Death Determination by Neurologic Criteria : Areas of Consensus and Controversy

This book presents principal controversies over the determination of death by neurologic criteria (“brain death”). The editors and authors are exceedingly well-versed in this subject and are on the forefront of the current debates. The content is divided in the following disciplinary: philosophical (conceptual), medical, scientific, legal, religious, and ethical/social. Many of the topics feature pro-con debates, allowing readers to consider the merits of the arguments and decide their own position. The work is targeted to clinicians and nurses who treat critically ill and dying patients, organ donation personnel, ethicists and philosophers who write on end-of-life issues, and lawyers and legislative/public policy professionals who draft laws on death determination. It identifies and debates the essential controversies currently raging in academic and public policy circles over the medical adequacy, scientific validity, and conceptual coherence of death determination by neurologic criteria. Whether a professional or a student, the reader will be given a comprehensive course in the most pressing controversies and areas of consensus in the determination of death by neurologic criteria. Contents Historical Introduction References Part I: Conceptual Issues Arguments Supporting Neurologic Criteria to Determine Death 1 Medical Standards of Death Determination 2 Conceptual Analyses of Death 3 The Definition of Death 4 The Criterion of Death 5 The Tests of Death 6 The Criterion–Test Mismatch and the Brain-as-a-Whole Criterion 7 Society’s Role in Death Determination 8 Summary References Arguments Rejecting Neurologic Criteria to Determine Death 1 Introduction 2 Non-ontological Concepts 2.1 Semantic Fuzziness: Death as a Cluster Kind 2.2 Physical Fuzziness: Death as a Process 2.2.1 Criteria 3 Ontological Concepts 3.1 Psychological Concept 3.1.1 Critique 3.1.2 Criterion 3.2 Biological Concept 3.2.1 Critique 3.2.2 Criterion 4 Thought Experiments 5 Some Key Distinctions 5.1 Sufficiency vs. Necessity 5.2 Structure vs. Function 5.3 Irreversible vs. Permanent 6 Conclusions References Arguments Supporting the Whole-Brain Criterion 1 A Definition of Life 2 Emergent Properties as an Essential Component of Life 3 Homeostasis Is Not Enough 4 Replacing Systemic Integration Does Not Preclude the Importance of the Brain 5 The Brainstem Criterion and Why It Falls Short 6 The Higher-Brain Criterion and Why It Falls Short 7 Ensuring Certainty Compels the Whole-Brain Criterion 8 Conclusions References Arguments Supporting the Brainstem Criterion 1 The Legacy of Christopher Pallis 1.1 The Determination of Death is a Clinical Diagnosis 1.2 Clinical Diagnoses Have Criteria 1.3 Death Is the Loss of Biological Function in the Brain 1.4 Some Functions in the Brain Count More Than Others 2 The Coherence that Comes When One Accepts the Brainstem Criterion 3 Legal Defense 4 The Unfinished Journey to Coherence 5 Response to Criticism 6 Conclusion References What Provisions Belong in a Statute on the Determination of Death by Neurologic Criteria? 1 Who Should Set the Standards for Determining Death? 1.1 The Problems with Waiting for Judges to Change the Law 1.2 Problems and Success with Legislative Change 2 What Objectives Should a Statute Seek? 2.1 The Specificity of Public Policy 2.2 Avoid the Term “Standards” When “Criteria” Are Intended 2.3 The Phenomenon of Interest 3 What Principles Should Guide the Wording? 3.1 Uniformity as to All Persons and for All Purposes 3.2 Death’s Relationship to Other Bases for Action 3.3 Confine the Delegation of Law-Making Authority 4 Four Important Terms to Include in a Statute 4.1 “An Individual” and “Is Dead” 4.2 “Irreversible Cessation” 4.3 “Functions” 5 Provisions to Leave Out of the Statute 5.1 A “Definition of Death” 5.2 Scope of Application 5.3 Treatment Termination 6 Conclusion References Preserved Hypothalamic Function Is Not Consistent with the Whole-Brain Criterion for Death 1 A Note on Terminology 2 Brain Death Pathophysiology and Diagnostic Tests 3 Hypothalamic Functions in Patients Declared Dead by Neurologic Criteria 4 Demoting the Hypothalamus in the Brain Death Literature: Efforts to Deny the Relevance of Preserved Hypothalamic Function 5 Concluding Thoughts References Preserved Hypothalamic Function Does Not Preclude Determination of Death by Neurologic Criteria 1 Hypothalamic–Pituitary Function 2 Hypothalamic–Pituitary Function in Death by Neurologic Criteria 3 Death by Neurologic Criteria and Residual Hypothalamic–Pituitary Function 4 The Whole-Brain Criterion vs. the Brainstem Criterion 5 Conclusion References Does Death Determination by Neurologic Criteria Require Irreversible or Permanent Cessation of Brain Functions? 