#1723 - Law And Death Definitions - Medical Law

Law and Death Definitions

What is Death?

• The legal definition of death

  • Bland

    • Lords Browne Wilkinson, Goff and Keith:

      • Brain stem death is the definition of death for the purposes of medicine and law

        • Since B is suffering from PVS and is not brain stem dead, he is therefore alive.

  • Re C (A Minor) (Medical Treatment)

    • This probably therefore means that the legal definition of death will coincide with the medical one,

      • whatever the parents views, religious or otherwise, are on the subject.

• Alternative Definitions

  • Brain stem death

    • DoH’s Code of Practice:

      • Three requirements under

        • 1. The coma is not due to reversible causes, such as drug overdose

        • 2. It must be demonstrated that the several components of the brain stem have been permanently destroyed

          • This significantly includes the respiratory centre

        • 3. It must be proved that the patient is unable to breathe spontaneously

      • The code suggests that two medical practitioners registered for more than five years and are specialists in the field should agree there is brain death, before pronouncing it.

• Brain stem death

  • Caudal lowest part of brain connecting spinal cord with rest of brain

  • DOH: on diagnosis of brain stem death

    • Irreversible causes

    • Several component permanently destroyed

    • Unable to breathe spontaneously

    • 2 experts agree

  • Why this?

    • Shewmon: Loss of integrated whole – if you lose stem then body and brain no longer works together

    • Lizza: if anything entails one’s death, decapitation certainly does, despite whatever artificial support might be given to sustain one’s decapitated body as an integrated organism

      • Thus if we are willing to accept decapitation as death, we should also be willing to accept physiological decapitation (total brain failure) as death

  • Objections

    • Miller and Truog:

      • Chicken might still run around when decapitated, but we know its dead really.

      • How about the pregnant dead?

        • Fallen into irreversible coma, but kept alive so can give birth

        • Does this make her just like a foetal container?

          • Doctors emphasised that she was keen to have the child and H wanted the child as well.

          • But if someone still able to produce a child but brain stem dead, doesn’t this mean they can some kind of function none-the-less?

    • Joffe:

      • A person in a permanently unconscious state (vegetative) is not considered dead in any society

        • Burial cremation or organ donation w/o anaesthetic in these patients has been unthinkable

        • This suggests that loss of cerebral function and consciousness is not just what we mean by the word death.

    • Glannon:

      • Brain is elevated to being the essential organ of the person, while person and body is made up of much more than this

      • 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.

    • Veatch:

      • Possible to conceive of a time when you can have a brain transplant – thus you would be classed as dead when patently you’re alive.

• The end of breathing

  • At one time, someone was dead once their heart had stopped pumping and their breathing ceased

    • However, medical advances have made this definition problematic – the stopping of the heart does not lead to an end of brain activity

    • Even if respiration has stopped, medical intervention can save someone from the “door of death”

  • Truog: but the layperson on the street would see the stopping of the heart as the market of death, since the heart is the symbol of life

    • So even if the notion of the beating heart as the key to life is not logically or philosophically justifiable, it is intuitively the essential mark of life

• The end of the organism

  • If the body is a working organism, with various functions, then death might come where the organism ceases to achieve those functions

    • These might include ventilation, circulation, nutrition etc.

    • Once these can no longer be performed, the body should be said to have died.

  • BUT this treats the body like machinery – it does not take account of what people regard as most important about their bodies – feelings, thoughts, emotions etc.

• Death of every cell

  • Purification would signal death

  • Probably would be considered quite unpleasant for most people

• Desoulment

  • I.e. Departure of the soul for some religious people or believers in a soul

    • However, even if we accept desoulment, it’s not very apparent to us as humans when this occurs

      • It cannot therefore readily provide a basis of a legal or medical test.

• Death as a process?

  • Death might not be a moment in time, but better seen as a process

    • Only rarely will there be a clear moment of death – e.g. blown apart in an explosion

    • But where death is “natural” there is no easy cut off point

  • Problems

    • Aries: Not very practical

      • Death in the hospital is no longer the occasion of a ritual ceremony, over which the dying person presides amidst his relatives and friends

      • It is not a technical phenomenon, obtained by a cessation of care – indeed, they may already have lost consciousness

        • Death being dissected means its not longer clear which point is the “real” death

          • no-one has the strength of patience to wait over a period of weeks for something which has lost part of its meaning

Could the law allow us to choose what we consider the definition of our death should be?

• The premise

  • Bagheri: We have different theological, spiritual, political and medical beliefs about this, so perhaps we should let each person decide what they would like their definition of death to be

  • Problem = needs to be a fallback position – not everyone has developed their own concept of when death occurs

    • Also, society might not accept some definitions – e.g. “I am dead once I develop dementia”

    • Herring: Perhaps there should be a range of options available for people to pick from the menu of death?

• How might we choose?

  • Might come from view of life

    • Is life conscious awareness?

    • Or when the organism ceases to function?

      • Problem is that both views are seen as equally valid interpretations – perhaps we die twice rather than once?

  • Might come from viewpoint

    • Brain stem death = cessation of consciousness, where dying person loses all appreciation of life

      • BUT to observers and carers, cessation of breathing might be when person has died to onlookers

    • However, the two are interlinked

      • Mason and Laurie: The brain, the heart and lungs form the cycle of life which can be broken at any point

        • There is no need to speak of two concepts of death – that is, cardio-respiratory death or brain death

          • It is simply that the different criteria and different tests can be used for identifying that the circle is broken

The Criminal Law and End of Life

Murder Requirements

• (1) D caused the death of the patient

  • Act of D caused the death

    • In a murder case, you must show that the doctor’s act, while not the sole cause of death, it was a substantial or operative cause.

      • It may be enough to say that the patient’s life was shortened only by a few seconds to not be operative

      • But normally, it doesn’t matter how much the life was shortened – days and weeks same as years.

  • Omissions of doctor cause death

    • Normally the criminal law does not impose liability for an omission. However, criminal prosecution can occasionally succeed:

      • i.e. where D owes a duty to the patient,

      • D fails to act in accordance with the duty,

      • and had D acted in accordance with the duty, P would not have died

    • Doctors nearly always owe a duty to patients, but whether they have fdiled it is a different matter

      • If a competent patient does not consent to treatment, a medic need not provide it, and it is unlawful to do so

      • And a doctor is not obliged to provide treatment to an incompetent patient where it is not in their best interests

      • Where a doctor must allocate limited resources (e.g. a kidney), then they are not liable if they reasonably do not offer some patients this resource

• (2) D intended to cause death or GBH

  • Direct intent – A person intends a result if it is his/her purpose to produce the result

  • Indirect/Oblique intent per Woolin, a Jury is entitled to find that D intended a result if

    • (a) the result was virtually certain to result from D’s act

    • And (b) D realised this

  • Ashworth:

    • Judges will often only give the first definition of intent to the jury where doctors have overdosed the drugs of a very sick patient

      • As the courts have striven to exculpate doctors for decisions taken in the medical context which otherwise would attract criminal liability

      • Rather than commit themselves to one view or another, judges seem to move between the two definitions to distinguish between those who have worthy and those who have unworthy motives

• (3) D cannot raise a defence

  • HA 1957 s.2: Diminished responsibility is a partial defence which downgrades murder to manslaughter.

    • (1) A Person (D) who kills...another is not to be convicted or murder if D was suffering from an abnormality of mental functioning which

      • ...