The common law first addressed and ultimately accepted the concept this criterion in Kansas, USA in 196710 where a man shot first his terminally ill wife and then himself. Conventional analysis based on heartbeat would have led to the judgment that she had survived him by a short time, but the court found that the five bullets to the her head would have led to immediate death. They simply could not reason otherwise, surmising that with her injuries death would automatically have been instantaneous.
Although the ruling in Kansas was based on a rather crude and unscientific assessment of the victims brain function, the very first attempt at describing what we now know to be brain stem death was proffered the next year in the report of the Ad Hoc Committee of the Harvard Medical School to Examine the Definition of Brain Death11 “irreversible coma” was defined by the report as a proposed new criterion for death.
They argued that this change was much needed firstly to allow the humane and legal withdrawal of subsistence, nutrition and resuscitation to the permanently and irreversible comatose and secondly to facilitate a less controversial organ retrieval process, to free medics from the unjust accusations that they were harvesting organs from the living. Crucially the report also laid the foundation for medics and professionals to biologically and physiologically assess the state of the patient (specifically excluding the hypothermic and drug toxined patient)
1. Unreceptivity and unresponsitivity–patient shows total unawareness to external stimuli and unresponsiveness to painful stimuli; 2. No movements or breathing–all spontaneous muscular movement, spontaneous respiration and response to stimuli are absent; 3. No reflexes–fixed, dilated pupils; lack of eye movement even when hit or turned, or ice water is placed in the ear; lack of response to noxious stimuli; unelicitable tendon reflexes.
This formula has been developed and modified over the years and had proved the foundation for determining brain stem death in many countries including the UK where in 1976 the newly founded Conference of Medical Royal Colleges an their faculties in the United Kingdom Report “Diagnosis of brain death”12. Described within the report were the procedures and clinical signs and evaluations required to be conducted by medics in order to determine with accuracy brain death with the main assertion being that brain death is essentially the permanent and irreversible complete loss of all function within the brainstem.
What the report crucially failed to promote was the equation between brain death and the death of the of the body, of the patient himself. Instead the report describes brain death as being “accepted as being sufficient to distinguish between those patients who retain the functional capacity to have a chance of even partial recovery from those in whom no such possibility exists. “13 This clearly states that the brain dead patient has absolutely no chance of recovery but fall short of stating that the patient with brain death is himself dead, just in an unrecoverable position.
This advancement in logic was not realized until the report was supplemented in 1979. 14 It’s title in itself (Diagnosis of Death) the diagnostic protocol of brain death remained exactly the same but the report clarifies the issue of bodily death noting that “brain death represents the stage at which a patient becomes truly dead. ” However this assertion was made without ethical, moral or scientific explanation. The reason for the medical association between the two was not clarified until the Physicians Report of 1995.
15 Together with encouraging the more technically correct terminology for patients in this condition as being brainstem dead, this document for the first time attempted to clearly define death an its association and correlation with the irreparable damage to the brain stem ‘It is suggested that irreversible loss of the capacity for consciousness combined with irreversible loss of the capacity to breathe’ should be regarded as the definition of death’.
This in recent years has appeared to have been given legal effect by our courts. 1617 3. Brains And Breathing – The Locus Of Life. Death comes to every living thing and in that manner it is a characteristic of life. The nature of human beings, of people, demand that we examine “the essential human characteristics”18 in order that we can easily determine when the body or person is without them and as a result dead.
Veitch discusses these “characteristics” and their evaluation, with the possibilities including the permanent stopping of the flow of bodily fluids, the soul’s leaving the body, the loss of ability of the body of the capacity for integration and “the irreversible loss of the capacity for consciousness”19. The attributes awarded to the capacity to maintain and attain consciousness and capacity include the rationality, the awareness of personal identity, the consciousness and the personal identity to maintain the capacity necessary for meaningful social interaction and so it is obviously the brain which is the “locus” of life.
However Lamb20 argues that the perception of death simply as the loss of social interaction and the capacity to behave in a social manner relates entirely to a subjective, cultural expectations of life and that using Veitche’s criteria of death can often be satisfied by the voluntary actions of the alive and the well, for example by the entering of a religious order, this does not mean that they are physically dead although they may be dead to the ordinary or expected interactions of their society and consequently these criteria are lacking in the determination of death.
Death is more. The brainstem consists of the mesencephalon, which largely controls vision, hearing, eye movement, and body movement and motor function, the pons important for the level of consciousness and for sleep and the caudal-most part of the brain stem the medulla oblongata which is responsible for maintaining vital body functions, such as breathing and heart rate. Brainstem death is usually indicated by a total lack of brainstem reflexes, ventilator dependency and coma.
