The Case Against Solicitation of Consent for Apnea Testing

Consent to testing for brain death

Canada has recently published a new Clinical Practice Guideline on the diagnosis and management of brain death. It states that consent is not necessary to carry out the interventions required to make the diagnosis. A supporting article not only sets out the arguments for this but also contends that 'UK laws similarly carve out an exception, excusing clinicians from a prima facie duty to get consent'. This is supplemented by the claim that recent court decisions in the UK similarly confirm that consent is not required, referencing two judgements in Battersbee We disagree with the authors' interpretation of the law on consent in the UK and argue that there is nothing in Battersbee to support the conclusion that consent to testing is not necessary. Where there is a disagreement about testing for brain death in the UK, court authorisation is required.

An Update on Brain Death/Death by Neurologic Criteria since the World Brain Death Project

The World Brain Death Project (WBDP) is a 2020 international consensus statement that provides historical background and recommendations on brain death/death by neurologic criteria (BD/DNC) determination. It addresses 13 topics including: (1) worldwide variance in BD/DNC, (2) the science of BD/DNC, (3) the concept of BD/DNC, (4) minimum clinical criteria for BD/DNC determination, (5) beyond minimum clinical BD/DNC determination, (6) pediatric and neonatal BD/DNC determination, (7) BD/DNC determination in patients on ECMO, (8) BD/DNC determination after treatment with targeted temperature management, (9) BD/DNC documentation, (10) qualification for and education on BD/DNC determination, (11) somatic support after BD/DNC for organ donation and other special circumstances, (12) religion and BD/DNC: managing requests to forego a BD/DNC evaluation or continue somatic support after BD/DNC, and (13) BD/DNC and the law. This review summarizes the WBDP content on each of these topics and highlights relevant work published from 2020 to 2023, including both the 192 citing publications and other publications on BD/DNC. Finally, it reviews questions for future research related to BD/DNC and emphasizes the need for national efforts to ensure the minimum standards for BD/DNC determination described in the WBDP are included in national BD/DNC guidelines and due consideration is given to the recommendations about social and legal aspects of BD/DNC determination.

Consent for determination of death by neurologic criteria in Canada: an analysis of legal and ethical authorities, and consensus-based working group recommendations

This article addresses the following question: should physicians obtain consent from the patient (through an advance directive) or their surrogate decision-maker to perform the assessments, evaluations, or tests necessary to determine whether death has occurred according to neurologic criteria? While legal bodies have not yet provided a definitive answer, significant legal and ethical authority holds that clinicians are not required to obtain family consent before making a death determination by neurologic criteria. There is a near consensus among available professional guidelines, statutes, and court decisions. Moreover, prevailing practice does not require consent to test for brain death. While arguments for requiring consent have some validity, proponents cannot surmount weightier considerations against imposing a consent requirement. Nevertheless, even though clinicians and hospitals may not be legally required to obtain consent, they should still notify families about their intent to determine death by neurologic criteria and offer temporary reasonable accommodations when feasible. This article was developed with the legal/ethics working group of the project, A Brain-Based Definition of Death and Criteria for its Determination After Arrest of Circulation or Neurologic Function in Canada developed in collaboration with the Canadian Critical Care Society, Canadian Blood Services, and the Canadian Medical Association. The article is meant to provide support and context for this project and is not intended to specifically advise physicians on legal risk, which in any event is likely jurisdiction dependent because of provincial or territorial variation in the laws. The article first reviews and analyzes ethical and legal authorities. It then offers consensus-based recommendations regarding consent for determination of death by neurologic criteria in Canada.

The Shifting Landscape of Death by Neurologic Criteria in Pediatrics: Current Controversies and Persistent Questions

Since the concept of death by neurologic criteria (DNC) or "brain death" was articulated by the Harvard Ad Hoc Committee in 1968, efforts to establish and uphold DNC as equivalent to biologic death have been supported through federal and state legislation, professional guidelines, and hospital policies. Despite these endeavors, DNC remains controversial among bioethics scholars and clinicians and is not universally accepted by patient families and the public. In this focused review, we outline the current points of contention surrounding the diagnosis of DNC in pediatric patients. These include physiologic, legal, and philosophical inconsistencies in the definition of DNC, controversy regarding the components of the clinical exam, variability in clinical practice, and ethical concerns regarding justice and role of informed consent. By better understanding these controversies, clinicians may serve families grappling with the diagnosis of DNC more effectively, compassionately, and equitably.

Statement in Support of Revising the Uniform Determination of Death Act and in Opposition to a Proposed Revision

Discrepancies between the Uniform Determination of Death Act (UDDA) and the adult and pediatric diagnostic guidelines for brain death (BD) (the "Guidelines") have motivated proposals to revise the UDDA. A revision proposed by Lewis, Bonnie and Pope (the RUDDA), has received particular attention, the three novelties of which would be: (1) to specify the Guidelines as the legally recognized "medical standard," (2) to exclude hypothalamic function from the category of "brain function," and (3) to authorize physicians to conduct an apnea test without consent and even over a proxy's objection. One hundred seven experts in medicine, bioethics, philosophy, and law, spanning a wide variety of perspectives, have come together in agreement that while the UDDA needs revision, the RUDDA is not the way to do it. Specifically, (1) the Guidelines have a non-negligible risk of false-positive error, (2) hypothalamic function is more relevant to the organism as a whole than any brainstem reflex, and (3) the apnea test carries a risk of precipitating BD in a non-BD patient, provides no benefit to the patient, does not reliably accomplish its intended purpose, and is not even absolutely necessary for diagnosing BD according to the internal logic of the Guidelines; it should at the very least require informed consent, as do many procedures that are much more beneficial and less risky. Finally, objections to a neurologic criterion of death are not based only on religious belief or ignorance. People have a right to not have a concept of death that experts vigorously debate imposed upon them against their judgment and conscience; any revision of the UDDA should therefore contain an opt-out clause for those who accept only a circulatory-respiratory criterion.

A review of current controversies in determining death by neurologic criteria in children

PURPOSE OF REVIEW

Death by neurologic criteria (DNC) is the irreversible cessation of all functions of the entire brain, including the brainstem. It is legally recognized as equivalent to cardiopulmonary death. Legal and ethical controversies surrounding DNC have emerged as a result of several highly publicized cases that have eroded public trust in our ability to declare DNC accurately. In this review, we focus on recently published primary data about DNC and address some of these controversies.

RECENT FINDINGS

Approximately 21% of children who die in pediatric intensive care units (PICU) are declared DNC. Although 60% of physicians report that they have been asked to maintain organ support after DNC declaration, less than 1% of patients remain physically present in the PICU more than 5 days after DNC declaration. We discuss strategies for safely conducting the apnea test, indications and prevalence of ancillary testing, and objections to DNC, including issues of consent and requests for ongoing organ support.

SUMMARY

In order to maintain public trust, published guidelines must be followed to accurately and consistently diagnose DNC. We must develop strategies to respond to objections to DNC determination. Ongoing research is needed to improve the safety of apnea testing and indications for and interpretation of ancillary testing.