Experts propose revising the legal and medical standard on declaring someone dead based on respiratory function and likelihood of consciousness rather than cessation of brain function.
May 19, 2022 - By Patricia Hannon
In the 40 years since legislation was enacted to align the medical and legal definitions of death, the law has, for the most part, successfully guided every state in the country in navigating the question, said David Magnus, PhD, director of the Stanford Center for Biomedical Ethics.
Still, like most laws, the Uniform Determination of Death Act has garnered its share of controversy and confusion, mostly over how to interpret its brain death criteria and its failure to outline accepted medical standards for clinicians to declare someone dead.
In a paper published in March in Neurology, Magnus joined a group of law, neurology and biomedical ethics experts in recommending that the model law be updated to, in part, focus on the ability to regain consciousness and be more precise about how that’s evaluated.
Magnus said that the act’s sparse and vague wording doesn’t provide enough guidance for reaching consensus on an issue that is too important to be left unsettled.
“There’s been a growing concern in recent years that there’s a lack of fit between the statutory language of the law that most states have adopted and the details of clinical practice,” said Magnus, the Thomas A. Raffin Professor of Medicine. “There have also been a growing number of legal cases where that discrepancy comes into play.”
Those concerns prompted the Uniform Law Commission — a nonprofit organization that provides states with nonpartisan legislation on issues where uniformity is essential — to assign a draft committee to recommend revisions to the law, which the commission will review this summer. The committee includes Magnus, Stanford postdoctoral clinical ethics fellow Adam Omelianchuk, PhD, and the other experts who wrote the March paper.
Magnus, whose research and commentary on medical ethics are widely published and cited, said the call for an update answers a longstanding desire among brain death experts with whom he regularly collaborates to find some consensus among people with disparate views on the issue.
“Even though we’ve had a lot of philosophical disagreements about brain death, we’ve also had a lot of overlapping agreement about what — at a practical level — a new law ought to look like,” Magnus said.
‘All functions of the entire brain’
As written, the act says, “An individual who has sustained either irreversible cessation of circulatory and respiratory functions or irreversible cessation of all functions of the entire brain, including the brain stem, is dead. A determination of death must be made in accordance with accepted medical standards.”
The clause that evokes the most consternation, Magnus said, is “all functions of the entire brain, including the brain stem.”
In some people whom medical experts agree will never regain consciousness or be able to breathe on their own, the hypothalamus — a part of the brain that regulates functions like balancing our bodily fluids — continues to stimulate the pituitary gland to release hormones that control those functions. Neurologists agree that this lingering release of hormones isn’t a clinical sign of life and, therefore, shouldn’t prevent a death declaration, Omelianchuk said.
But because that isn’t spelled out in current law, he said, there is “a kind of gray zone” about which clinicians, the public and the legal community have demanded clarity.
In the paper, of which Magnus is the senior author, the group argued that the law should emphasize neuro-respiratory criteria in wording that declares a person dead if they suffer “brain injury leading to permanent loss of the capacity for consciousness, the ability to breathe spontaneously, and brainstem reflexes.”
This change, they noted, would not only prioritize neurological and anatomical considerations for determining death — without homing in on “all functions of the brain” being lost — but would also codify the neuro-respiratory criteria that are commonly used in U.S. clinics and hospitals.
“If you look at the actual examinations for determining brain death, clinicians really do two things. They are making sure the patient has lost the functions of the cerebral cortex — that is, consciousness has been lost,” Magnus said. “And they make sure the brain stem has lost functioning, including the ability to spontaneously breathe.”
Omelianchuk, the paper’s lead author, emphasized the importance of amending the law to spell out “the functions that are being tested in the clinical exam that matter, that are critical.”
“Those are the things we should be looking at, rather than some global concept of the functioning of the brain,” he said. “It gets into kind of what the brain is for.”
Additional concerns at death
Beyond clarifying the act’s language, Magnus said, the committee is also weighing other “potential areas of controversy that it would be nice have sorted out, which are currently left silent” in the law.
Such areas include how the lack of clarity affects organ procurement, donation and transplantation programs; decisions about hospital protocol if a family objects to a death examination being performed on their loved one; or ventilator removal after a death declaration. What obligation do hospitals have to keep someone who has been declared dead on life support indefinitely?
“These are all issues that remain contentious. They come up with greater and greater frequency at different hospitals, and they’re increasing in frequency in the courts,” Magnus said. “So it would be good, if it’s possible, for the Uniform Law Commission to try and put some of those issues to bed.”
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