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Irreversibly Comatose Individuals: “Alive” or “Dead”?

Published online by Cambridge University Press:  16 January 2009

P. D. G. Skegg
P. D. G. Skegg
Affiliation:
Fellow of New College, Oxford; C.U.F. Lecturer, University of Oxford.
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Extract

In recent years, there has been increasing support for the view that at least some irreversibly comatose individuals should be considered dead. In this article, an attempt is made to ascertain whether the English courts should at present regard any irreversibly comatose individual as dead for the purpose of any rule of law.

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Articles
Information
The Cambridge Law Journal , Volume 33 , Issue 1 , April 1974 , pp. 130 - 144
Copyright
Copyright © Cambridge Law Journal and Contributors 1974

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References

1 It will be noted that this definition excludes those cases where, after respiration and circulation have ceased, and death has been declared, the body is maintained as an “organ bank.” It is agreed on all sides that, in these cases, the patient is rightly regarded as dead.

2 There are a number of factors which affect the time for which cells can withstand the deprivation of oxygen. Important among them are the temperature of the body, and the degree of oxygenation at the time of suspension of circulation.

3 As to the times for which different parts of the body can withstand the deprivation of oxygen, see, e.g., Feldman, S. and Ellis, H., Principles of Resuscitation (1967), pp. 58, 101Google Scholar; Karplus, H., “Suspended Animation and Resuscitation” (1966) 13 J.For.Med. 68Google Scholar; Negovskii, V. A., Resuscitation and Artificial Hypothermia (1962, trans. Haigh, B.), pp. 115–117Google Scholar; Verschure, J. C. M. Hattinga, in Organ Transplantation Today (1969, ed. Mitchison, N. A., Greep, J. M. and Verschure, J. C. M. Hattinga), p. 349.Google Scholar

4 The electroencephalogram is an instrument which monitors the frequency and amplitude of electrical activity in the brain, and records the data on a graph. It cannot be relied on when the patient is hypothermic (below 32.2°C.), or where he has taken central nervous depressants, such as barbiturates.

5 See Binnie, C. D., Prior, P. F., Lloyd, D. S. L., Scott, D. F. and Margerison, J. H., “Electroencephalographic Prediction of Fatal Anoxic Brain Damage after Resuscitation from Cardiac Arrest” [1970] 4 B.M.J. 265–268Google Scholar; Silverman, D., Masland, R. L., Saunders, M. G. and Schwab, R. S., “Irreversible Coma Associated with Electrocerebral Silence” (1970) 20 Neurology 525–533.Google Scholar

6 Cf. The Times, 26 July 1963Google Scholar (inquest on the body of David Potter at Newcastle upon Tyne).

7 See, e.g., Wise v. Kaye [1962] 1 Q.B. 638.Google Scholar As to the plaintiff's condition, see Ibid pp. 646, 654, 655.

8 Kilbrandon, Lord, in Ethics in Medical Progress (1966, ed. Wolstenholme, G. E. W. and O'connor, M.), p. 213.Google Scholar See also ibid p. 158.

9 Fullager, R. K., “The Lore and Law of Tissue Homotransplantation” (1966) 10 Proc.Med.-Leg.Soc.Vict. 161, 162Google Scholar (his emphasis).

10 Cf. Beecher, H. K., Research and the Individual (1970), p. 155Google Scholar (“the as yet unresolved question of what constitutes true death”).

11 Williams, Glanville, “Euthanasia and Abortion” (1966) 38 U.Colo.L.R. 178, 201.Google Scholar

12 Pope Pius XII disclaimed any competence of the Catholic Church to determine whether the soul had or had not left the body of a deeply unconscious individual. See (1957) 49 A.A.S. 1027.

13 Of course, a biologist may, for his own purposes, wish to mark a precise point at which the death of an organism may be said to have occurred. But the considerations which weigh with him will not necessarily be the same as those which weigh with a philosopher, a theologian or a lawyer. The fact—if such it be—that biologists normally regards decerebrate cats as living rather than dead, will not be conclusive when it comes to the law relating to human beings.

