Journal ofmedical ethics, 1987, 13, 21-22 J Med Ethics: first published as 10.1136/jme.13.1.21 on 1 March 1987. Downloaded from

Debate More fiddling with the definition of death?

John M Stanley Lawrence University, USA

In the last paragraph of his otherwise excellent article the persistent vegetative state is that I have not pursued 'Why Let People Die?' Journal of Medical Ethics, the possibilities ofa "Sorites argument" once this move June, 1986, Grant Gillett, New Zealand-trained is made' makes it clear that he is seriously neurosurgeon and Oxford philosopher, raises several considering the explicit extension of the definition of important questions that he fails to resolve and that death to include decortication. Gillett's position is, require further illumination. thus, closer to that of those who want to argue for Gillett claims that he is not 'fiddling about' with the neocortical death as the relevant death criterion (for definition of death, but it seems clear both from the example, H K Beecher (1)) than it is to those who want tone and the direction of his argument that that is to hold to brain stem death as the only justifiable death precisely what he is intending. Indeed, the very criterion (for example, B Jennett (2, 3) and C Pallis, sentence that begins with the disclaimer that he is not, (4)). ends with what seems, from an ethical perspective, to In his final extraordinary sentence Gillett raises a be intended as a working definition ofdeath: '. .. this host of troublesome problems he has not prepared uscopyright. person is no longer, in any ethically interesting sense, for. He seems to be saying that this body which is, 'in alive'. every ethical sense, no longer alive,' is really to be Gillett distinguishes between the body of his former considered dead at least in the sense that whatever the patient and the person who previously was his patient. next of kin wanted to do with it he or she could. What The person is no longer 'here'. 'Jim is not with us are these 'other decisions about his body' that can now be made by the next of kin? Are there really to be no anymore'. Jim's body may be in some biological sense http://jme.bmj.com/ alive, but what we really care about protecting, both in more limits on our behavior with respect to it than the our laws and in our ethical arguments going back to limits that now obtain for the treatment of cadavers? Locke, is the person. The body of such a 'former What if the next of kin wanted to use the kidneys or person' may, however, be not only inconveniently but heart of this body that 'is no longer in any ethically stubbornly alive - at least in any reasonable biological interesting sense alive' for another member of the definition ofthat term. That body may be helpless and family who needed a life-saving transplant? Would that almost totally non-sentient. It may be, ethically decision be justified? What if the next of kin decides speaking, indistinguishable from a cadaver, but, that he would like to keep that body (in which the on September 25, 2021 by guest. Protected biologically speaking, it is notyet a cadaver; it is alive, former patient no longer has any interest) 'alive' for as and, unfortunately, may remain so for some time. And long as technically possible as a 'living' organ bank for this is precisely what Gillett does not remind himselfor possible future family emergencies? Could that his readers of at this point: the body of the former decision be justified? Could a death certificate be patient is technically alive. It seems to me that this is issued with all of its legal implications, including where Gillett fails us. He must either maintain the inheritance of property? distinction between a live body that is no longer In short, it seems that Gillett has failed to be rigorous capable of any person-qualifying functions and a in his distinctions precisely at that point where it is so cadaver that is biologically dead or he must admit that important that we be rigorous. Either we are going to he is 'fiddling about with the definition of death' and argue that we should extend the definition of death to work out the consequences of his proposed definition. include decortication or we are not. Ifwe are, we must Indeed, Gillett's next sentence: 'The reason that I face squarely a host of implications that seem to run demur from saying that we should extend the counter to current clinical practice and most current definition of death to a state of irreversible coma or to public sentiment, including the implication that all those patients in nursing homes in a persistent vegetative state are ethically indistinguishable from Key words cadavers. Brain death; persistent vegetative state; concept of the One can agree with Gillett's sensitive and careful person. probing of the ethical dilemma presented to him as a 22 M Stanley John J Med Ethics: first published as 10.1136/jme.13.1.21 on 1 March 1987. Downloaded from practising clinician. One can agree with him that a an end to our responsibility to the biological remains. decorticate body is not a person in the sense that that The management oftheir care presents us with terribly concept has been used traditionally. One can agree that difficult ethical challenges, but resolving these it makes good ethical sense to say to the family 'Jim is challenges by extending the definition of death to not with us any more'. One can certainly agree that 'an include the persistent vegetative state is just not on - intensive resuscitation and support regime' for such whatever we may discover from an exhaustive patients is not ethically indicated even if it could be examination of the Sorites paradox. Indeed it would medically 'successful'. (Some have even gone further, seem that we are stuck, for the time being at least, with suggesting that prolonging the lives of patients in a an intermediate moral category: a decorticate body persistent vegetative state may be ethically wrong which must be understood unequivocally as not yet because it is actually harming them - essentially dead, although still not a live person 'in any ethically condemning them to 'a fate worse than death' (4). But interesting sense'. The questions of what can be done it is not so easy to agree that the way to solve these to these live human bodies who are no longerpersons, of terribly difficult problems is to attempt to define them who makes the decisions regarding their treatment, of away. In fact, I cannot agree with that at all. what procedures medical practice should insist on for There are several compelling reasons, both the decision-making process, and of what role, if any, theoretical and practical, for not fiddling further with the law should play in these issues are all extremely the definition ofdeath at this time. First, there is, at the important questions to which society and the medical present time, no simple operationally sound test for the profession are going to have to address their very best persistent vegetative state. There are tests for brain thinking, but they cannot be adequately addressed by stem death that properly trained emergency room defining this perplexing intermediate category out of doctors and even some paramedics can administer existence. without complications, but the determination of It is indeed instructive to find a neurosurgeon who is irreversible decortication is far less clear cut and also a philosopher addressing these questions and I normally requires careful and long-term clinical commend Mr Gillett for raising them and for the examination (2, 3, 4, 6). More importantly, there is a helpful and sensitive reasoning up to the last page ofhis