1 Arguments from Language: The Meaning of Irreversible 1.1 Can “Irreversible” Legitimately Be Given a Normative Construal? 2 Arguments from ECMO and the Reality of Permanence 3 Irreversibility and Death by Neurologic Criteria 4 Conclusion: The Source of Disagreement: Two Rival Conceptions of Death References Part II: Medical Issues Intra/International Variability in the Determination of Death by Neurologic Criteria 1 The Concept of Death by Neurologic Criteria 2 Laws on Death by Neurologic Criteria in the United States 3 Variability in Institutional Standards on Determination of Death by Neurologic Criteria in Adults in the United States 4 Variability in Institutional Standards on Determination of Death by Neurologic Criteria in Children in the United States 5 Variability in National Standards on Determination of Death by Neurologic Criteria around the World 6 Qualifications for the Examiner 7 Communication, Documentation, Discontinuation of Organ Support and Organ Donation 8 Rectifying Variability 8.1 Intranational (the United States) 8.2 International 9 Conclusions References Overcoming Challenges in the Determination of Death by Neurologic Criteria in Pediatric Patients 1 Introduction 2 Epidemiology of Death by Neurologic Criteria in Pediatrics 3 Challenges in Determining Death by Neurologic Criteria in Children 3.1 Qualifications of Physicians to Evaluate Children for Death by Neurologic Criteria 3.2 Challenges to Performing the Neurologic Examination for Determination of Death by Neurologic Criteria in Children 3.3 Challenges to Conducting an Apnea Test for Determination of Death by Neurologic Criteria in Children 3.4 Ancillary Testing in Children 4 Systems Issues in Pediatric Death by Neurologic Criteria Determination 4.1 Variability in Institutional Pediatric Standards on Determination of Death by Neurologic Criteria 4.2 Objections to Determination of Death by Neurologic Criteria 5 Conclusions References Arguments in Favor of Requiring the Absence of Brain Circulation to Determine Death by Neurologic Criteria 1 What Are the Accepted Medical Standards for Determining Death by Neurologic Criteria? 1.1 Do the Accepted Medical Standards for Determination of Death by Neurologic Criteria Assess all Functions of the Entire Brain? 1.2 Do the Accepted Medical Standards for Determination of Death by Neurologic Criteria Assess Irreversibility? 2 Argument 1: Only the Absence of Brain Circulation Can Ensure Loss of All Functions of the Entire Brain 3 Argument 2: Only the Absence of Brain Circulation Can Ensure Irreversible Loss of All Functions of the Entire Brain 4 Argument 3: Requiring the Absence of Cerebral Circulation Better Aligns Death by Neurologic Criteria with Death by Circulatory-Respiratory Criteria 5 Conclusions References Arguments Opposing the Requirement to Demonstrate Absence of Brain Circulation to Determine Death by Neurologic Criteria 1 Death by Neurologic Criteria Is the Permanent Loss of Brainstem Function 2 Brain Circulation Is Not an Ideal Surrogate for Brainstem Function 3 Brain Circulation Ancillary Tests Are of Variable or Unclear Diagnostic Accuracy 4 Conclusion References Reports of “Recovery” from Death by Neurologic Criteria 1 Some cases of “recovery” from death by neurologic criteria 1.1 Roberts et al. 2010 1.2 Webb et al. 2011 1.3 Latorre et al. 2020 1.4 Jahi McMath 2 Implications 2.1 Absence of Brain Circulation 2.2 Legal Status 3 Conclusion References Observation Time Prior to Determination of Death by Neurologic Criteria 1 Current Standards and Evidence for Timing of the Evaluation for Determination of Death