Brain death, religious freedom, and public policy: New Jersey's landmark legislative initiative

Revise the UDDA to Align the Law with Practice through Neuro-Respiratory Criteria

Although the Uniform Determination of Death Act (UDDA) has served as a model statute for 40 years, there is a growing recognition that the law must be updated. One issue being considered by the Uniform Law Commission's Drafting Committee to revise the UDDA is whether the text “all functions of the entire brain, including the brainstem” should be changed. Some argue that the absence of diabetes insipidus indicates that some brain functioning continues in many individuals who otherwise meet the “accepted medical standards” like the American Academy of Neurology's. The concern is that the legal criteria and the medical standards used to determine death by neurologic criteria are not aligned. We argue for the revision of the UDDA to more accurately specify legal criteria that align with the medical standards: brain injury leading to permanent loss of the capacity for consciousness, the ability to breathe spontaneously, and brainstem reflexes. We term these criteria neurorespiratory criteria and show that they are well-supported in the literature for physiologic and social reasons justifying their use in the law.

Muslim American physicians' views on brain death: Findings from a national survey

Background

Biotechnology has introduced a new physiological state, "brain death," that continues to attract controversy and confusion. While variability in diagnostic criteria for, and physician practices regarding, "brain death" has been studied, few studies examine physicians' normative views on the significance of "brain death" and how religiosity implicates these views.

Objective

The objective is to assess how Muslim physicians' views on death, and how their religiosity and acculturation, associate with their perceptions of "brain death."

Methods

A randomized national sample of 626 American Muslim physicians completed a mailed questionnaire assessing sociodemographic characteristics, religiosity, and views about death. Measures of religious practice and acculturation were analyzed as predictors of physician views at the bivariate and multivariable levels. In conducting the multivariate analysis, P-values less than 0.05 were deemed statistically significant.

Results

Two-hundred and fifty-five respondents completed the survey (41% response rate). Most participants agreed that death is the irreversible cessation of cardiac and respiratory function (90%), while half agreed or disagreed with other definitions of death, such as loss of personhood or the equivalence of cardiopulmonary and neurological criteria for death. Physicians who scored higher on the religious practice scale had significantly lower odds of agreeing with the statement; "brain death" signifies the departure of the soul from the body [odds ratio (OR) = 0.57, 95% confidence interval (CI): 0.33-0.98]. Those who were born in the US, or immigrated to the US as a child, had greater odds of viewing death as the irreversible loss of personhood and consciousness [OR = 3.52, 95% CI: 1.62-7.63].

Conclusion

Physician characteristics such as religiosity and acculturation appear to influence their views on what constitutes death and how it should be diagnosed. In our sample of Muslim physicians, there appears to be significant reservation toward equating neurological and cardiopulmonary criteria to determine death and disquiet regarding the meaning of "brain death" in general.

Ethical Issues in Organ Transplantation at End of Life: Defining Death

End-of-life vital organ transplantation involves singular ethical issues, because survival of the donor is impossible, and organ retrieval is ideally as close to the death of the donor as possible to minimize organ ischemic time. Historical efforts to define death have been met with confusion and discord. Fifty years on, the Harvard criteria for brain death continue to be problematic and now face significant legislative efforts to limit their authority.

Family and transplant professionals' views of organ recovery before circulatory death for imminently dying patients: A qualitative study using semistructured interviews and focus groups

Donation before circulatory death for imminently dying patients has been proposed to address organ scarcity and harms of nondonation. To characterize stakeholder attitudes about organ recovery before circulatory death we conducted semistructured interviews with family members (N = 15) who had experienced a loved one's unsuccessful donation after circulatory death and focus groups with professional stakeholders (surgeons, anesthesiologists, critical care specialists, palliative care specialists, organ procurement personnel, and policymakers, N = 46). We then used qualitative content analysis to characterize these perspectives. Professional stakeholders believed that donation of all organs before circulatory death was unacceptable, morally repulsive, and equivalent to murder; consent for such a procedure would be impermissible. Respondents feared the social costs related to recovery before death were too high. Although beliefs about recovery of all organs were widely shared, some professional stakeholders could accommodate removal of a single kidney before circulatory death. In contrast, family members were typically accepting of donation before circulatory death for a single kidney, and many believed recovery of all organs was permissible because they believed the cause of death was the donor's injury, not organ procurement. These findings suggest that definitions of death and precise rules around organ donation are critical for professional stakeholders, whereas donor families find less relevance in these constructs for determining the acceptability of organ donation. Donation of a single kidney before circulatory death warrants future exploration.