certainty about the non-reversibility of brain stem article, but the very difficult questions he raises on that copyright. death that does not obtain for decortication (1). No one last page, indeed in the last paragraph of that article, ever 'recovers' from a dead brain stem. That is demand more careful examination by both the precisely why, as Jennett and Pallis have pointed out philosopher and the brain surgeon ifsuch address is to repeatedly, brain stem death is such a reliable be illuminating. definition of death. While recovery from a persistent John M Stanley PhD is Edward F Mielke Professor of vegetative state after longer than one month is rare and Ethics in Medicine, Science and Society, Lawrence even rarer after a longer peiod of time, the http://jme.bmj.com/ irreversibility of the condition has not reached and is University, USA. not likely to reach the level of certainty of brain stem death (3, 4, 5, 6, 7). Finally, however clear it may be that their lives as persons are over, patients in a persistent vegetative state are still, biologically References speaking, very much alive. As C Pallis has pointed out (1) Beecher H K. The new definition of death, some in correspondence to the British Medical Journal: opposing views. Unpublished paper summarised in 'These unfortunate individuals breathe and swallow Veatch R. Death, dying, and the biological revolution. New on September 25, 2021 by guest. Protected spontaneously and may grimace or withdraw their Haven: Yale University Press, 1976: 38-42. (2) Jennett B. Diagnosis of brain death. Journal of medical limbs in response to painful stimuli'. They may, Pallis ethics 1977; 4-5. speculates, even have the capacity for some (3) Jennett B, Plum F. Pesistent vegetative state after brain consciousness though that capacity will not likely be damage. Lancet 1972; I: 734. 'endowed with any (hemispherically determined) (4) Pallis C. An A B C of brain stem death. London: British content'. That the capacity for consciousness is medicaljournal, 1983. theoretically intact and could be endowed with (5) Pallis C. Whole-brain death reconsidered. Journal of fragments of lingering sentience causes Pallis to medical ethics 1983; 9: 32-37. comment that a 'fate worse than death' may be a far (6) Campbell A G M. Children in a persistent vegetative more accurate description of patients in this state. British medicaljournal 1984; 289: 1022-1023. unfortunate state than 'those who sketched this vivid (7) Feinberg W M, Ferry P C. A fate worse than death: the persistent vegetative state in childhood. Americanjournal image may have imagined' (8). ofthe disabled child 1984; 138: 128-30. Patients in a persistent vegetative state may not be (8) Pallis C. Correspondence. British medical journal 1984; persons, in an ethical sense, but that fact does not put 289: 1307.