14 Editorial, “The Moment of Death” (1967) 14 World Med.J. 133.Google Scholar

15 Shapiro, H. A., Editorial, “Heart Grafting in Man” (1968) 15 J.For.Med. 1, 3.Google Scholar

16 Appal, J. Z., “Ethical and Legal Questions Posed by Recent Advances in Medicine” (1968) 205 J.A.M.A. 513, 514.Google Scholar

17 “Death is not a continuing event and is an event that takes place at a precise time”: Thomas v. Anderson (1950) 215 P. 2d 478, 482Google Scholar (Cal.). In Hickman v. Peacey [1945]Google Scholar A.C. 304, 317, Viscount Simon L.C., dissenting, said “Death, I suppose, may be a process rather than an instantaneous event.” But he did not examine the implications of the acceptance of this view for legal purposes.

18 Cf. Wilson, W. A., “A Note on Fact and Law” (1963) 26 M.L.R. 609, 610–611.Google Scholar

19 It may be observed that, even if the English courts were to simply follow the view of the English medical profession, it is very far from certain that this would at present lead to irreversibly comatose individuals being considered dead. Cf. Editorial, “Donors for Organ Grafting” [1972] 1 B.M.J. 582.Google Scholar

20 Cf. Hart, H. L. A., “Positivism and the Separation of Law and Morals” (1958) 71 Harv.L.R. 593, 606–615Google Scholar; Hart, H. L. A., The Concept of Law (1961), pp. 123–126.Google Scholar Professor Fuller has criticised Professor Hart's approach to these matters. See, e.g., Fuller, L. I., “Positivism and Fidelity to Law—A Reply to Professor Hart” (1958) 71 Harv.L.R. 630, 661–669.Google Scholar The present writer is convinced by many of Professor Fuller's arguments on this particular issue. But for the present purpose, in dealing with a distinction (between life and death) which is of importance in many different rules of law, having many different purposes, a core/penumbra distinction provides a convenient framework for the purpose of the discussion. The conclusions reached would not have been different if Professor Fuller's approach had been adopted.

21 Cf. Re Butler, Camberwell (Wingfield Mews) No. 2 Clearance Order, 1936 [1939] 1 K.B. 570, 579.Google Scholar

22 As to legal and ordinary concepts, see generally Simpson, A. W. B., “The Analysis of Legal Concepts” (1964) 80 L.Q.R. 535, 545–548.Google Scholar

23 It is unnecessary, for the present purpose, to express an opinion on whether a decision on this matter should be characterised as one of law, or one of fact.

24 See Simpson, A. W. B., op. cit., n. 22Google Scholar, 547, 548.

25 The Times, 20 March 1971, p. 2.Google Scholar See also, e.g., The Times, 23 September 1969, p. 8Google Scholar (“Doctor succumbs after eight years in coma”).

26 Most people would not react favourably to the suggestion that such bodies should be buried or cremated.

27 “A Definition of Irreversible Coma” (1968) 205 J.A.M.A. 337Google Scholar (Report of the Ad Hoc Committee of the Harvard Medical School to Examine the Definition of Brain Death). Cf. Arnold, J. D., Zimmerman, T. F. and Martin, D. C., “Public Attitudes and the Diagnosis of Death” (1968Google Scholar) 206 J.A.M.A. 1949, 1954 (“Two thirds of individuals surveyed thought that death occurred when the heart stopped or breathing had ceased or both. Only 9% thought of death in terms of irreversible loss of cerebral function”).

28 It is difficult to see what “burden”—other than sometimes a financial one, of which he will remain forever ignorant—an irreversibly comatose patient bears.

29 There are other reasons why an examination of these considerations is desirable. If the considerations are sufficiently overwhelming, a court might play down the strength of current usage. Conventional usage may change. And, although it is not the direct concern of this paper, the discussion will be of relevance to the debate concerning a statutory definition of death.

