||The examples and perspective in this article deal primarily with the United States and do not represent a worldwide view of the subject. (December 2010)|
- This article is about the legal status of a moribund or brain dead patient under medical examination. For declarations of death on a missing person see Declared death in absentia. The article about usurpation-through-declaration-of-death is Association of the Dead.
Legal death is a legal pronouncement by a qualified person that further medical care is not appropriate and that a patient should be considered dead under the law. The specific criteria used to pronounce legal death are variable and often depend on certain circumstances in order to pronounce a person legally dead. Controversy is often encountered due to the conflicts between moral and ethical values.
The increasing demand for organs for organ transplantation is a major focus of concern due to the increasing technological advances in medical equipment. These advances are causing further questions on the actual definition of death. With so many questions revolving around the issues of legal death, declaring a person legally dead in many cases becomes far more than just a medical concern as it involves ethical concerns as well.
Removing organs for organ transplants from a body after death is permitted assuming that the statutory requirements are complied with. However, with technology constantly increasing in its abilities, the question of what can be done to preserve organs is an issue that is highly controversial. Organs are best preserved when left inside of a living body or beating heart cadaver. Consequently, this raises many issues when dealing with patients who are physically incapable of keeping themselves alive. In many cases, medical professionals try to keep a person "alive" for the sole purpose of preserving these organs. By doing this, future removal of these organs will be more effective in organ transplant patients. However, this is seen in many ways as violating the rights of the organ donor. Generally, if a patient is unable to give permission for medical treatment, they are only allowed to receive treatment if it is found that the treatment would be in their best interest. This raises the question of whether keeping a person alive to remove their organs is ethically correct. Another problem encountered in the topic of organ transplantation is the question of, "When is it permissible to remove an organ from the body?"
In the article Education and Debate written by Robert Francis, the ethical debate concerning the elective ventilation of an unconscious patient is discussed and by many standards is found to be unlawful. Francis states, "There is a distinction between the rights in respect of a dead body and a living patient." According to the law, it is permitted to remove organs from a body after death assuming that the statutory requirements are complied with. But the ethical concern comes into question whenever a patient is unable to give consent to receive medical treatment. At what point can medical treatment be withheld from a patient without their consent?
In the case of a patient who is unable to give permission for medical treatment, treatment can be given to the patient if it is in his or her best interests. This permission of medical treatment comes from the legal doctrine of necessity, which states that it is lawful to intervene in the affairs of another person without their consent, granted that the intervention is intended for that person’s benefit. In many cases, however, treatment is unable to cure the patient’s condition, and consequently, according to judicial suggestions, "a doctor has a duty to discontinue the artificial prolongation of life where this ceases to have any therapeutic point". According to this principle, elective ventilation of an unconscious dying patient is not justified because they are being medically treated, not by their consent or for their own benefit (as the principle states), but instead for the sole reason of preserving the organs for donation.
Paragraph 22, of the 1983 Code of Practice, makes it clear that in regard to continuing medical practice on the patient, "[Treatment] must be for the patient’s benefit." By keeping the patient alive it is not the patient who is benefiting, but rather the person receiving the organ donation. However, medical procedures can be given to an unconscious dying patient only with valid consent. In a case where a child under the age of 16 is found unconscious and dying, valid consent may be given by the parents of the child to authorize medical treatment. But, once again, this treatment may not be granted to the child if it is found that it is not in his or her best interests. In regards to medical procedures being rendered lawful to an unconscious adult, authority cannot be granted by relatives or any other person, but instead is left up to the principle of whether or not it is in their best interest to receive further medical treatment.
Overall, there are many issues to consider taking into account in the debate of ethical values clashing with modern science. Where some say let the patient die due to the inability to cure or help them, others plead to keep them living either in desperate hopes of improvement, or in order to preserve their organs for future donation.
One of the scenarios in which legal death is usually pronounced is when a person is considered brain dead. Brain death is considered an irreversible coma. A patient is diagnosed as brain dead when there is no detectable brain activity. In the United States, brain death is legal in every state. Brain death is not the same as a vegetative state, but the two are often confused. A vegetative state is when a person can seem to be awake, have their eyes open, yet they are not aware of anything and their brains are not functioning. Many families will argue that their loved one moves, or is responding to them. It is common for younger patients to be able to live a very long time in a vegetative state, and if kept alive by artificial means, “these patients typically die of pneumonia, urinary tract infections, or sepsis related to skin breakdown.” Well known younger patients who were diagnosed as PVS are Terri Schiavo, Nancy Cruzan, and Karen Ann Quinlan. All three of these women were in a vegetative state and never regained consciousness. In each case, loved ones of the patients went to court in order for their family member to be allowed to die without being kept alive by artificial nutrition. These cases are related to the controversial right to die.