by Neurologic Criteria After Structural Brain Injury 1.1 Current Standards 1.2 Evidence 1.3 Recommendation 2 Current Standards and Evidence for Timing of the Evaluation for Determination of Death by Neurologic Criteria After Hypoxic-Ischemic Brain Injury 2.1 Current Standards 2.2 Evidence 2.3 Recommendation 3 Advantages and Disadvantages of Using a Longer Observation Period Before Evaluation for Determination of Death by Neurologic Criteria 3.1 Opportunity to Address Diagnostic Uncertainty 3.2 Resolution of Confounders 3.3 Availability of Senior Specialized Clinicians 3.4 Communication and Education for Families 3.5 Respect for Patients and Their Families 3.6 Resource Utilization 3.7 Organ Donation 4 Conclusion References Temperature Considerations in the Determination of Death by Neurologic Criteria 1 Alterations in the Regulation of Body Temperature After Death by Neurologic Criteria 2 Relationship Between Temperature, Brain Metabolism, and Function 3 Clinical Implication of Temperature on Determination of Death by Neurologic Criteria 3.1 Direct Confounding of Determination of Death by Neurologic Criteria by Hypothermia 3.2 Impact of Temperature on Drug Pharmacokinetics 4 Determination of Death by Neurologic Criteria After Therapeutic Hypothermia or Targeted Temperature Management 5 Existing Guidance on Temperature Considerations for the Clinical Evaluation of Death by Neurologic Criteria 6 Ancillary Testing and Core Body Temperature 7 Our Recommendations on Considerations Pertaining to Temperature Management in the Determination of Death by Neurologic Criteria 8 Conclusion References How Many Evaluations Are Required to Determine Death by Neurologic Criteria? 1 The History Behind the Number of Evaluations and the Observation Period Before an Evaluation 2 Considerations That Could Impact the Number of Evaluations Performed 2.1 Evaluation for Irreversibility 2.2 Prevention of False-Positive Determinations of Death by Neurologic Criteria 3 Advantages and Disadvantages of Performing Multiple Evaluations 4 Variability in the Number of Clinical Evaluations 5 Guidance by the World Brain Death Project on the Number of Evaluations Required to Determine Death by Neurologic Criteria 6 Conclusion References Part III: Scientific Issues Research Questions to Inform the Determination of Death by Neurologic Criteria 1 Feasibility of Research on the Determination of Death During and After the Determination 2 Research Questions/Topics About the Clinical Evaluation for Death by Neurologic Criteria 2.1 Demographics 2.2 Clinical Assessment 2.3 Apnea Testing 2.4 Number of Evaluations 2.5 Neuroendocrine Secretion 2.6 Special Considerations Related to Hypoxic-Ischemic Brain Injury 2.7 Special Considerations Related to Infratentorial Lesions 2.8 Special Considerations in the Pediatric Population 2.9 Surgical Interventions to Decrease Intracranial Pressure: Ventricular Drainage and Decompressive Craniectomy 2.10 Recovery of Brain Function After Death by Neurologic Criteria 3 Research Questions About Neuroimaging and Ancillary Tests for Determination of Death by Neurologic Criteria 3.1 Neuroimaging 3.2 Ancillary Testing 3.3 Types of Ancillary Tests 4 Research Questions About the Aftermath of Determination of Death by Neurologic Criteria 5 Research Questions About Worldwide Variance in Determination of Death by Neurologic Criteria 6 Conclusion References Research on the Newly Deceased Following Declaration of Death by Neurologic Criteria 1 Determination of Death by Neurologic Criteria by Accepted Standards 2 Institutional Research Oversight Body 3 Authorization of Deceased Donation for Research Purposes 4 Appropriate Identification of Research Candidates 5 Confidentiality 6 Concluding Considerations in Study Design References Part IV: Legal Issues U.S. State Laws on the Determination of Death by Neurologic Criteria 1 Historical U.S. State Laws on the Determination of Death 2 Contemporary State Laws 3 Neurologic Criteria Across the World 4 Recent Legal Controversies in the United States 5 Conclusion References Is Consent Required for Clinicians to Make a Determination of Death by Neurologic Criteria? 