Ethical and Legal Concerns With Nevada's Brain Death Amendments

A Framework for Revisiting Brain Death: Evaluating Awareness and Attitudes Toward the Neuroscientific and Ethical Debate Around the American Academy of Neurology Brain Death Criteria

BACKGROUND

There remains a lack of awareness around the American Academy of Neurology (AAN) procedural criteria for brain death and the surrounding controversies, leading to significant practice variability. This survey study assessed for existing knowledge and attitude among healthcare professionals regarding procedural criteria and potential change after an educational intervention.

METHODS

Healthcare professionals with increased exposure to brain injury at Mayo Clinic hospitals in Arizona and Florida were invited to complete an online survey consisting of 2 iterations of a 14-item questionnaire, taken before and after a 30-minute video educational intervention. The questionnaire gathered participants' opinion of (1) their knowledge of the AAN procedural criteria, (2) whether these criteria determine complete, irreversible cessation of brain function, and (3) on what concept of death they base the equivalence of brain death to biological death.

RESULTS

Of the 928 people contacted, a total of 118 and 62 participants completed the pre-intervention and post-intervention questionnaire, respectively. The results show broad, unchanging support for the concept of brain death (86.8%) and that current criteria constitute best practice. While 64.9% agree further that the loss of consciousness and spontaneous breathing is sufficient for death, contradictorily, 37.6% believe the loss of additional integrated bodily functions such as fighting infection is necessary for death. A plurality trusts these criteria to demonstrate loss of brain function that is irreversible (67.6%) and complete (43.6%) at baseline, but there is significantly less agreement on both at post-intervention.

CONCLUSION

Although there is consistent support that AAN procedural criteria are best for clinical practice, results show a tenuous belief that these criteria determine irreversible and complete loss of all brain function. Despite support for the concept of brain death first developed by the President's Council, participants demonstrate confusion over whether the loss of consciousness and spontaneous breath are truly sufficient for death.

Evaluation of Computed Tomography Angiography as an Ancillary Test to Reduce Confusion After Clinical Diagnosis of Brain Death

BACKGROUND

The diagnosis of brain death (BD) is mainly a clinical diagnosis. Ancillary tests may be used in confusing situations. Although computed tomography angiography (CTA) has high sensitivity and specificity, it can give false-positive results in cases with craniotomy.

OBJECTIVE

The aim of this study is to emphasize the importance of accurate and detailed clinical diagnosis and to reveal that there is organ loss as a result of prolonged supportive tests, especially in developing countries.

MATERIAL AND METHODS

This retrospective study included patients who were diagnosed with BD in the intensive care unit of Van Yüzüncü Yıl University, between September 2014 and August 2017 in Turkey. The study included 14 male and 8 female patients. Patients who did not show any spontaneous respiratory symptoms after the apnea test were diagnosed with clinical BD. Patients on neurodepressant medications who were hypothermic or hypoxic or had a severe endocrine or metabolic disorder were excluded from the study. CTA was used as an ancillary test in compliance with legal requirements. Age, sex, hospitalization days, day of clinical diagnosis of BD, first radiologic evaluation by CTA, clinical diagnosis, and radiologic evaluation were recorded for all patients.

RESULTS

Radiologic evaluation was not compatible with the clinical evaluation in 5 patients. Although 2 of these 5 patients had BD diagnosis clinically, blood flow could be expected during CTA because of cranial injury. Unlike in the literature, false positivity was found in 3 patients with hypoxic ischemic encephalopathy in the present study.

CONCLUSIONS

Proper management of limited resources and the facilitation of cadaver organ donation in developing countries are important and humanitarian global responsibilities. Revision of the country's legal regulations is important and is warranted in this regard.

Is informed consent required for the diagnosis of brain death regardless of consent for organ donation?

