. Death and legal fictions. J Med Ethics. 2011.

  3. DeVita MA. The death watch: certifying death using cardiac criteria. Prog Transplant. 2001;11:58-66.

  Conflict of Interest:

  None declared

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  Conflict of Interest:
  None declared.

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• Published on: 18 May 2017

  Death and legal fictions

  • David W Evans, Retired physician

  Shah, Truog and Miller(1) argue that current death determination practice for organ procurement purposes does not conform to a scientifically coherent understanding of death and that vital organs are being taken from still-living donors. This has been known to those who read the medical and scientific literature for some time but, as they say, the public has not been informed. Fearing that this information cannot be hidd...

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  Shah, Truog and Miller(1) argue that current death determination practice for organ procurement purposes does not conform to a scientifically coherent understanding of death and that vital organs are being taken from still-living donors. This has been known to those who read the medical and scientific literature for some time but, as they say, the public has not been informed. Fearing that this information cannot be hidden for much longer, the authors suggest that the legal fictions involved in death diagnosis for these purposes should be openly acknowledged "to harmonise our current practices of organ donation with the law and allow the public to gradually become aware of the realities in how we determine death".

  To those of us with a regard for the truth, and a feeling for fair play and honest dealing, that looks like an highly distasteful policy of continuing deceit. Now that it is clear that "brain death" in its many and various forms (including "brain stem death"), and the diagnosis of death after very brief periods of cardiac arrest, are inventions for the purpose with no claim to be equated with death on any agreed conceptual basis, it is surely time for this to be made generally known. Otherwise there will be continuing risk, or likelihood, that members of the public will register as prospective donors on a misunderstanding of what those words - "after my death" - on the NHS Organ Donor Register application forms really mean. And there is urgent need for the re-education of transplant coordinators to ensure that they no longer risk persuading vulnerable parents to donate their children's organs on the false premise that their deaths have been diagnosed by brain stem testing.

  In short, there is a clear duty imposed upon editors of the major medical journals to inform our profession of the new situation without delay. Full and fair information of the public would follow naturally. If there are thought to be legal implications of this enlightenment for UK practice, as opposed to the statutory death certification practice of concern to Shah and his colleagues, these could then be considered in the light of informed public opinion - its real level of support for organ transplantation being unknown to date.

  Shah and colleagues argue that donors misdiagnosed "dead" are not harmed by having their organs removed while still alive. That statement seems to be based upon assertions that donors are permanently unconscious although they admit that "physicians may not have the diagnostic tools to reliably determine when consciousness is permanently lost" and it should be noted that there are real concerns that both heart-beating and non- heart-beating donors may retain the capacity to suffer(2). There is certainly the possibility of causing distress to potential donors by caloric testing to see if they don't respond and can be diagnosed "dead" on brain stem grounds, and of exacerbating brain damage by apnoea testing(3) for that purpose. There must also be risk of causing suffering to those identified as non-heart-beating donors by their pre-arrest cannulation and perfusion for organ preservation purposes.

  In the more general sense it may be asked if there is risk to trust in the medical profession when doctors are disingenuous about the diagnosis of so important a matter as death and prepared to remove organs from those not unequivocally dead - a procedure which kills the still- living(4). And it may be time to question the whole edifice of human organ transplantation - which depends upon abuse of the dying or harming the healthy.

  References

  1. Shah SK, Truog RD, Miller FG. Death and donation. J Med Ethics 2011.doi:10.1136/jme.2011.045385

  2. Verheijde JL, Rady MY. Justifying physician-assisted death in organ donation. Amer J Bioethics 2011; 11: 52-4

  3. Coimbra CG. Implications of ischemic penumbra for the diagnosis of brain death. Braz J Med Biol Res 1999; 32:1479-87

  4. Potts M, Evans DW. Does it matter that organ donors are not dead? Ethical and policy implications. J Med Ethics 2005; 31: 406-9

  Conflict of Interest:

  None declared

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  Conflict of Interest:
  None declared.

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