1 The Uniform Determination of Death Act Does Not Require Consent for Determination of Death by Neurologic Criteria 1.1 Accepted Medical Standards: Professional Society Statements 1.2 Accepted Medical Standards: Custom and Practice 1.3 Accepted Medical Standards: Concession by Consent Proponents 1.4 Conclusion 2 No Other Statute or Regulation Requires Consent 3 Accommodation Laws Do Not Require Consent 3.1 Post-Determination, Post-Declaration Accommodation 3.2 Post-determination, Pre-declaration Accommodation 3.3 Pre-determination, Pre-declaration Accommodation 4 Courts Confirm That Consent Is Not Required 5 Arguments for Requiring Consent 5.1 Unreliability and Self-Fulfilling Prophecy 5.2 Significant Risks from Apnea Testing 5.3 Religion and Conscience-Based Objections 5.4 Respect for Persons 5.5 Race and Trust 6 Arguments Against Requiring Consent 6.1 Prima Facie Duty Not Even Triggered 6.2 Need to Answer Fundamental Questions 6.3 Integrity of the Medical Profession 6.4 Stewardship of Scarce Resources 6.5 Symmetry and Harmony with Death by Circulatory-Respiratory Criteria 6.6 Symmetry and Harmony with Accommodations 6.7 Rebuttal Points 6.8 Weighing the Pro/Con Arguments 7 Notification and Reasonable Accommodation 7.1 Family Notification 7.2 Reasonable Accommodation in Delaying Testing 7.3 Symmetry with Other Accommodations 7.4 Other Reasonable Accommodations 8 Conclusion References Legal Responses to Religious and Other Objections to Declaration of Death by Neurologic Criteria 1 The Underlying Motivation for Legal Challenges to the Determination of Death by Neurologic Criteria 2 The Types of Legal Objections to Death by Neurologic Criteria 3 Legislative Responses to Religious and Cultural Objections to Death by Neurologic Criteria 3.1 Japan 3.2 New Jersey, United States 3.3 Israel 3.4 Illinois, United States 3.5 California, United States 3.6 New York, United States 3.7 Trinidad and Tobago 4 A Legal Case Study in Religious Freedom and Death by Neurologic Criteria: McKitty v Hayani 5 Conclusion References Is Death by Neurologic Criteria a Legal Fiction or Status? 1 Background 2 Legal Fictions and Statuses 3 Applying Legal Fictions and Statuses to the Neurologic Determination of Death 4 Conclusion: Guidance for Proposals to Revise the UDDA as Fictions or Statuses References Legal Considerations on the Declaration of Death by Neurologic Criteria in the Pregnant Patient 1 Marlise Muñoz and the Texas Advance Directives Act 2 An Attempt to Amend the Texas Advance Directives Act 3 Advance Directives During Pregnancy in Other States 4 Pregnancy, Bodily Autonomy, and Dignity 5 Declaring Death by Neurologic Criteria During Pregnancy 6 Conclusion References Part V: Religious Issues Christian Perspectives on Death by Neurologic Criteria 1 The Christian Stake in the Determination of Death Controversy 2 Contemporary Controversies in Roman Catholicism 3 Contemporary Protestant Perspectives 4 Orthodox Perspectives 5 Conclusion References Islamic Perspectives on Death by Neurologic Criteria 1 Muslim Disquiet with Brain Death 1.1 Muslim Healthcare Providers 1.2 Islamic Jurists 1.3 Muslim Patients and Their Surrogate Decision-Makers 2 Islamic Juridical Views on Brain Death 2.1 The “Traditional” Camp: Brain Death Does Not Represent Human Death 2.2 The Brain Death Is Human Death Camp 2.3 The Brain Death Is Unstable Life Camp 3 A Critical Appraisal of Juridical Contentions Over Brain Death 3.1 How Does the Metaphysical Nature of Death Relate to the Physical Determination of It? 3.2 Which Brain Functions, When Lost, Signal Human Death? 3.3 What Is the Criterion for Irreversibility to Declare Brain Death? 3.4 What Level of Certainty Is Required to Determine Human Death? 4 Death in the Muslim Mind 5 Conclusion References Jewish Perspectives on Death by Neurologic Criteria 1 Historical Perspective 2 The Evolution of Jewish Law 2.1 History 2.2 The Process of Jewish Law 3 Nature of the Brain Death Debate in Jewish Law 4 Talmudic Sources 4.1 Opposing Brain Death as Death 4.2 Accepting Brain Death as Death 5 Second Talmudic Source 6 Conclusion References Part VI: Ethical and Social Issues Public Views on Death by Neurologic Criteria 1 Medical and Legal Acceptance of Death by Neurologic Criteria Around the World 2 Sources of Public Knowledge About Death by Neurologic Criteria 3 How Much Does the Public Know About Death by Neurologic Criteria? 