Consent for Conducting Evaluations to Determine Death by Neurologic Criteria: a Legally Permissible and Ethically Required Approach to Addressing Current Controversies

Abstract

Ethical and legal questions persist in the bioethics and clinical communities surrounding the determination of death by neurologic criteria (DNC). Among challenges to the determination of DNC are questions about the physician’s role in the process. Once the exam is performed, if the patient meets criteria, the patient-physician relationship terminates. Whether informed consent is required to perform the exam, however, is a subject of ongoing controversy. Recent court cases also consider whether informed consent should occur prior to the determination of DNC. Those who argue against consent suggest that physicians have an obligation to determine death and the examination for DNC is required to make this determination. Those who support obtaining informed consent prior to the examination argue that informed consent is required prior to any examination, treatment, or test, following principles of biomedical ethics. This paper reflects on the existing debate about whether consent is necessary, ultimately concluding that is legally permissible and ethically required.