With time the definition of legal death has been reexamined and altered as our technology advances. The definition of death used to include only cessation of heart and lungs but now after further development it has been altered so that it can include permanent and irreversible brain failure. By June 1987, 39 states had also adopted this law into action to include brain death. Changing the definition will always bring up new ethical concerns; especially when it involves organ transplants.
Cryonics is the practice of storing those beyond the reach of today's medicine at very low temperatures in the hope that future medicine is able to revive and cure them. Such revival is yet to be demonstrated, and as a result cryonics is not a recognised medical procedure and so can only take place after legal death in the United States. Cryonics advocates distinguish legal death from the state of information-theoretic death, the point at which the information in the brain that makes up personality and memory is destroyed by the process of death; the purpose of cryonics practice is to delay information-theoretic death until revival becomes possible.
Moral and ethical issues
|This section requires expansion. (March 2009)|
Death is a universal but incompletely understood phenomenon, with strong connections to religious, spiritual and ethical beliefs. There have been cases of people believed dead who (with or without assistance) later recovered, or whose body was capable of continued function. Accordingly the question of when a person is to be considered "dead" for legal or other purposes can be a lot more controversial and complex than it seems.
Well known ethical questions include determining the point where organ removal for donation can take place, when medical care should be withdrawn (or a person kept alive who appears unable to ever recover from coma), and when a person should be considered "dead" in the eyes of the law. In rare cases a patient has been declared legally dead who is later found to be alive. Misdiagnosis of death is also a possibility and has been recorded in medical discussions. In cases of babies born without a brain cortex (known as anencephaly and with a life expectancy of hours or days) a similar question arises regarding the point at which the healthy organs may be used to help other babies. Because of these uncertainties, legal process may be needed to determine case-by-case whether an individual is to be considered "dead".
Separate ethical arguments relate to the societal resources consumed in preserving bodily life for people who may never recover, to the occasions when the wishes of the patient (or their representatives or family) differ from legal or medical views, since in many contexts the wishes of an individual or their representatives are given weight in medical matters (for example the case of Jesse Koochin), and religious or spiritual beliefs.
As might be expected, a wide range of views exist. Religions, cultures, societies, and philosophers, may each differ on their views related to these questions. Some notable views include:
- Religion - Among world religions, Catholicism takes a markedly strong stance against directly intending to cause the death of any innocent human person, whether by direct provocation, such as by a lethal injection, or by withholding or withdrawing ordinary means of life support or treatment, such as a feeding tube. This need not include the withdrawing or withholding of extraordinary means of life support or treatment, such as CPR or a ventilator. This has led to legal and cultural controversy in such cases as Cruzan, Schiavo, and Quinlan.
- Francis, Robert. "An Ethical Debate: A Legal Comment." BMJ. 18 03 1995. 8 Mar 2008 <http://www.bmj.com/cgi/content/full/310/6981/718>.
- Fine, Robert. "From Quinlan to Schiavo: Medical, Ethical, and Legal Issues in Severe Brain Injury." Baylor University Medical Center Proceedings (2005): 303-310.
- Sullivan, Ronald. "FAILURE OF BRAIN IS LEGAL 'DEATH,' NEW YORK SAYS ." The New York Times. 19 Jun 1987. 4 Mar 2008 <http://query.nytimes.com/gst/fullpage.html?res=9B0DEED91E3CF93AA25755C0A961948260>.
- Carpenter, Meredith. "Cryonics: Cheating Death or Just Freezing It?" Hybrid Vigor. 8 Mar 2008 <http://www.students.emory.edu/HYBRIDVIGOR/cryonics.htm>.
- Howards, Lawrence. "Ethics of Organ Donation." Milwaukee Journal Sentinel. 20 06 1999. 8 Mar 2008 <http://www2.jsonline.com/alive/column/jun99/howards62099.asp>.
- Chartrand, Sabra. "Legal Definition of Death Is Questioned in Florida Infant Case." New York Times. 29 03 1992. 8 Mar 2008 <http://query.nytimes.com/gst/fullpage.html?res=9E0CE0DE163AF93AA15750C0A964958260&sec=&spon=&pagewanted=1>.
- Appel, JM. Defining Death: When Physicians and Families Differ” Journal of Medical Ethics Fall 2005