LEGAL AND ETHICAL ISSUES ASSOCIATED WITH BRAIN DEATH
Categories: Medical UniformPeople seem occupied with the war in Iraq on a daily basis. While this threat is real, especially to those living in the immediate surrounding region, a greater, and far more “realistic” threat remains hidden behind closed doors. While people are killed in the blink of an eye during battle, the drawn out debate over the status of “brain death” appears to have long-term effects on the lives of human beings. The far-reaching discussion around the end of life and the moment thereof has brought to light great uneasiness.
The difficult issue may be tackled from a variety of perspectives, each presenting a case for or against the use of the phrase “brain death” when defining the end of human life. This article focuses on the legal and ethical concerns. Specifically, by pointing to numerous problematic issues surrounding brain death, it calls for caution when using a cortical definition of death. The medical declaration of brain death seems to overturn otherwise tested and needed medical measures and precautions, especially those of advanced medical directives and informed consent, and ethical considerations regarding autonomy and personhood.
Inevitably, one interested in the medical definition of death has to encounter the limitations on the definition that have been established by the law. Physicians may have personal beliefs about the constituent elements of death, but the law limits the implementation of these personal opinions. Oftentimes, the law rightfully sets limits for the medical field; overzealous physicians, in their effort to help others, as well as patients in vulnerable circumstances, need a protective mechanism that will help avoid further complications and injury. Baumgartner clearly understands the crucial role of the law in the medical field when he states, “What physicians need is a clear legal framework to be able to deal with difficult and often extremely conflicting clinical decisions consistently”1.
In the definition of brain death, the law throughout the world has come up short. Surely, the law has established certain criteria for the determination of brain death as written in the Uniform Declaration of Death Act, but in essence, it has allowed physicians the freedom to interpret and implement the law in ways they personally deem acceptable2. The problem with testing for brain death may also stem from the fact that most states in America “.. .require no special qualifications or training, beyond a general medical license for the individual performing brain death examinations”2. If physicians do not obtain special training that thoroughly explains the legal criteria for brain death, the methods available for its testing, and the social and ethical dilemmas involved, then a physician may use his/her preconceived understanding of brain death and perhaps wrongfully diagnose death.
Additionally, one can see evidence of laxity in American law in the fact that most states do not specify medical tests necessary for confirming brain death. Many physicians realize that the nature of the law established to direct medical practice, specifically dealing with brain death, forces physicians to seek answers to their legal dilemmas beyond the American legal system. Physicians in the United States have consequently begun to refer to literature from around the world, and have made the mistake of implementing many of the legal practices of foreign countries within America. Because of this international conversation, “…the practice of many physicians declaring brain death in the United States may have changed from the Uniform Determination of Death Act of the 1980s, although medical and legal definitions of brain death in the United States have not changed”3.
Advanced Directives
A possible answer to the entire brain death issue includes advanced medical directives (AMDs). As Finnerty states, “An advance directive is an individual’s legal way to document wishes for medical care in advance of loss of capacity from illness or injury”4. Although advance directives protect an individual’s right to make personal decisions about the care that s/he desires, especially in the event when one loses the capacity for conscious decision-making, they do not have the same function in cases of brain death. If medicine believes that a brain dead person ceases to exist, then that person-already viewed as deceased-in effect loses all rights that s/he previously possesses.
Advanced directives do offer insight into whether or not a person wants to donate his/her organs, and it may even prohibit the use of life support. In the later case, brain death does not become an issue because the person will eventually die from cardiac and pulmonary failure. Although advanced directives may prevent the initiation of life-support, physicians and family members run into problems when the person requests to remain on life-support regardless of his/her medical condition. In cases where people find themselves in a vegetative state; i.e., where the person shows signs of cortical activity, physicians and the law cannot ignore such a request. On the other hand, one wonders if a brain dead person’s wish has the same legal and medical stance. If one supports Beresford’s statement that, “Brain death is synonymous with death of the person and has legal significance,”5 then a conflict arises between personal rights and the medical definition of death6. One can therefore conclude that although advanced directives provide some legal and medical insight in brain death cases, they have little to offer once the person has died.