The last post discussed the first concern that the Nevada supreme court had regarding the American Academy of Neurology’s (AAN) guidelines on brain death–that they may not qualify as an “accepted medical standard” as required by the Uniform Determination of Death Act (UDDA). Now we turn to their second concern (starting on p. 17):
[W]hatever their acceptance generally, the briefing and testimony do not establish whether the AAN guidelines adequately measure the extraordinarily broad standard laid out by [Nevada’s brain death statute], which requires, before brain death can be declared under the UDDA, an “irreversible cessation” of “[a]ll functions of the person’s entire brain, including his or her brain stem . . . A cursory review of medical research raises concerns about brain death testing comporting with [Nevada law]. (Emphasis added)
The medical research they refer to invokes some of the arguments discussed here previously, in the context of Jahi McMath’s case. For example, the maintenance of normothermia (actually a prerequisite for declaring a person dead using neurological criteria) and euvolemia (i.e., the absence of diabetes insipidus) implies intact hypothalamic-neurohypophyseal function. Interpreting the UDDA literally, a patient with any such remaining brain function could not be determined to have died. Needless to say, if this strict interpretation were widely adopted, it would be highly unsettling to now long-established practices regarding individuals with total brain failure (itself a misnomer) and heart-beating organ transplantation. Neither the AAN guidelines, nor the Harvard criteria, nor any other protocol that I’m aware of would satisfy the requirements of the UDDA.
So how did we get here? In the abstract, I think that the UDDA was based on an older conceptual understanding of brain death. Subsequent philosophical scrutiny and empirical data discredited that understanding in favor of different conceptual underpinnings, but the law hasn’t changed to reflect that. And now the Nevada supreme court has just highlighted the discrepancy.
Regarding the older conceptual understanding, consider the 1968 Harvard report: “Irreversible coma has many causes, but we are concerned here only with those comatose individuals who have no discernible central nervous system activity.” (boldface added). Then, in their landmark 1981 publication titled Defining Death, the President’s Commission further elaborated (starting on p. 32) what is known as the “whole brain” concept of life and death. This is the proposition that the brain functions as an integrator for all bodily functions and that when the whole brain is destroyed, somatic integration is lost and the person is dead. This is true even if modern technologies (i.e. ventilators) mask the evidence of death by allowing (for what was then thought to be no more than a few days) continued heart beating and other physiological activities.
Interestingly, the President’s Commission seemed to be aware even then that their “whole brain” formulation may not be strictly true. In a footnote (#4), they quote Dr. James Bernat, et al.: “. . . When the respirator maintains the organism, it is questionable whether there is complete and irreversible loss of the functioning of the entire brain. But this is a question to be settled by empirical inquiry, not by philosophy.” (Emphasis added). And indeed, as discussed in a previous post, there came to light over time some good empirical reasons to believe that the entire brain does not cease to function in such cases and that the brain is not, in fact, necessary for integrated somatic functioning.
In their 2009 re-analysis of brain death, the President’s Council on Bioethics concurred with this conclusion and formulated instead what they felt to be a more compelling philosophical case–that an organism dies when it can no longer perform its “fundamental vital work”, which in the case of humans they identified with consciousness and breathing. However, this change in the philosophical underpinnings of the brain death concept was not accompanied by a corresponding change in the law, setting the stage for the Nevada supreme court’s recent decision.
It’s important to note that the Nevada supreme court did not rule that the AAN guidelines aren’t a medically accepted standard or that following them does not establish whether a person’s entire brain has lost functioning. Rather, they ruled that the lower court hadn’t established those facts and ordered it to consider those issues further. Meanwhile, Ms. Hailu has died according to cardiopulmonary criteria, which might moot the case. But even if Nevada doesn’t adjudicate this case further, their supreme court ruling could be cited in future cases of contested brain death determination. It seems that what is needed is an update to the UDDA that would incorporate the current philosophical understanding of the concept of brain death and establish a national standard, as suggested by Choi, et al., for determining that a person has died according to neurological criteria. And the specific procedure they recommend? The one described in the AAN guidelines!