PART II
The Dying are not yet Dead
However, even if the tests could infallibly forecast death in the commonly-understood sense of the term within a few hours or days, would it be right (or logical) to hold that the patient satisfying these criteria is - to all intents and purposes maybe - already dead? I maintain that it is not correct, or proper, to confuse this state in which he is doomed to die soon - however certain that may be - with death itself. To my mind, a comatose patient without brain stem reflexes and dependent upon a mechanical ventilator is still a living human being; as such he is deserving of our every care, without intrusion of any third party interest, right up to the time when his circulation finally ceases and he can be truthfully described as a cadaver.
I continue to maintain this view despite its being dismissed, by the transplanters, as reactionary and akin to the stance of members of the Flat Earth Society The implication is, I suppose, that it is somehow improper to examine too closely the fundamental concept and science involved in this novel re-definition of death because it has made possible such wonderful surgical advances. In other words, the spectacular achievements are held to justify the means - which (they appear to suggest) are therefore best left decently veiled. I think that a very dangerous philosophy. And having said so, I also have to say that I am far from convinced that transplantation of these vital organs really does constitute a lasting therapeutic advance. There is, in fact, no scientific evidence that - taking all relevant factors into account - these transplant procedures do more good than harm. As a perceptive colleague remarked, cardiac transplantation probably increases rather than decreases the sum of human misery. But the over-statement of the benefits, the impossibility of knowing the natural prognosis, and the many other clinical and logistic difficulties are - like the prospects for alternative ethical treatment strategies - another part of the story.
Correcting a Misleadingly Rosy Impression
Had the public been fully and frankly informed on all the relevant aspects, it might not have been persuaded that it wants transplantation at almost any cost. That it has been so persuaded - as I am frequently assured it has - offers ample testimony to the power of the media in forming public opinion. My hope is that the many sincere and highly talented people involved in journalism and broadcasting will, now that they are beginning to understand the facts of the matter, wish to use that same power to correct the misleadingly rosy impression of this really rather macabre activity which they may hitherto have helped to propagate. But their task will be far from easy, given that Society seems now to demand of Medicine that it shall provide an answer to Man's mortality.
To return to the fundamental issue, I must record my surprise and disappointment that theologians, philosophers and lawyers appear to have accepted the propriety of certifying and treating as dead, a patient on a ventilator who - though almost certainly doomed to die soon - still has his own natural blood circulation and other bodily and brain functions at the time. Some of them, apparently, see no essential difference between this late stage in the dying process and death itself; once the tests have pointed to a fatal outcome, he is "as good as dead," they say, and can be dealt with accordingly - though few, I imagine, would bury or cremate a man with a beating heart.....
Others, including members of the judiciary I'm told, do understand the factual difference between the dying state called "brain stem death" and true death but do not think it matters in practice. The useful life of the patient on the ventilator is clearly over, they say, so why should his organs not be removed while there is still life in him if this is necessary for them to be of use to others? The fact that the donor has to be certified "dead " - by some doctors using arbitrary criteria which many or most doctors would not deem sufficient for the purpose - has to be accepted as a necessary preliminary to the surgery (to avoid the obvious legal and ethical difficulties). The rights and wrongs of such certification are, they say, beyond their understanding and a matter for "the medical profession."
There is, in the U.K., no legal definition of death and so, where the Law is concerned, a person is dead when a doctor certifies him "dead." By this means, the legal profession sidesteps the fundamental issue. But what would happen, I wonder, if one or more doctors certified a person dead and others (like me and many more) were willing to testify that he was still a living human being, and certainly not a corpse, when he was being operated upon for the removal of his vital organs? Or if the precise time and date of death mattered very much in the settlement of a civil action and one doctor said the deceased was dead at the time when the " brain stem death" criteria were sought and satisfied while another said he was not dead at that time and did not actually die until his heart was removed some hours or days later?
PART III
Where might it Lead ?
Such legal niceties apart, it seems to me that it is important not to allow confusion of "dying" with "dead" simply to avoid facing up to the ethical problems, e.g. allegations of active euthanasia, which beset even today's secular, utilitarian society. The "slippery slope" argument seems to me to have some force in this context. If utterly helpless young people being kept alive by mechanical ventilators today, whom will it be deemed appropriate to use as sources of organs and for experimental purposes tomorrow? Newborn babies with little or no forebrain (anencephalics) but who cannot, by any stretch of the imagination, be regarded as "brain stem dead " have already been used thus ....