In the half-century history of clinical practice of diagnosing brain death, informed consent has seldom been considered until very recently. Like many other medical diagnoses and ordinary death pronouncements, it has been taken for granted for decades that brain death is diagnosed and death is declared without consideration of the patient's advance directives or family's wishes. This essay examines the pros and cons of using informed consent before the diagnosis of brain death from an ethical point of view. As shared decision-making in clinical practice became increasingly indispensable, respect for the patients' autonomous wishes regarding how to end their lives has a significant role in deciding how death is diagnosed. Brain death, as a fully technologically controlled death, may require a different ethical framework from the old one for traditional cardiac death. With emerging and proliferating options in end-of-life care for those who suffer from catastrophic brain injury, the traditional reasoning that 'death gives no choice, hence no consent' requires another examination. Patients facing imminent brain death now have options other than undergoing the diagnostic workup for brain death, such as donation after circulatory death and withdrawal of life-sustaining treatment with maximum comfort measures for death with dignity. Nevertheless, just as in the debate over opt-in versus opt-out organ donation policies, informed consent before the diagnosis of brain death faces fierce opposition from consequentialists urging the expansion of the donor pool. This essay examines these objections and provides constructive replies along with a proposal to accommodate this morally required consent.

Legal and Ethical Considerations for Requiring Consent for Apnea Testing in Brain Death Determination

The past decade has witnessed escalating legal and ethical challenges to the diagnosis of death by neurologic criteria (DNC). The legal tactic of demanding consent for the apnea test, if successful, can halt the DNC. However, US law is currently unsettled and inconsistent in this matter. Consent has been required in several trial cases in Montana and Kansas but not in Virginia and Nevada. In this paper, we analyze and evaluate the legal and ethical bases for requiring consent before apnea testing and defend such a requirement by appealing to ethical and legal principles of informed consent and battery and the right to refuse medical treatment. We conclude by considering and rebutting two major objections to a consent requirement for apnea testing: (1) a justice-based objection to allocate scarce resources fairly and (2) a social utility objection that halting the diagnosis of brain death will reduce the number of organ donors.

Public opinion and legislations related to brain death, circulatory death and organ donation

BACKGROUND

It is poorly understood how public perception of the difference between brain death and circulatory death may influence attitudes towards organ donation. We investigated the public opinion on brain death versus circulatory death and documented inconsistencies in the legislations of countries with different cultural and socioeconomic backgrounds.

METHODS

Using a crowdsourcing approach, we randomized 1072 participants from 30 countries to a case report of organ donation after brain death or to one following circulatory death. Further, we sampled guidelines from 24 countries and 5 continents.

RESULTS

Of all participants, 73% stated they would be willing to donate all organs, while 16% would want to donate some of their organs. To increase the rate of donations, 47% would agree with organ donation without family consent as the default. Exposure to "brain death" was not associated with a lesser likelihood of participants agreeing with organ donation (82.1%) compared to "circulatory death" (81.9%; relative risk 1.02, 95% CI 0.99 to 1.03; p = .11). However, participants exposed to "circulatory death" were more certain that the patient was truly dead (87.9% ± 19.7%) than participants exposed to "brain death" (84.1% ± 22.7%; Cohen's d 0.18; p = 0:004). Sampling of guidelines revealed large differences between countries regarding procedures required to confirm brain death and circulatory death, respectively.

CONCLUSIONS

Implementation of organ donation after circulatory death is unlikely to negatively influence the willingness to donate organs, but legislation is still brain death-based in most countries. The time seems ripe to increase the rate of circulatory death-based organ donation.

Neuroscience and Brain Death Controversies: The Elephant in the Room

The conception and the determination of brain death continue to raise scientific, legal, philosophical, and religious controversies. While both the President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research in 1981 and the President's Council on Bioethics in 2008 committed to a biological definition of death as the basis for the whole-brain death criteria, contemporary neuroscientific findings augment the concerns about the validity of this biological definition. Neuroscientific evidentiary findings, however, have not yet permeated discussions about brain death. These findings have critical relevance (scientifically, medically, legally, morally, and religiously) because they indicate that some core assumptions about brain death are demonstrably incorrect, while others lack sufficient evidential support. If behavioral unresponsiveness does not equate to unconsciousness, then the philosophical underpinning of the definition based on loss of capacity for consciousness as well as the criteria, and tests in brain death determination are incongruent with empirical evidence. Thus, the primary claim that brain death equates to biological death has then been de facto falsified. This conclusion has profound philosophical, religious, and legal implications that should compel respective authorities to (1) reassess the philosophical rationale for the definition of death, (2) initiate a critical reappraisal of the presumed alignment of brain death with the theological definition of death in Abrahamic faith traditions, and (3) enact new legislation ratifying religious exemption to death determination by neurologic criteria.