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Law And Death Definitions Notes

Updated Law And Death Definitions Notes

Medical Law Notes

Medical Law

Approximately 1067 pages

Medical Law notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the LLB medical law cases and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Hong Kong or Malaysia (University of London).

These were the best Medical Law notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through forty-eight LLB samples from outstanding law students with the highest...

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Law and Death Definitions

What is Death?

  • The legal definition of death

    • Bland

      • Lords Browne Wilkinson, Goff and Keith:

        • Brain stem death is the definition of death for the purposes of medicine and law

          • Since B is suffering from PVS and is not brain stem dead, he is therefore alive.

    • Re C (A Minor) (Medical Treatment)

      • This probably therefore means that the legal definition of death will coincide with the medical one,

        • whatever the parents views, religious or otherwise, are on the subject.

  • Alternative Definitions

    • Brain stem death

      • DoH’s Code of Practice:

        • Three requirements under

          • 1. The coma is not due to reversible causes, such as drug overdose

          • 2. It must be demonstrated that the several components of the brain stem have been permanently destroyed

            • This significantly includes the respiratory centre

          • 3. It must be proved that the patient is unable to breathe spontaneously

        • The code suggests that two medical practitioners registered for more than five years and are specialists in the field should agree there is brain death, before pronouncing it.

  • Brain stem death

    • Caudal lowest part of brain connecting spinal cord with rest of brain

    • DOH: on diagnosis of brain stem death

      • Irreversible causes

      • Several component permanently destroyed

      • Unable to breathe spontaneously

      • 2 experts agree

    • Why this?

      • Shewmon: Loss of integrated whole – if you lose stem then body and brain no longer works together

      • Lizza: if anything entails one’s death, decapitation certainly does, despite whatever artificial support might be given to sustain one’s decapitated body as an integrated organism

        • Thus if we are willing to accept decapitation as death, we should also be willing to accept physiological decapitation (total brain failure) as death

    • Objections

      • Miller and Truog:

        • Chicken might still run around when decapitated, but we know its dead really.

        • How about the pregnant dead?

          • Fallen into irreversible coma, but kept alive so can give birth

          • Does this make her just like a foetal container?

            • Doctors emphasised that she was keen to have the child and H wanted the child as well.

            • But if someone still able to produce a child but brain stem dead, doesn’t this mean they can some kind of function none-the-less?

      • Joffe:

        • A person in a permanently unconscious state (vegetative) is not considered dead in any society

          • Burial cremation or organ donation w/o anaesthetic in these patients has been unthinkable

          • This suggests that loss of cerebral function and consciousness is not just what we mean by the word death.

      • Glannon:

        • Brain is elevated to being the essential organ of the person, while person and body is made up of much more than this

        • We are not just our brains but subjects whose ordered and disordered states of mind

          • are the products of continuous interaction between and among the brain, body and the social and natural world

        • The brain is not the sole cause of the mind, but a relational organ that shapes and is shaped by the mind.

      • Veatch:

        • Possible to conceive of a time when you can have a brain transplant – thus you would be classed as dead when patently you’re alive.

  • The end of breathing

    • At one time, someone was dead once their heart had stopped pumping and their breathing ceased

      • However, medical advances have made this definition problematic – the stopping of the heart does not lead to an end of brain activity

      • Even if respiration has stopped, medical intervention can save someone from the “door of death”

    • Truog: but the layperson on the street would see the stopping of the heart as the market of death, since the heart is the symbol of life

      • So even if the notion of the beating heart as the key to life is not logically or philosophically justifiable, it is intuitively the essential mark of life

  • The end of the organism

    • If the body is a working organism, with various functions, then death might come where the organism ceases to achieve those functions

      • These might include ventilation, circulation, nutrition etc.

      • Once these can no longer be performed, the body should be said to have died.

    • BUT this treats the body like machinery – it does not take account of what people regard as most important about their bodies – feelings, thoughts, emotions etc.

  • Death of every cell

    • Purification would signal death

    • Probably would be considered quite unpleasant for most people

  • Desoulment

    • I.e. Departure of the soul for some religious people or believers in a soul

      • However, even if we accept desoulment, it’s not very apparent to us as humans when this occurs

        • It cannot therefore readily provide a basis of a legal or medical test.

  • Death as a process?

    • Death might not be a moment in time, but better seen as a process

      • Only rarely will there be a clear moment of death – e.g. blown apart in an explosion

      • But where death is “natural” there is no easy cut off point

    • Problems

      • Aries: Not very practical

        • Death in the hospital is no longer the occasion of a ritual ceremony, over which the dying person presides amidst his relatives and friends

        • It is not a technical phenomenon, obtained by a cessation of care – indeed, they may already have lost consciousness

          • Death being dissected means its not longer clear which point is the “real” death

            • no-one has the strength of patience to wait over a period of weeks for something which has lost part of its meaning

Could the law allow us to choose what we consider the definition of our death should be?

  • The premise

    • Bagheri: We have different theological, spiritual, political and medical beliefs about this, so perhaps we should let each person decide what they would like their definition of death to be

    • Problem = needs to be a fallback position – not everyone has developed their own concept of when death occurs

      • Also, society might not accept some definitions – e.g. “I am dead once I develop dementia”

      • Herring: Perhaps there should be a range of options available for people to pick from the menu of...

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