Re A (A Child) and the United Kingdom Code of Practice for the Diagnosis and Confirmation of Death: Should a Secular Construct of Death Override Religious Values in a Pluralistic Society?

Abstract

The determination of death by neurological criteria remains controversial scientifically, culturally, and legally, worldwide. In the United Kingdom, although the determination of death by neurological criteria is not legally codified, the Code of Practice of the Academy of Medical Royal Colleges is customarily used for neurological (brainstem) death determination and treatment withdrawal. Unlike some states in the US, however, there are no provisions under the law requiring accommodation of and respect for residents' religious rights and commitments when secular conceptions of death based on medical codes and practices conflict with a traditional concept well-grounded in religious and cultural values and practices. In this article, we analyse the medical, ethical, and legal issues that were generated by the recent judgement of the High Court of England and Wales in Re: A (A Child) [2015] EWHC 443 (Fam). Mechanical ventilation was withdrawn in this case despite parental religious objection to a determination of death based on the code of practice. We outline contemporary evidence that has refuted the reliability of tests of brainstem function to ascertain the two conjunctive clinical criteria for the determination of death that are stipulated in the code of practice: irreversible loss of capacity for consciousness and somatic integration of bodily biological functions. We argue that: (1) the tests of brainstem function were not properly undertaken in this case; (2) the two conjunctive clinical criteria set forth in the code of practice cannot be reliably confirmed by these tests in any event; and (3) absent authentication of the clinical criteria of death, the code of practice (in fact, although implicitly rather than explicitly) wrongly invokes a secular definition of death based on the loss of personhood. Consequently, the moral obligation of a pluralistic society to honor and respect diverse religious convictions to the greatest extent possible is being violated. Re A (A Child) is contrasted with the US case of Jahi McMath in which the court accommodated parental religious objection to the determination of neurological death codified in the Uniform Determination of Death Act. We conclude that the legal system in the United Kingdom should not favour a secular definition of death over a definition of death that is respectful of religious values about the inviolability and sanctity of life. We recommend the legal recognition of religious accommodation in death determination to facilitate cultural sensitivity and compassionate care to patients and families in a pluralistic society.Electronic supplementary materialThe online version of this article (doi:10.1007/s10730-016-9307-y) contains supplementary material, which is available to authorized users.

Legislative Enforcement of Nonconsensual Determination of Neurological (Brain) Death in Muslim Patients: A Violation of Religious Rights

“…Since then, empirical breakthroughs in neuroscience research have dispelled many old dogmas in the clinical practice of neurology (Gross 2000 ). Nevertheless, the outdated dogmatic understanding of human consciousness continues to be entrenched in US and UK clinical practice guidelines for brain death determination (Peterson et al 2014 ; Rady and Verheijde 2016a , b ; Choong and Rady 2016 ). Advances in neuroscience have rendered the term deep coma obsolete and have replaced it with the more accurate term disorders of consciousness (Giacino et al 2014 ; Peterson et al 2015 ; Naci et al 2017 ).…”

“…The criteria for clinical determination of brain death still lack scientific validation almost 50 years since the original inception of this concept of death (Varelas 2014 ; Smith and Citerio 2017 ). Both the US and the UK clinical practice guidelines for brain death determination have been scientifically challenged (Choong and Rady 2016 ; Rady and Verheijde 2016a ). Contemporary neuroscientists have also challenged the scientific foundation and validation of contemporary criteria in brain death (Peterson et al 2014 ).…”

“…The conception of brain death is grounded in a secular philosophical interpretation of the value of human life on the basis of personhood (Choong and Rady 2016 ). Contemporary medical criteria for death determination in end-of-life organ donation (Fig.…”

“…This is certain to impede the organ donation and transplantation practice, and transplantation advocates have therefore called for additional governmental support through legislative enforcement of nonconsensual determination of brain death (Lewis and Pope 2017 ; Lewis and Greer 2017 ; Lewis 2017 ). Legislative enforcement of nonconsensual brain death determination will harm patients and violate their constitutional rights (Choong and Rady 2016 ; Rady et al 2017 ). Chamsi-Pasha and Albar ( 2017 ) have also urged for legislative enforcement of nonconsensual determination of brain death and immediate termination of life-support and medical treatment in Muslim patients who are not organ donors on the grounds of futility of treatment and avoidance of wastefulness of limited healthcare resources.…”

Neuroscience and legal challenges to brainstem criteria of death in the United Kingdom

“…However, careful analysis of the published judgement in Re A (A Child) uncovers serious medical, ethical, societal and legal problems with the code of practice for the diagnosis and confirmation of death that the UK judicial system has yet to confront and address appropriately . There is no UK statutory definition of death; therefore, the judicial system has relied exclusively on the historical neurological criteria of death articulated more than four decades ago and reaffirmed in 2008 . Since then, neuroscience has disproved the fundamental assumptions underpinning the code of practice about the brainstem being the single mediator of both consciousness and integrative function in humans .…”