30 Ayer, A. J., The Concept of a Person and Other Essays (1963), p. 82.Google Scholar

31 See Taylor's Principles and Practice of Medical Jurisprudence (12th ed., 1965, by Simpson, K.), I, p. 104Google Scholar, and also Kvittingen, T. D. and Naess, A., “Recovery from Drowning in Fresh Water” [1963] 1 B.M.J. 1315–1317.Google Scholar

32 But see R. v. Jordan (1956) 40 Cr.App.R. 153, 157–158Google Scholar; R. v. Smith [1959] 2 Q.B. 35, 42–43.Google Scholar See also n. 37.

33 The British Medical Association has ruled that it is ethically unacceptable to transfer a “desperately ill prospective donor” to another hospital, simply to be near the potential recipient. British Medical Association Members Handbook (1970), p. 63.Google Scholar

34 See, e.g., Calne, R. Y., “Ethics, the Law and the Future,” in Clinical Organ Transplantation (1971, ed. Calne, R. Y.), pp. 517, 520.Google Scholar

35 See Report of the Joint Committee on Dialysis and Transplantation in the Management of Chronic Renal Failure (Royal College of Physicians, 1972), p. 10.Google Scholar

36 See (1968) 761 Parl.Deb., Commons, 216, 217 (Recommendation of the Conference on the Transplantation of Organs); and also R. Y. Calne, in Ethics in Medical Progress, op. cit., n. 8, p. 73.

37 See, e.g., Calne, R. Y., Renal Transplantation (2nd ed., 1967), p. 152Google Scholar; Peart, W. S., Letter to the Editor, The Times, 3 June 1969Google Scholar; Calne, R. Y., “Organ Transplantation,” in Matters of Life and Death (1970, ed. Shotter, E.), pp. 45, 47Google Scholar; Editorial, “Donors for Organ Grafting” [1972] 1 B.M.J. 582.Google Scholar There is reason to believe that a doctor will not incur liability in withholding or withdrawing artificial respiration from an irreversibly comatose individual—at least in the absence of agreement to provide or continue with it. However, the matter requires fuller examination than is possible here.

38 A related question is whether an anencephalic “monster”—the product of the conception of two human beings, who has been “born alive,” but without the higher regions of the brain—is a human being. However, even if anencephalic “monsters” were not regarded as human beings, on the ground that they lacked capacity for consciousness, this would not be conclusive as to whether someone who was once a living human being, but who has lost the capacity for consciousness, has therefore ceased to be a living human being.

39 Kittle, C. F., quoted in Wassmer, T. A., “Between Life and Death: Ethical and Moral Issues Involved in Recent Medical Advances” (1968) 13 Vill.L.Rev. 759, 771.Google Scholar See also, e.g., Beecher, H. K., op. cit., n. 10, p. 154Google Scholar (“life is the ability to communicate with others”); Welford, A. T., “Mental Integrity and the Nature of Life” [1970] 1 Med.J.Aust. 1135, 1137Google Scholar (“when [mental and emotional integrity] are lost or lacking should we not say that the surviving body … is in a religious sense indeed dead?”).

40 For example, an approach whereby a person is only said to have died when his respiratory and circulatory activities have ceased (and, some might wish to add, cannot both return to spontaneous functioning) and his brain is damaged to an extent which precludes a return to consciousness might meet the main objections which may be directed against the traditional formulations, while avoiding many of those which can be levelled against an approach concerned exclusively with capacity for consciousness. It would be simple to add a further qualification to meet the objection (cf. Gray v. Sawyer (1952) 247 S.W. 2d. 496Google Scholar, 497 (Ky.)) that respiration and circulation may for a time continue, or be maintained, in a decapitated body.

41 Cf. Wise v. Kaye [1962] 1 Q.B. 638.Google Scholar As to the patient's condition, see Ibid pp. 646, 654, 655.

42 In preparing this paper, the writer has benefited from the comments of many doctors and lawyers. He is particularly grateful to Dr. J. M. Finnis and to his brother Dr. D. C. G. Skegg, both of whom made helpful criticisms of an earlier draft.