Restructuring the Principle of Medical Futility

This essay surveys the need for a clear and objective definition of medical futility. It is urged that once agreement is obtained for structuring operational guidelines for determining futility, a three-tier decisional structure can fee developed for testing whether a given treatment falls within the scope of these guidelines. Under the first tier, the treating physician would be given the primary responsibility for making the determination to withhold treatment on the grounds of futility. While the physician would be under a duty not to prescribe treatment deemed futile, he would be obliged to inform the patient and his family of this decision, including the reasons for it, in order to allow, under the second tier, for an appeal to be taken by the patient or family to the hospital ethics committee. The third tier recognizes a right of limited appeal to the courts.

Frequency of use of the religious exemption in New Jersey cases of determination of brain death

BACKGROUND

The 1981 Uniform Determination of Death Act (UDDA) established the validity of both cardio-respiratory and neurological criteria of death. However, many religious traditions including most forms of Haredi Judaism (ultra-orthodox) and many varieties of Buddhism strongly disagree with death by neurological criteria (DNC). Only one state in the U.S., New Jersey, allows for both religious exemptions to DNC and provides continuation of health insurance coverage when an exception is invoked in its 1991 Declaration of Death Act (NJDDA). There is yet no quantitative or qualitative data on the frequencies of religious exemptions in New Jersey. This study gathered information about the frequency of religious exemptions and policy in New Jersey that was created out of respect for religious beliefs.

METHODS

Literature and internet searches on topics related to religious objections to DNC were conducted. Fifty-three chaplains and heads of bioethics committees in New Jersey hospitals were contacted by phone or email requesting a research interview. Respondents answered a set of questions about religious exemptions to DNC at the hospital where they worked that explored the frequency of such religious exemptions in the past five years, the religious tradition indicated, and whether any request for a religious exemption had been denied. This study was approved by the Northeastern University Institutional Review Board (IRB #: 16-03-15).

RESULTS

Eighteen chaplains and bioethics committee members participated in a full research interview. Of these, five reported instances of religious exemptions to DNC occurring at the hospital at which they worked for a total of approximately 30-36 known exemptions in the past five years. Families sought religious exemptions because of faith in an Orthodox Judaism tradition and nonreligious reasons. No failed attempts to obtain an exemption were reported.

CONCLUSIONS

Religious exemptions to DNC in New Jersey do occur, although very infrequently. Prior to this study, there was no information on their frequency. Considering religious exemptions do occur, there is a need for national or state policies that addresses both religious objections to DNC and hospital resources. More information is needed to better understand the impact of granting religious exemptions before new policy can be established.

Brain Death

Death determined by neurologic criteria, commonly referred to as "brain death," occurs when function of the entire brain ceases, including the brain stem. Diagnostic criteria for brain death are explicit but controversy exists regarding nuances of the evaluation and potential confounders of the examination. Hospitals and ICU teams should carefully consider which clinicians will perform brain death testing and should use standard processes, including checklists to prevent diagnostic errors. Proper diagnosis is essential because misdiagnosis can be catastrophic. Timely, accurate brain death determination and aggressive physiologic support are cornerstones of both good end-of-life care and successful organ donation.

Is there a place for CPR and sustained physiological support in brain-dead non-donors?

This article addresses whether cardiopulmonary resuscitation (CPR) and sustained physiological support should ever be permitted in individuals who are diagnosed as brain dead and who had held previously expressed moral or religious objections to the currently accepted criteria for such a determination. It contrasts how requests for care would normally be treated in cases involving a brain-dead individual with previously expressed wishes to donate and a similarly diagnosed individual with previously expressed beliefs that did not conform to a brain-based conception of death. The paper first focuses narrowly on requests for CPR and then expands its scope to address extended physiological support. It describes how refusing the brain-dead non-donor's requests for either CPR or extended support would represent enduring harm to the antemortem or previously autonomous individual by negating their beliefs and self-identity. The paper subsequently discusses potential implications of policy that would allow greater accommodations to those with conscientious objections to currently accepted brain-based death criteria, such as for cost, insurance, higher brain formulations and bedside communication. The conclusion is that granting wider latitude to personal conceptions around the definition of death, rather than forcing a contested definition on those with valid moral and religious objections, would benefit both individuals and society.

