The neurological determination of death: what does it really mean?

• Author: Joffe, Ari Robin

Abstract: The recent Canadian forum's recommendations regarding "neurological determination of death" claim to have determined a "Canadian definition, criteria, and minimum testing requirements for neurological determination of death." In this review the problems with this statement are discussed. The criterion of neurological determination of death does not fulfill the definition of death, because there is continued integration of the organism as a whole. The tests for neurological determination of death do not fulfill the criterion of neurological determination of death because they do not show the irreversible loss of all critical brain functions. The forum has provided no coherent argument for why neurological determination of death should be considered death. I suggest that one cannot invoke expert opinion to clarify a criterion of death, and tests for this criterion of death, without a clear concept of what death is. The forum has clarified tests for what they call "neurological determination of death," but this is not death itself; rather, it is a neurologically devastating stare. Whether this state of "neurological determination of death" is enough to justify the morality of harvesting organs prior to death is the real question. A potential solution to this question is discussed.

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A recent Canadian forum's recommendations regarding "neurological determination of death" (NDD) claim to have determined a "Canadian definition, criteria, and minimum testing requirements for NDD." (1) The approach taken by the Canadian forum to determine this state of NDD is similar to that of other countries, and therefore is instructive when considering the debate about brain death (BD) in general.

The Canadian forum clearly accepts that BD is "a medical and legal concept of death," that there is a generally accepted "Canadian definition of NDD," and that "after NDD the patient be declared dead." Brain death "is based on the concept of complete and irreversible loss of brain function ... [which] ... is equivalent to death of the indiv-idual...." (2) We are no longer to call this state BD; rather, it is called NDD, which leaves no room for confusion: it is death itself.

This article discusses controversies surrounding the concept of BD (and now NDD). The aim is to argue that BD and NDD have not been shown to be death of the patient.

Conflation of Criterion and Concept of Death

When defining death, it is generally agreed that there is a concept of what death is (the definition of death), a criterion that satisfies this concept (the standard to diagnose death), and finally tests to determine that the criterion is fulfilled. (3) In the United States it has been clearly stated that the concept of death is the loss of integrative unity of the organism as a whole. (4) In Canada, although the concept of death has not been clearly stated, the unitary phenomenon of death is said to occur "when an irreversible cessation of all that person's brain functions has occurred." (5) These statements imply that death occurs when the organism has lost integrative unity, and therefore is in the process of disintegration and not functioning as a whole. The forum suggested two ways to determine that irreversible cessation of brain functions, and hence loss of integration, has occurred. One is the irreversible loss of circulation, the traditional cardiopulmonary criterion (standard) for death. Second is the irreversible loss of all brain activity, including the brainstem, the whole-brain death criterion (standard) for death. (6)

But previous reports have shown that loss of whole brain function is not necessarily followed by loss of integrative unity of the organism. (7) This means that the criterion of BD, or NDD, does not satisfy the concept of death. It has been shown that BD patients can have prolonged survivals for months and years, (8) they continue to grow and assimilate nutrients, they fight infections, (9) and they can even support a growing fetus in-utero to viability. (10) Some have survived with only ventilation and tube feeding as their "external support." (11) Stating that the concept of death is "complete and irreversible loss of brain function" is not giving a concept or definition of death, it is simply restating the now known to be flawed criterion for BD. This is worth emphasis by repeating in another way: there is a long list of ongoing "integrative functions of the organism as a whole" that continue in the state of brain death, and this, together with (and explaining) the documented long "survival" times of brain dead patients, shows that there is not an "irreversible loss of integrative unity of the whole." This suggests there is not a central integrator; rather, the body might be integrated through "decentralized interaction, in which these parts achieve coordination by sending, receiving, and processing signals among themselves." (12) One can show that, in terms of somatic integrative unity, there is no difference between an individual with BD and one with a high spinal cord injury who is unquestionably alive. (13)

Of course, there is a large difference between patients with BD and those with a spinal cord injury. The difference is the capacity for consciousness. One might say that in a high spinal cord injury there is integrated functioning of the organism present artificially (with the ventilator), and therefore in BD it is actually the loss of the capacity for consciousness that is necessary and sufficient for death. However, for irreversible loss of the capacity for consciousness to be considered death, we would have to accept "person essentialism." (14) This means that we cannot exist at any time without being persons at that time because we are essentially persons, not human animals or human organisms. "Person" is usually meant to be an individual with the capacity for complex forms of consciousness (i.e. self-consciousness). (15)

There are problems with this loss of" personhood" being accepted as a concept of death. First, newborns and fetuses are not persons (having self-consciousness), and therefore none of us was ever a newborn; "this is hard to believe." (16) Second, this suggests that we must accept substance or property dualism (consciousness is different from the brain, and separable from the brain); philosophers have been reluctant to do this. (17) Even if dualism is accepted, we must be able to know that the "mind" or "soul" or "consciousness" has left the patient at the moment of BD; this is not verifiable. (18) Indeed, some would argue that a vital life principle, or "whole-making principle," or "soul," is necessarily present when there is an alive human organism (i.e. when there is integrative unity), even though our empirical ability to verify a content of consciousness is gone. (19) Third, it suggests that breathing and circulation have nothing to do with death, and irreversible loss of the capacity for consciousness despite ongoing spontaneous breathing and circulation would be enough to allow cremation or burial or autopsy in that state. (20) The higher-brain criterion fails if we cannot accept these problems. Indeed, it is clear from official statements regarding anencephalic infants that lack of cerebral function and hence consciousness is not sufficient to diagnose death. (21) Regarding the permanent vegetative state, with lack of cerebral function and any detectable content of consciousness, it has been noted that "despite their profound and tragic disability, all societies, cultures, and laws consider PVS patients as alive." (22)

The initial persuasiveness of the "concept" of NDD is lost when the arguments are set out and examined in detail. (23) That NDD be considered equivalent to death invokes the authority of expert opinion, without a clear coherent argument for why this state might be death. To be sure, the state diagnosed is neurologically devastating and has a dismal prognosis. Our narrative identity, psychological unity over time, indeed our continuing existence as "persons" may be over. What matters to some regarding their continued survival may be over. But this quality of life is different from death itself. "Defining death is a different job from deciding when it is best to remove the life-support systems." (24) BD and NDD do not fulfill the concept of death: irreversible loss of the integrative unity of the whole organism.

On Breathing and Spontaneity

Integrated functioning of the patient can be present with BD, and consciousness can be present with artificially maintained integration (as in spinal cord injury), as discussed above. Then what went wrong in defining BD? Consider a patient with irreversible loss of the function of the entire brain except the ability to breathe. According to NDD, this patient is alive, because the breathing shows that there is ongoing integrated functioning of the organism, and the master organ that is the integrator (the brain) is still functioning. But both these statements are false. Breathing on the apnea test can be just an attempt to respire, not even enough to sustain the organism; it is not integration, just an attempt at it. (25) Further, the brain now, even if it was a master organ before, "is no longer a master organ but merely a part of an organ that once was master ... [suggesting the implausible idea that] the history of an organ is relevant to deciding if a characteristic of life is present." (26) The mistake was "to fail to consider if spontaneous breathing (or heartbeat)--independent of it being a sign of brain activity--had significance as a characteristic of life." (27) This line of reasoning suggests that respiration (and heartbeat) is not merely a sign of brain activity; rather, respiration is an independent characteristic of life, and brain activity is merely a sign of this characteristic of life!

There is no clear explanation as to why the presence of respiration and circulation must be spontaneous (i.e...