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Q&A on brain death with John D. Banja, PhD
[Editor's note: Dr. Banja is a Professor in the Department of Rehabilitation Medicine; a Medical Ethicist at the Center for Ethics; and the Director of the Section on Ethics in Research at Emory University in Atlanta. E-mail: firstname.lastname@example.org.]
Q: You've said about language — "Reality is internal to language." — and that language sort of gives shape to the activity.
A: If you walked around Atlanta and went up to people and said, "Do you know that reality is internal to language?" they'd probably look at you like you just escaped from an asylum. But if you get the idea of how important words are, you start seeing why definitions are just so incredibly important and how they shape behavior.
Definitions control our understanding — like is waterboarding torture or not? Well, what is torture? Is capital punishment cruel and unusual? Well, how do you define "cruel and unusual"? You can see why those definitions are handed down by very authoritative groups, like legislatures, or courts.
Q: And those definitions vary from culture to culture, too.
A: They do. In most of Europe, capital punishment is cruel and unusual. It's not allowed. By the way, we suspended capital punishment in the United States in the early 1970s but resumed it in 1977. And someday, perhaps in the case of abortion, it will be the Supreme Court that might change its current opinion as to when a fetus becomes a "person."
Q: So much seems to come back to abortion, stem cells….
A: Right. Because the Supreme Court in 1973 defined viability as the moment that a fetus becomes constitutionally protected, or has moral status-in other words, has to be protected. So, a future Supreme Court might overturn that definition in favor of a different one for conferring moral status. They might decide that the moment of conception is when an embryo becomes protected.
For some people, the person in the persistent vegetative state — and it's difficult to know how you want to say this — will "lose moral status." So, does that mean they're dead or not? Not necessarily, but it can mean, for example, that they can no longer make claims on society. If they do lose moral status, if that is the way you want to define it, then they can no longer make the same claims on society that you and I can.
There are some ethicists who would say that just the permanent loss of consciousness could be enough to qualify a person as dead. And then, of course, there's the brain death criteria. And so now, in contrast to the persistent vegetative state where the brain stem is usually somewhat preserved, the whole brain is involved in brain death, and that's the law of the land in our 50 states and the District of Columbia — and that is recognized as death.
But then there are the folks who believe that if you have biological functioning below your neck, such as occurs with people who are deemed brain dead, that's enough to say that these people are alive.
So, it varies from moral sensibility to moral sensibility. Let's come back, though, to the two definitions of death. The traditional one, which is the cessation of respiration and circulation, seems rather inarguable. Most reasonable people would say, yes, if you've stopped breathing and your heart has stopped beating and there's no way we can start them back up again, well, this person is dead. And that's the historical, traditional, and customary understanding of death.
But now we've got the brain death criteria, which look at that functioning of the whole brain. What they're saying is it doesn't matter that you have biological functioning going down below your shoulders. If that entire brain has ceased active functioning — of the entire brain — you're dead.
And of course, what complicates the situation with people who are brain dead is that they're on a ventilator, and therefore, the ventilator does their breathing. And as long as it keeps doing that — they can have a heartbeat, and therefore their organs are perfused. So, their biological activity will continue.
And also, let me say that if you took a brain dead person off that ventilator, he or she would stop breathing very quickly — within minutes — maybe hours at the most.
Of course, once they stop breathing, then within about 5 minutes all of that biological activity going on in their body would stop too. Then they would inarguably be dead. So, with that brain-dead person, everything depends on that ventilator for him or her.
Q: How would you address brain death in the Motl Brody case [in Washington, DC] (For story, see the January 2009 issue of Medical Ethics Advisor, page 4) You and I discussed this case, and I spoke to the head of an ethics committee at one hospital where they generally try to address the patient within their religious tradition and their religious beliefs.
A: I have heard of at least one hospital actually sending a brain-dead patient home at the insistence of the family. They kind of fashioned a makeshift ICU in the individual's home. And I've heard of that patient, who'd been diagnosed as brain dead, living for a couple of weeks.
Q: What are the challenges to brain death determinations?
A: The biggest challenge is this idea that the brain death criteria don't satisfy the brain death definition. So, think of all the criteria as the ones that are established by all the various neurological tests, where the neurologist will shine a light into the patient's pupil, but they don't move. Reflex tests, where they'll get a pencil or some object and they'll push it between your knuckles and see if you have any tendency to withdraw or flex your hands.
They'll squirt ice water into your ear canal and see if your eyes deviate toward the ear where they ice water is squirted into.
But the thing is that a patient can fit all of these tests — all of these neurological tests — but he or she might still have pockets of electrical activity in his or her brain. So, therefore, the definition which says all your brain has to be dead — no activity going on in [the brain] at all — is really not met even if the individual satisfies the criteria.
So there's a flaw between the criteria and the definition.
Q: So, what needs to happen? What needs to change?
A: One thing you could do is to change the definition [of brain death]. You could say that brain death will be denoted by the cessation of all significant brain activity, with the exception of pockets of electrical activity that really do not contribute to any significant human functioning.
Of course, you're essentially asking a question that a court or a legislature or a medical society would convene its best minds around. So, one thing is to change the definition. Another thing is to improve the tests, such that the tests really do deliver on the definition [that is] if you pass all of the tests, there won't be any pockets of electrical activity.
You know, another idea, I think, is to simply say that a person who meets all the brain death tests is dead. And forget about the definition — that it's got to be the cessation of functioning of the entire brain, and just simply say — the individual who meets all of these test criteria will for all legal purposes be considered to be deceased.
Q: Why haven't these questions been resolved in the last — what, 30+ year since the advent of ventilators and other technology that allows physicians to prolong life? Why haven't these questions worked themselves out after 30 years?
A: That's a good question. People have been discussing all this for the last 10 years at least. So, your question is very well taken, because we know the criteria don't satisfy the definition very well. How come we haven't looked into it or done anything about it?
I would think that the first reason why is because we want to continue our organ transplant programs in the United States. And because of that — and I think because we have this moral intuition that a person who meets all the brain death criteria — this sounds horrible, but — they're as "good as dead." I mean, they are on that cusp, or that penumbra, between life and death, and we know…they're not going to recover any kind of human functioning.
All we are doing is maintaining this biological activity in their bodies by keeping them on a ventilator. So, all of our intuitions, our sensibilities — for most people — really incline toward saying this is unreasonable keeping this individual alive on a ventilator. He or she is as good as dead.
They are a living corpse, and the reasonable thing to do — the clinically reasonable, the economically reasonable, even the morally reasonable thing to do — would be to take them off this ventilator. . . If they meet the brain death criteria, what the doctor will do is pronounce them dead, and then take them off the ventilator.
So, I think it's really our interest in maintaining organ transplant programs — and also our interest in keeping the ICU beds populated by folks who "reasonably" need them. And I think we believe that people who are brain dead do not have a reasonable need for this kind of allocation of intensive care services.
Q: I believe we've talked about that before, i.e., the allocation of resources to those who most need it.
A: That's right; however, be very careful with that one because I have known of situations wherein that justification was brought up — that there are other people who could make better use of these health care resources, and the family exploded because to them, that claim, "There are others who can make better use of these resources" sounds like blatant discrimination.
[Dr. Banja presented an audio conference for AHC Media LLC on April 7, 2009, on the topic: "Are Brain Dead Patients Really Dead?"]