Bioethics, Religion, and Public Policy: Intersections, Interactions, and Solutions

Bioethics in America positions itself as a totalizing discipline, capable of providing guidance to any individual within the boundaries of a health or medical setting. Yet the religiously observant or those driven by spiritual values have not universally accepted decisions made by "secular" bioethics, and as a result, religious bioethical thinkers and adherents have developed frameworks and rich counter-narratives used to fend off encroachment by policies perceived as threatening. This article uses brain death in Jewish law, the case of Jahi McMath, and vaccination refusal to observe how the religious system of ethics is presently excluded from bioethics and its implications.

Is multiculturalism bad for health care? The case for re-virgination

Hymenoplasty is a surgical procedure requested by women who are expected to remain virgins until marriage. In this article, I assess the ethical and legal challenges raised by this request, both for the individual physician and for the health care system. I argue that performing hymenoplasty is not always an unethical practice and that, under certain conditions, it should be provided by the health care system.

Changing the conversation about brain death

We seek to change the conversation about brain death by highlighting the distinction between brain death as a biological concept versus brain death as a legal status. The fact that brain death does not cohere with any biologically plausible definition of death has been known for decades. Nevertheless, this fact has not threatened the acceptance of brain death as a legal status that permits individuals to be treated as if they are dead. The similarities between "legally dead" and "legally blind" demonstrate how we may legitimately choose bright-line legal definitions that do not cohere with biological reality. Not only does this distinction bring conceptual coherence to the conversation about brain death, but it has practical implications as well. Once brain death is recognized as a social construction not grounded in biological reality, we create the possibility of changing the social construction in ways that may better serve both organ donors and recipients alike.

Conscience in health care and the definitions of death

Brain death or neurologic death has gradually become recognized as human death over the past decades worldwide. Nevertheless, in Japan, the New York State, and the State of New Jersey, one can be exempt from death determination based on neurologic criteria even in the state of brain death. In Japan, the 1997 Act on Organ Transplantation legalized brain death determination exclusively when organs were to be procured from brain-dead patients. Even after the 2009 revision, the default definition of death continued to be cardio-pulmonary criteria, despite the criticism. The cases of Japan and the United States provide a good reference as social experiments of appreciating conscientious or religio-cultural dimensions in health care. This text theoretically examines the 1997 Act on Organ Transplantation of Japan and its 2009 revision, presenting some characteristics of Japan’s case compared to American cases and the implications its approach has for the rest of the world. This is an example in which a foreign idea that did not receive widespread support from Japanese citizens was transformed to fit the religio-cultural landscape.

Medical ethics in pediatric critical care

Ethically charged situations are common in pediatric critical care. Most situations can be managed with minimal controversy within the medical team or between the team and patients/families. Familiarity with institutional resources, such as hospital ethics committees, and national guidelines, such as publications from the American Academy of Pediatrics, American Medical Association, or Society of Critical Care Medicine, are an essential part of the toolkit of any intensivist. Open discussion with colleagues and within the multidisciplinary team can also ensure that when difficult situations arise, they are addressed in a proactive, evidence-based, and collegial manner.

The definition and criterion of death

The definition and criterion of death have been rendered ambiguous by developments in organ support technology, particularly the positive-pressure ventilator and vasopressor medications, that uncouple the unitary loss of vital functions in death and create cases in which the brain has been destroyed while circulation and ventilation can be supported. Developing a biophilosophic analysis of the meaning of death before physicians can declare it requires four sequential steps: (1) agreement on the paradigm conditions that frame the analysis and clarify the task; (2) identifying the definition of death, which makes explicit the meaning of death that is accepted in our consensual usage of the term but that has become obscured by technology; (3) identifying the criterion of death that shows that the definition has been fulfilled, and that can be incorporated into a death statute; and (4) devising bedside tests of death for physicians to perform to satisfy the criterion. Although there is a strong consensus on death determination medical standards in countries around the world that has been enshrined into laws, and accepted by most societies and religions, there remains an active dispute among scholars on the precise definition and criterion of death.

