#17391 - Death, Dying, End Of Life - Medical Law

DEATH, DYING, END OF LIFE ISSUES

Notes:

• I quite agree with Herring’s position, bear in mind that the average person seeking death isn’t Nicklinson or Pretty, they are vulnerable individuals suffering from mental health conditions, often lacking capacity!

• CURRENT LEGAL POSTION

  • Acts that lead to death

    • Never allowed (Bland)

    • Except maybe in necessity cases? (Re A Conjoined Twins)

  • Omissions that lead to death

    • Allowed with competent P’s consent, or if in an incompetent P’s best interests

    • See Bland (withdrawal of ANH)

  • “Lead to” means a but-for condition -> but does not imply causation

    • The same way that marriage is a but-for condition of divorce, but no one says that marriage causes divorce

Herring, Chapter 9: Dying and Death

Introduction

• Attitudes towards dying have changed: previously something that happened and had to be accepted, but with tech advancements it has become possible to exercise greater control

• Common to seek a ‘dignified death’

  • But some complain that this is a false expectation – death is normally ugly and painful and we should accept this as a fact of life

• 2 observations

  • (1) Coggon suggests that arguments over euthanasia are ‘a debate that’s being done to death’. Yet, it’s hard to see the debate progressing – the same arguments are being repeated with little sense of a growing consensus

  • (2) important to remember that there are other crucial issues around issue of dying other than assisted dying (e.g. those in poverty, abysmal living conditions, abandoned by families, socially excluded, isolated, neglected by communities)

    • Herring: suggests that instead of the immense amount of time and political energy spent on euthanasia, maybe we should focus on improving the lives of older people, improving the quality of palliative care, and combatting ageist attitudes

1. What is death?

• 1.2 Legal definition of death

  • Bland, Lords Browne-Wilkinson, Goff and Keith: accepted that brain stem death was the definition of death for the purposes of medicine and law

    • Held: P, although suffering from persistent vegetative state (PVS), was not brain stem dead and thus was still alive

  • Confirmed in Re A (A Child), although Hayden J went on to say that it did not follow that if the family took a different view from the legal definition, that it would be appropriate to conduct a post mortem on the body

    • “The facts of this case are a reminder once again that in a multi-cultural society there has to be recognition that people, particularly those with strong religious beliefs, may differ with medical professionals as to when death occurs. In the Christian, Muslim and Jewish faiths the concept of the 'breath of life' has ancient and important resonance . It is hardly difficult to understand why the still breathing body is regarded as alive, even though 'breath' may be entirely delivered by machine. An insistence on a legally precise definition of death to trigger the involvement of the Coroner, in such challenging circumstances is, in my judgment, so obviously wrong as to be redundant of any contrary argument.”

  • Safest statement = at present, legal definition of death coincides with medical one

• 1.3 Alternative definitions of death

  • (1) brain stem death

    • Claimed that person whose brain stem is dead has ceased to live in anything but a mechanical way

    • Requirements (set out in Department of Health’s A Code for Practice for the Diagnosis of Brain Stem Death)

      • (i) must be concluded that coma is not the result of reversible causes, such as drug overdose

      • (ii) must be demonstrated that several components of the brain stem have all been permanently destroyed. This includes respiratory centre

      • (iii) must be proved that patient is unable to breathe spontaneously

    • Proponents rely on 2 arguments in favour

      • (i) once the brain ceases to operate, then the body has lost its integrated whole

      • (ii) once the brain stem has gone, all that gives life value has been lost

    • Critique

      • Elevates the brain to being the essential organ of the person

        • Glannon: “We are not just our brains but subjects whose ordered and disordered states of mind are the products of continuous interaction between and among the brain, body, and the social and natural world. The brain is not the sole cause of the mind but a relational organ that shapes and is shaped by the mind in mediating interaction between the embodied subject and the world”

      • To declare the body dead when only part of it (the brain) is not working reveals too narrow an understanding of the body

