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Canada Updates Death Determination Standards. Is America Next?

Heidi Klessig MD. Originally published on Heartland Daily News on July 24th 2023

The Canadian Journal of Anesthesia has just published new criteria for determining death, which are based on a “higher mind” definition of death rather than on death as a biological occurrence. This means that heart-beating people who are unresponsive, dependent on a ventilator, and lacking certain protective brainstem reflexes will be declared legally “dead”.

Death in Canada is now defined as the “Permanent cessation of brain function”. This definition has three parts. First, “Permanent”, the guidelines explain, means that brain function is lost, will not resume spontaneously (an educated guess), and will not be restored through intervention. This means that you can be declared legally dead just because doctors are not going to take the trouble to intervene on your behalf.

Second, the guidelines require the complete absence of any form of consciousness, defined as wakefulness or awareness. However, there are no medical tests for consciousness.

Medical examinations can only test whether the patient is willing and able to respond, not whether they are inwardly conscious. Zack Dunlap, after recovering from a diagnosis of “brain death”, reported:

The next thing I remember was laying in the hospital bed, not being able to move, breathe—couldn’t do anything, on a ventilator. I heard someone say, ‘I’m sorry, he’s brain dead, he’s passing away.’ And there’s nothing I could do, just get mad. I couldn’t do anything—to sign—at all…I tried to scream, tried to move, just got extremely angry.

Last, the Canadian guidelines require that certain brainstem reflexes be absent, including the ability to breathe independently. They go on to say that residual brain cell activity not associated with the presence of consciousness does not preclude death determination. So, people with electrical activity on their EEG and people who have continued functioning of parts of the brain above the brainstem will be declared dead as well.

Conflict of Interest

Interestingly, the guidelines were written by a multidisciplinary team which included not only health care professionals, but also organ donation organizations. In his encomium accompanying the guidelines, Dr. David M. Greer writes:

…the inclusion of Organ Donation Organizations (ODO) is unique. In many societal guidelines, there is a tendency to shy away from any mention of organ donation, as this could lead to a misconception that organ donation is the primary motivation for death determination. But I applaud the authors for their inclusion of ODOs in this guideline, and feel this is long overdue.

American Law

Greer goes on to say that the Canadian guidelines should serve as a model for the rest of the world. And indeed, the American Academy of Neurology has petitioned the Uniform Law Commission (ULC) to revise the legal definition of death here in the United States as well. At the ULC annual meeting taking place in Honolulu from July 21 to July 27, proposed changes which are similar to the Canadian guidelines are being presented.

The ULC drafting committee working on revising the Uniform Determination of Death Act (UDDA) is offering two options to the annual meeting for discussion. The first option is the same as the current definition of death under the UDDA.

And individual is dead if the individual has sustained:

Option 1

  1. Irreversible cessation of circulatory and respiratory functions; or

  2. Irreversible cessation of all functions of the entire brain, including the brain stem.

Option 2

  1. Permanent cessation of circulatory and respiratory functions; or

  2. Permanent

a. Coma

b. Cessation of spontaneous respiratory functions, and

c. Loss of brainstem reflexes

As you can see, the second option is basically a reiteration of the Canadian guidelines. The drafting committee was unable to come to a consensus between options one and two, with strongly held convictions being expressed by commissioners on both sides. Thus, it was decided to bring both options to the ULC annual meeting.

Ethical Concerns

The proposed revision to the UDDA has been opposed by the Association of American Physicians and Surgeons, the Catholic Medical Association (which has written to the ULC twice), as well as the Christian Medical and Dental Association. The National Catholic Bioethics Center wrote, “The basis for our objection is that the proposed revision will allow patients who exhibit partial brain function to be declared “legally dead” when they are not biologically dead.”

Of significant concern is replacing the term ‘irreversible’ with ‘permanent.’ A loss of a function is ‘irreversible’ if that function cannot possibly be regained spontaneously or restored through medical intervention. This is an appropriate standard. In contrast, a loss of function can be said to be ‘permanent’ if that function is not either spontaneously restarted or restored on its own or is not restarted or restored because of a lack of medical intervention. If medical personnel do not attempt resuscitation or restorative measures, then a condition is ‘permanent.’ This new definition will lead to more overly-quick judgments from medical staff and steer patients to receive less care—or no care at all—leading to a premature death.

At the last meeting of the ULC drafting committee, chairperson the Honorable Sam Thumma acknowledged that now may not be the time for a revision of the UDDA, as the comments the committee has received are heartfelt and almost impossible to reconcile.

Public trust in the American medical system is already at an all-time low. Now is not the time to follow Canada’s lead in loosening the criteria for death. Now is not the time to allow doctors to declare people with partial brain function “legally dead”.

Dr. Heidi Klessig is a retired anesthesiologist and an observer to the Uniform Law Commission as they meet to consider a revision of the Uniform Determination of Death Act.

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