Deadly pluralism? Why death-concept, death-definition, death-criterion and death-test pluralism should be allowed, even though it creates some problems

Death concept, death definition, death criterion and death test pluralism has been described by some as a problematic approach. Others have claimed it to be a promising way forward within modern pluralistic societies. This article describes the New Jersey Death Definition Law and the Japanese Transplantation Law. Both of these laws allow for more than one death concept within a single legal system. The article discusses a philosophical basis for these laws starting from John Rawls' understanding of comprehensive doctrines, reasonable pluralism and overlapping consensus. It argues for the view that a certain legal pluralism in areas of disputed metaphysical, philosophical and/or religious questions should be allowed, as long as the disputed questions concern the individual and the resulting policy, law or acts based on the policy/law, do not harm the lives of other individuals to an intolerable extent. However, while this death concept, death definition, death criterion and death test pluralism solves some problems, it creates others.

Self and other in global bioethics: critical hermeneutics and the example of different death concepts

Our approach to global bioethics will depend, among other things, on how we answer the questions whether global bioethics is possible and whether it, if it is possible, is desirable. Our approach to global bioethics will also vary depending on whether we believe that the required bioethical deliberation should take as its principal point of departure that which we have in common or that which we have in common and that on which we differ. The aim of this article is to elaborate a theoretical underpinning for a bioethics that acknowledges the diversity of traditions and experiences without leading to relativism. The theoretical underpinning will be elaborated through an exploration of the concepts of sameness, otherness, self and other, and through a discussion of the conditions for understanding and critical reflection. Furthermore, the article discusses whether the principle of respect for the other as both the same and different can function as the normative core of this global bioethics. The article also discusses the New Jersey Death Definition Law and the Japanese Transplantation Law. These laws are helpful in order to highlight possible implications of the principle of respect for the other as both the same and different. Both of these laws open the door to more than one concept of death within one and the same legal system. Both of them relate preference for a particular concept of death to religious and/or cultural beliefs.

Brain death - too flawed to endure, too ingrained to abandon

The concept of brain death has become deeply ingrained in our health care system. It serves as the justification for the removal of vital organs like the heart and liver from patients who still have circulation and respiration while these organs maintain viability. On close examination, however, the concept is seen as incoherent and counterintuitive to our understandings of death. In order to abandon the concept of brain death and yet retain our practices in organ transplantation, we need to either change the definition of death or no longer maintain a commitment to the dead donor rule, which is an implicit prohibition against removing vital organs from individuals before they are declared dead. After exploring these two options, the author argues that while new definitions of death are problematic, alternatives to the dead donor rule are both ethically justifiable and potentially palatable to the public. Even so, the author concludes that neither of these approaches is likely to be adopted and that resolution will most probably come when technological advances in immunology simply make the concept of brain death obsolete.

Brain Death and Withdrawal of Support

The definition of death has evolved to include the concept of brain death. The brainstem is an indispensable central integrative unit for all vital functions. The clinical criteria for brain death consist of the demonstration of the absence of function of the brainstem. Confirmatory testing, which mostly evaluates higher clinical function, is usually not required for the diagnosis of brain death.

The declaration of death and the withdrawal of care in the neurologic patient

Intensive care technologies have led to an increase in patients who are neurologically devastated and deceased. The practical, moral, and ethical situations encountered can be varied and challenging to manage. Decisions and discussions surrounding withdrawal of care, death by neurologic criteria, and organ donation require significant knowledge of the prognosis, ancillary testing, and definitions of these processes. Experience and skill are often required on the part of physicians and staff to guide families through these most difficult of circumstances.