        • Joffe: many other functions (growth, execration, gestation) continue

      • Veatch: imagines future where brain transplants will be possible

      • To be classified as dead even when one’s body is warm and breathing creates too wide a gap between the legal meaning of ‘death’ and its understanding by lay people

  • (2) end of breathing

    • = moment at which a patient's heart stopped pumping and breathing ceased

    • But medical advancements have made this definition problematic: stopping of heart does not lead to an end of brain activity

    • Proponents (e.g. Danish Council of Ethics)

      • Take the view that the definition of death is not a technical question, but must be decided in terms of how the community as a whole understands death

        • Argued that the person in the street would view the stopping of the beating heart as the criterion for death, because the heart is widely seen as a symbol of life

        • Thus, even if not logically or philosophically justifiable, beating heart is intuitively felt to be the essential

  • (3) end of organism

    • = if body is seen as a ‘working organism’ with various functions, then it’s possible to define death as when that organism ceases to achieve those functions

      • E.g. ventilation, circulation, nutrition, elimination of waste products

      • Only once all these functions are no longer being performed should the body be said to have died

    • Critique:

      • Treats body like a piece of machinery, most people regard their bodies as more than an organism that performs these functions

      • Overlooks what most people regard as most important about their bodies: feelings, thoughts, emotions etc.

  • (4) death of every cell

    • = at the state when the body has begun to putrefy (very extreme view)

  • (5) death as a process

    • Sometimes there’s a clear instant of death (e.g. if blown up in an explosion), but where death is ‘natural’, there’s no easy cut-off point that marks the line between life/ death

    • Problem: law, relatives, and professionals require a clear point in time when someone has died

      • Response: P could be treated as dead for different purposes at different times

      • E.g. there could be one point in time in the process at which P is declared dead for the purpose of removal of organs for transplant, but another at which he/ she is dead for the purposes of burial or cremation

  • (6) desoulment

    • = for those of a religious persuasion, death is often defined as the moment at which the soul leaves the body and moves on to the afterlife

    • Critique

      • Rejected by those who deny the existence of a soul

      • Even if accepted, the moment of desoulment is not apparent to humans and therefore cannot readily provide a basis of a legal or medical test

  • (7) consciousness or social interaction

    • To some, the definition of death should depend on what we understand it is to be human (some define this as a consciousness of one's self or others/ ability to interact with other people) without which, P has lost an essential part of being human

    • Critique

      • Would lead to a far wider classification of death than what is used at present (e.g. those suffering from PVS would be regarded as dead)

      • Also consider those with severe mental conditions as dead

  • (8) choose your own

    • Bagheri: because there are so many definitions of death and they all depend on one's theological, spiritual, or political beliefs, it is best to let each person decide what he or she would like the definition of death to be

    • Critique

      • Would still need some ‘fallback’ position for cases in which someone had failed to indicate what they wanted their definition of death to be

      • Would also, presumably, be some definitions of death that would be unacceptable, and so not permitted

        • Zeiler suggests that there should be a range of alternative acceptable definitions from among which people can select their preferred option

  • (9) avoiding the issue of death

    • Could instead ask: at what point is it appropriate to authorize burials of bodies? When can organs be removed from a body for transplant to another? When can a person whose body is being artificially ventilated have the machine switched off?

• 1.4 Choosing between the definitions

  • Lamb: 'It is as wrong to treat the living as dead as it is to treat the dead as alive.'

    • Important to mark point of death neither too early nor too late

    • Are they equally serious? Delaying grieving process/ wasting resources on treating a dead person is probably less serious than burying a person who is alive

  • Difference 1: emphasising life as being about conscious awareness VS understanding the body as a living organism

    • But most people think both POVs are valid

    • One solution is to accept that we die twice: once when we lose consciousness, once when our biological organism stops functioning

  • Difference 2: do we appreciate death from the POV of the dying P, or from that of their carers?

    • Brain stem death will be the point at which the dying person will lose all appreciation of life, but cessation of breathing will be the point at which the person will appear to have died to onlookers

      • But note that the stopping of...