Neuroscience and legal challenges to brainstem criteria of death in the United Kingdom.

Abstract

McGee and Gardiner cited Re A (A Child) EWHC 443 (Fam) 2015 to support their assertion that the brainstem criteria of death in the code of practice for the diagnosis and confirmation of death is legally settled in the UK 1. They stated ‘the position in the UK is relatively well settled. Although there is no statutory definition of death, a number of courts have noted, with clear approval, the historic Royal Colleges’ Code of Practice…..as providing the accepted medical standard for declaring death in the UK….accepted standard is that death is: “the irreversible loss of the capacity for consciousness, combined with irreversible loss of the capacity to breathe… and therefore irreversible cessation of the integrative function of the brainstem”’ 1. However, careful analysis of the published judgement in Re A (A Child) uncovers serious medical, ethical, societal and legal problems with the code of practice for the diagnosis and confirmation of death that the UK judicial system has yet to confront and address appropriately 2. There is no UK statutory definition of death; therefore, the judicial system has relied exclusively on the historical neurological criteria of death articulated more than four decades ago and reaffirmed in 2008 2. Since then, neuroscience has disproved the fundamental assumptions underpinning the code of practice about the brainstem being the single mediator of both consciousness and integrative function in humans 2-5. Neuroscientific discoveries in the clinical diagnosis and treatment of severe brain injuries and the prognostic uncertainty about subsequent neurological disabilities have driven recent global upsurge in legal challenges to brain death determination 3-7. Is perpetuating an outdated medical determination of (brainstem) death harmful? Faulty determination of death in clinical practice can have serious consequences, including terminating treatment prematurely in potentially survivable neurologically injured patients, conflating the clinical prognosis of severe neurological disabilities with the diagnosis of death, increasing the distrust of families in healthcare professionals who are caring for their loved ones with severe brain injuries, harming organ donors by surgical procurement without administering general anaesthesia to abolish any residual nociception and/or awareness and heightening the legal concerns about the proximate causation of death in heart-beating donors. McGee and Gardiner implied that the UK brainstem criteria of death are immune from future legal challenges due to ‘the societal decision to accept the medical community's proposal that brain death is death’. Contemporary neuroscience, and its interpretation by scientific, medical and legal communities, will inevitably change medical and societal attitudes towards the code of practice for diagnosing and confirming death in the UK.