The concept and practice of brain death

Brain death, the colloquial term for the determination of human death by showing the irreversible cessation of the clinical functions of the brain, has been practiced since the 1960s and is growing in acceptance throughout the world. Of the three concepts of brain death--the whole-brain formulation, the brain stem formulation, and the higher brain formulation--the whole-brain formulation is accepted and practiced most widely. There is a rigorous conceptual basis for regarding whole-brain death as human death based on the biophilosophical concept of the loss of the organism as a whole. The diagnosis of brain death is primarily a clinical determination but laboratory tests showing the cessation of intracranial blood flow can be used to confirm the clinical diagnosis in cases in which the clinical tests cannot be fully performed or correctly interpreted. Because of evidence that some physicians fail to perform or record brain death tests properly, it is desirable to require a confirmatory test when inadequately experienced physicians conduct brain death determinations. The world's principal religions accept brain death with a few exceptions. Several scholars continue to reject brain death on conceptual grounds and urge that human death determination be based on the irreversible cessation of circulation. But despite the force of their arguments they have neither persuaded any jurisdictions to abandon brain death statutes nor convinced medical groups to change clinical practice guidelines. Other scholars who, on more pragmatic grounds, have called for the abandonment of brain death as an anachronism or an unnecessary prerequisite for multi-organ procurement, similarly have not convinced public policy makers to withdraw the dead-donor rule. Despite a few residual areas of controversy, brain death is a durable concept that has been accepted well and has formed the basis of successful public policy in diverse societies throughout the world.

Ethical issues in the perioperative management of neurologic patients

The perioperative care of patients who have diseases of the nervous system provides the setting for challenging ethical issues. In the preoperative period, these issues include obtaining informed consent for surgery and its complications, surrogate decision making for the neurologically incapacitated patient, the use of advance directives for medical care, and the temporary suspension of do-not-resuscitate orders during the perioperative period. During postoperative care, ethical issues include establishing and communicating prognosis in patients who are brain damaged, a trial of therapy when prognosis remains uncertain, surrogate consent and refusal of life-sustaining therapy in the neurologically impaired patient, and the management of brain death.

Medical futility

"Medical futility" may be provisionally defined as a medical conclusion that a therapy is of no value to a patient and should not be prescribed. The current debate about medical futility is one of the most important and contentious in medical ethics. Proponents believe that allowing physicians to determine and withhold futile therapies can be done without disturbing the current paradigm of medical ethics which respects patient autonomy with regard to informed consent and the right to refuse treatment. Others conclude that medical futility is simply an unacceptable form of medical paternalism. Some adopt a middle position that doctors can predict medical futility; they believe that attempting this does not necessarily justify imposing decisions to forgo life-sustaining therapy on patients. Regardless of its policy outcome, this important debate is leading to a reexamination of the nature of a patient's entitlement to health care and of the ends of medicine. It has two aspects. A definitional debate examines the concept of medical futility and its derived clinical criteria. A second debate considers the nature of the authority and procedures to act on the conclusion that a therapy is futile by withholding or withdrawing treatment.

Foregoing life-sustaining treatment in an Israeli ICU

OBJECTIVE

To determine whether physicians in Israel withhold and/or withdraw life-sustaining treatments.

DESIGN

A prospective, descriptive study of consecutively admitted patients. Patients were prospectively evaluated for diagnoses, types and reasons for foregoing life-sustaining treatment, mortality and times from foregoing therapy until mortality.

SETTING

A general intensive care unit of a university hospital in Israel.

RESULTS

Foregoing life-sustaining treatment occurred in 52 (13.5%) of 385 patients admitted and 5 (1%) had cardiopulmonary resuscitation. Withholding therapy occurred in 48 patients. Four patients with brain death had all treatments withdrawn. No patient had antibiotics, nutrition or fluids withheld or withdrawn. Time from foregoing therapy until death was 2.9 +/- 0.6 days. Thirty-one of 48 (65%) patients who had therapy withheld died within 48 h.

CONCLUSIONS

Withholding life-prolonging treatments is common in an Israeli intensive care unit whereas withdrawing therapy is limited to brain dead patients. Terminal patients die soon after withholding, even if the therapy is not withdrawn. Withholding treatments should be an option for patients and professionals who object to withdrawing therapies.

Religious advance directives: the convergence of law, religion, medicine, and public health

Because of the deep interpersonal significance of decisions made at the end of life, it is not surprising that religion has played an important role in patient and family decision making. Specific religious concerns about death and dying have led to religious advance directives. Advance directives offer a case study of models of interaction between religious communities and secular institutions. This paper examines why such directives have been created and how they may affect health care decisions. An analysis of their strengths and weaknesses concludes that specific religious instructions are unnecessary in written directives and may undermine both the religious and health care goals of patients.