4 The Difference Between Knowledge and Acceptance of Death by Neurologic Criteria 5 What Does the Public Think About Death by Neurologic Criteria? 6 Impact of the Public Perception of Death by Neurologic Criteria on Organ Donation and Transplantation 7 The Role of the Healthcare Profession in Educating the Public About Death by Neurologic Criteria 8 Conclusion References Cultural Considerations in the Declaration of Death by Neurologic Criteria in Asia 1 Introduction 2 Example: The Progression of Thought Regarding Brain Death in Japan 3 Brain Death-Associated Factors, Organ Donation, and Statistics in Asia 3.1 Eastern Asia Traumatic Brain Injury Statistics and Laws on Brain Death or Organ Donation 3.2 Southeastern Asia TBI Statistics and Laws on Brain Death or Organ Donation 4 Rapid Technological Advancement in Asia Vs. Slow Cultural Change 5 Culture, Religion, and Law 5.1 Patriarchy and Cultural Change in Asia (a.k.a. Don’t Rock the Boat!) 5.2 Westernization of Youth and Social Media 5.3 Confrontational and Context Communications in Cultural Change 5.4 Summary References Cultural Considerations in the Declaration of Death by Neurologic Criteria in Africa 1 Declaration of Death by Neurologic Criteria in Africa 2 Areas of Controversy 2.1 Death as Ceasing to Be 2.2 Speaking of Death 2.3 Culture, Religion, and the Dying 3 Solutions for the Future: Education, the Law, or Both? 3.1 The Role of Education 3.2 Policy Makers and the Law 4 Conclusion References The Argument for Personal Choice in Determining Death 1 The Fourfold Scheme of Defining Death 2 The Uniform Determination of Death Act 2.1 Controversies with the UDDA: Is Determination of Death by Neurologic Criteria Using the AAN Testing Guidelines Consistent with the Whole-Brain Standard? 2.2 Controversies with the UDDA: Higher Brain 2.3 Controversies with the UDDA: Is It Necessary to Accept Both Standards as Valid Means to Determine Death? 3 Implementation 3.1 Consent for Testing 4 Objections 4.1 Policy Chaos 4.2 Consequences for Scarce Resources 4.3 Circulatory Opt-Out 5 Conclusions References The Distinction Between Determination of Death by Neurologic Criteria and Declaration of Death 1 Semantics or a Necessary Distinction Between Determination and Declaration? 2 “Reasonable Accommodation” and the Determination-Declaration Construct 3 Organ Support After Death and Postmortem Pregnancy 4 Is the Distinction Between Determination of Death by Neurologic Criteria and Declaration of Death Useful? References Why Families Object to Declaration of Death by Neurologic Criteria 1 Cases Highlighting Objections to Declaration of Death by Neurologic Criteria 2 Why Do Families Object to the Determination and Declaration of Death by Neurologic Criteria? 2.1 Belief that Only Cessation of Circulatory-Respiratory Function Can Signify Death 2.2 Religious Objections to the Idea of Death by Neurologic Criteria 2.3 International Differences in Belief in the Concept of Death by Neurologic Criteria 2.4 Not Wanting to Give Up 2.5 The Influences of Trauma, Distrust, and Bias 3 Responding to Objections 4 Conclusion References Arguments Favoring Continuation of “Organ Support” when Families Object to Declaration of Death by Neurologic Criteria 1 Death by Neurologic Criteria as a Metaphysical Stance 2 Synecdoche as an Ethical Stance: Is It Just “Organ Support”? 3 Distrust 4 Justice and Equal Treatment 5 The Case for Reasonable Objections and Choice Concerning Continuation of Treatment References Arguments Opposing Continuation of Organ Support When Families Object to Declaration of Death by Neurological Criteria 1 Preliminaries 2 There Is No Party to Which a Justifiable Medical Benefit Accrues 3 The Preservation Approach Undermines the Professional Integrity of the Clinical Teams Involved and Is Unfair to the Wider Community 4 The Preservation Approach Gives the Family False Hope for Recovery and Prolongs Their Grieving Process 5 The Preservation Approach Produces Societal Confusion by Permitting a Negotiated and Inconsistent Standard of Death 6 Conclusion References Index