It occurs to me that those theologians and others who have accepted the notion that "brain stem death = death" may have been misled, for this is the stated basis for the move, in 1979, by those satisfied there is no function remaining anywhere in the brain and no possibility of any such function ever returning, whatever may subsequently be done. It would not be surprising if they had been so misled for this is the stated basis for the move, in 1979, by the Conference of the Medical Royal Colleges of the U.K. from use of the"brain stem death" criteria as a justification for turning off the mechanical ventilator (so that natural death might be allowed to occur) to their use as a basis for the certification of death itself. This change of use was clearly prompted by the perceived need to provide hearts and livers in a state suitable for transplantation; it served no other purpose, there being no need to certify death before discontinuing life-support solely in the interests of the patient (and his near and dear).
It was to provide a consensus basis for that most onerous decision,i.e. to terminate what was clearly otiose and unkind therapy, that so-called "brain stem death" criteria were promulgated by the Conference in 1976. The criteria were a distillation of those we had been using informally for some years and in which we had developed confidence with regard to their ability to forecast death within a short time of their fulfilment. I did not object to their propagation for that stated purpose for it seemed to me that their general adoption would make such decisions more comfortable, particularly for those faced with the problem only occasionally. However, in retrospect, I should perhaps have been suspicious that the stated purpose (in 1976) was not the only purpose even then envisaged because the Memorandum publishing the criteria acknowledged the involvement of the Transplant Advisory Panel .....
Policy Confuses Prognosis and Diagnosis
Be that as it may, Conference - the policy-making body to which the D.H.S.S. appeals for advice - simply decided, in 1979, that the sesame criteria which we had been using for purely prognostic purposes should henceforth be used, without modification, for the diagnosis (and certification) of death itself, i.e. while the 'circulation and other vital functions continued naturally. The justification offered for this enormous leap was that by the time these criteria were satisfied "all functions of the brain have permanently and irreversibly ceased." The redundant terms are interesting, and may betray lack of confidence in their momentous edict. To almost anyone of a truly scientific disposition, and particularly to those with experience of the biological sciences, such a claim must have seemed at the very least incautious and - given that the criteria do not require that the greater part of the brain be tested at all - perhaps frankly ludicrous. But to understand the full absurdity of this claim, some knowledge of the tests used to diagnose "brain death" is necessary and I will therefore attempt to outline those in use for the purpose in this country.
It is, of course, a requirement that the patient be deeply comatose (though grades of unconsciousness are, in point of fact, quite difficult to determine) and unable to breathe spontaneously, i.e. air is being delivered to his lungs by a mechanical ventilator. It is worth mentioning that this is the only function of this so-called "life-support machine"; it does not take over the circulatory function, as a lot of people seem to think. The blood flow through the body and parts of the brain, in such a patient, is maintained naturally by the beating heart.
It is a requirement that the cause of coma and ventilator dependence be known; common causes are severe head injury and bleeding into the brain but in some cases the brain damage is due to a period of anoxia and its extent may then be less easy to determine. When,after a few hours or several days, it seems likely that a (fatal outcome will inevitably ensue, some of the reflexes with pathways through the brain stem - the stalk that connects the major part of the brain (the cerebral hemispheres) to the spinal cord - re tested. This involves looking for eye responses to light and to touch, and to the indirect stimulation provided by irrigating the ears with ice-cold saline. There?must be no movements in the head and neck area in response to stimulation of any part of the body. Nor must there be any response to stimulation of the throat or windpipe. Finally, to test the all important supposition that the patient will never again be able to breathe on his own, the mechanical ventilator is disconnected for 10 minutes; if there is any sign of a spontaneous inspiratory effort during this time, then the criteria for "brain stem death" are not satisfied. If there is no sign of any attempt to breathe, mechanical ventilation is resumed and an unspecified period of time is allowed to elapse before the brain stem reflexes are again sought. If they remain absent the ventilator is again disconnected for a similar test period. If there is still no inspiratory effort, and if temporary influences such as drugs have been excluded, the criteria for the diagnosis of "brain death" - U.K. style - have been satisfied and the patient is certified dead.
Mechanical ventilation is continued thereafter, sometimes for days, while the complicated arrangements are made for removal of his vital organs and, of course, throughout the surgical procedure involved in acquiring them.
To be continued ...
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