As has been established brainstem death has been accepted as a legal criteria for death in the UK with the definite diagnoses of the condition being aided by the definitive neuroanatomy and neurophysiology displayed by the condition21. However the brainstem is one part of the brain, which like any other organ, is capable of sustaining damage in a variety of different areas.
If a patient has a healthy brain in the main, but has a severely damaged brainstem diagnosed as brainstem death, then the patient has satisfied the legal criteria for death. If however the patient has a healthy and functioning brainstem, but has suffered damage and perhaps irreversible damage to other areas of his brain, he has not legally fulfilled the criteria requirement for death and so is alive, medically, legally and morally22.
The requirement for clear legal and medical direction and differentiation between the various forms of brain death including whole brain and part brain and brain stem death first came to public attention in 1976 with the American case of Quinlan, where a respiratory support was lawfully removed from a patient in PVS, not on the basis that she was dead, but on the basis that her lawful State rights to privacy were being invaded 23 “Having concluded that there is a right of privacy that might permit termination of treatment in the circumstances of this case, we turn to consider the relationship of the exercise of that right to the criminal law.
We are aware that such termination of treatment would accelerate Karen’s death. “24 In this case the patient was not treated “as if she were already dead” but perversely as if she were very much alive with the same statutory right to privacy as any other living and breathing citizen of the State and a privacy that was worthy of protection in accordance with her parents wishes.
It cannot be denied that some like Rachel would question the validity of this view citing that the state of being biologically alive is itself not living, realizing life with all of its aspirations ambitions and disappointments is the real business of the living, simply powering a functioning respiratory system is not and so the PSV patient would be by Rachel’s accounts dead. 25I would not subscribe to this point of view; if we are not dead we are alive.
The higher cerebral functions of the brain include controlling our cognitive and sensory functions and is, like every other part of the body, dependent on the brain stem for adequate oxygen delivery. However the brain stem is independent of the higher-brain and so it is possible for a person to live dispossessed of their higher brain so long the fully functional brain stem survives.
In these instances medics and professionals alike are deprived of the comforting and well-established criteria that clearly define brain stem death, the only medical and legal certainty regarding patients in these circumstances is that they are alive. The main diagnostic difficulty with the persistent vegetative state is one of awareness. There exits a full spectrum of degrees of awareness ranging from fully aware and fully conscious to the vegetative state, with the low awareness state nestling between these two extremes.
Low awareness has never been medically or scientifically definitively defined. 26 It is impossible to determine a patients internal mental state using only external proof, and in an attempt to overcome this difficulty a umber of tests have been developed to attempt to more fully assess the patient considered to be PVS including glucose metabolism, EEG, CT scans, and positron-emission tomography (PET) – but all have ultimately proved to be inconclusive.
This uncertainty has translated to many patients having been incorrectly diagnosed with PVS, variously 11 out of 62 patients in a nursing home, and a further 18 of 49 hospital patients had been misdiagnosed according to Borthwick’s study. 27 This is perhaps the most striking contrast between PVS patients and those with either brain stem death and or cardio-pulmonary failure whose physical an biochemical responses to an established array of widely accepted medical tests betray an irreversible death of their body, with the physician certain and sure there is no doubt of the condition of these patients – dead.
With PVS it is quite different. The patient may be in a state of PVS, or may be profoundly handicapped or blind – one physician may be certain that he is viewing a patient in the PVS condition, with the associated prognosis and another examining exactly the same patient may in all good faith apply a differing criteria and diagnose an altogether differing disorder of the brain, a handicap or a sensual impairment.
Compounding the scope for uncertainty and error with this condition is the possibility, however slight, of recovery even for those diagnosed patients who genuinely inhabit this state. Again in contrast to brain stem death and cardio-pulmonary failure, where the essence of the diagnosis of death is the unrecoverability of the patient’s consciousness, even with patients in a genuine and agreed PVS state, recovery has been documented.
Even the long-term PVS patients have been documented as having made an adequate if not full recovery, progressing from PVS into the now recognized post vegetative state, regaining the ability to think and communicate whilst for those patients who have inhabited the PVS state for a shorter period of time full recovery to a pre PVS state has also been documented. Again in contrast to those unfortunates diagnosed as being brain stem dead of which none have been recorded as progressing to a post brain stem death condition or more importantly recovering to a pre brain stem death state28.