The Covid-19 pandemic has led to severe shortages of many essential goods and services, from hand sanitizers and N-95 masks to ICU beds and ventilators. Although rationing is not unprecedented, never before has the American public been faced with the prospect of having to ration medical goods and services on this scale.
Despite its familiarity and widespread acceptance, the concept of “brain death” remains incoherent in theory and confused in practice. Moreover, the only purpose served by the concept is to facilitate the procurement of transplantable organs. By abandoning the concept of brain death and adopting different criteria for organ procurement, we may be able to increase both the supply of transplantable organs and clarity in our understanding of 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. (shrink)
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. (shrink)
Accepted medical practice already violates the dead donor rule. Explicitly jettisoning the rule—allowing vital organs to be extracted, under certain conditions, from living patients—is a radical change only at the conceptual level. But it would expand the pools of eligible organ donors.
The concept of brain death was recently described as being “at once well settled and persistently unresolved.” Every day, in the United States and around the world, physicians diagnose patients as brain dead, and then proceed to transplant organs from these patients into others in need. Yet as well settled as this practice has become, brain death continues to be the focus of controversy, with two journals in bioethics dedicating major sections to the topic within the last two years.By way (...) of background, the Uniform Determination of Death Act states that “[a]n individual who has sustained either: irreversible cessation of circulatory and respiratory functions, or irreversible cessation of all functions of the entire brain, including the brain stem, is dead. A determination of death must be made in accordance with accepted medical standards.” In other words, death can be defined by either cardiorespiratory or neurological criteria, with “brain death” representing the loss of all brain function. This standard, or closely related variants, has become the accepted approach throughout the United States and in many parts of the world. (shrink)
Conventional medical ethics and the law draw a bright line distinguishing the permitted practice of withdrawing life-sustaining treatment from the forbidden practice of active euthanasia by means of a lethal injection. When clinicians justifiably withdraw life-sustaining treatment, they allow patients to die but do not cause, intend, or have moral responsibility for, the patient's death. In contrast, physicians unjustifiably kill patients whenever they intentionally administer a lethal dose of medication. We argue that the differential moral assessment of these two practices (...) is based on a series of moral fictions – motivated false beliefs that erroneously characterize withdrawing life-sustaining treatment in order to bring accepted end-of-life practices in line with the prevailing moral norm that doctors must never kill patients. When these moral fictions are exposed, it becomes apparent that conventional medical ethics relating to end-of-life decisions is radically mistaken. (shrink)
Over the past several decades, medical ethics has gained a solid foothold in medical education and is now a required course in most medical schools. Although the field of medical ethics is by nature eclectic, moral philosophy has played a dominant role in defining both the content of what is taught and the methodology for reasoning about ethical dilemmas. Most educators largely rely on the case‐based method for teaching ethics, grounding the ethical reasoning in an amalgam of theories drawn from (...) moral philosophy, including consequentialism, deontology, and principlism.In this article we hope to make a case for augmenting the focus of education in medical ethics. We propose complementing the traditional approach to medical ethics with a more embedded approach, one that has been described by others as “microethics,” the ethics of everyday clinical practice. (shrink)
Savulescu and colleagues have provided interesting insights into how the UK public view the ‘best interests’ of children like Charlie Gard. But is best interests the right standard for evaluating these types of cases? In the USA, both clinical decisions and legal judgments tend to follow the ‘harm principle’, which holds that parental choices for their children should prevail unless their decisions subject the child to avoidable harm. The case of Charlie Gard, and others like it, show how the USA (...) and the UK have strikingly different approaches for making decisions about the treatment of severely disabled children. (shrink)
The coronavirus disease 2019 (COVID-19) pandemic has motivated medical ethicists and several task forces to revisit or issue new guidelines on allocating scarce medical resources. Such guidelines are relevant for the allocation of scarce therapeutics and vaccines and for allocation of ICU beds, ventilators, and other life-sustaining treatments or potentially scarce interventions. Principles underlying these guidelines, like saving the most lives, mitigating disparities, reciprocity to those who assume additional risk (eg, essential workers and clinical trial participants), and equal access may (...) compete with one another. We propose the use of a “categorized priority system” (also known as a “reserve system”) as an improvement over existing allocation methods, particularly because it may be able to achieve disparity mitigation better than other methods. (shrink)
This book challenges fundamental doctrines of established medical ethics. It is argued that the routine practice of stopping life support technology causes the death of patients and that donors of vital organs (hearts, liver, lungs, and both kidneys) are not really dead at the time that their organs are removed for life-saving transplantation. Although these practices are ethically legitimate, they are not compatible with traditional medical ethics: they conflict with the norms that doctors must not intentionally cause the death of (...) their patients and that vital organs can be obtained only from dead donors. The aim of this book is to undertake an ethical examination that aims to honestly face the reality of medical practices at the end of life. This involves exposing the misconception that stopping life support merely allows patients to die from their medical conditions, that there is an ethical bright line separating withdrawal of life support from active euthanasia, and that determination of death of hospitalized patients prior to vital organ donation is consistent with the established biological conception of death. A novel ethical justification is required for procuring vital organs from still-living donors. It is contended that in the context of plans to withdraw life support, donors of vital organs are not harmed or wronged by organ procurement prior to death, provided that valid consent is obtained for stopping treatment and organ donation. In view of serious practical difficulties in facing the truth regarding organ donation, an alternative pragmatic account is developed for justifying current practices that relies on the concept of transparent legal fictions. In sum, it is the thesis of this book that to preserve the legitimacy of end-of-life practices, we need to reconstruct medical ethics. (shrink)
This special report is published in commemoration of the fiftieth anniversary of the “Report of the Ad Hoc Committee of the Harvard Medical School to Examine the Definition of Brain Death,” a landmark document that proposed a new way to define death, with implications that advanced the field of organ transplantation. This remarkable success notwithstanding, the concept has raised lasting questions about what it means to be dead. Is death defined in terms of the biological failure of the organism to (...) maintain integrated functioning? Can death be declared on the basis of severe neurological injury even when biological functions remain intact? Is death essentially a social construct that can be defined in different ways, based on human judgment? These issues, and more, are discussed and debated in this report by leading experts in the field, many of whom have been engaged with this topic for decades. (shrink)
Jahi McMath's case has raised challenging uncertainties about one of the most profound existential questions that we can ask: how do we know whether someone is alive or dead? The case is striking in at least two ways. First, how can it be that a person diagnosed as dead by qualified physicians continued to live, at least in a biological sense, more than four years after a death certificate was issued? Second, the diagnosis of brain death has been considered irreversible; (...) in fact, there has never been a case of a person correctly diagnosed as brain‐dead who improved to the point that the person no longer fulfilled the diagnostic criteria. If the neurologist Alan Shewmon is correct that, prior to her cardiac arrest in June 2018, McMath no longer met the criteria for brain death and was actually in a minimally conscious state, this case could have momentous implications for how we think about this diagnosis going forward. In this essay, I will offer a hypothesis that could, perhaps, explain both these aspects of the case. The hypothesis is based on differences in how we distinguish between biological and legal categories. The law tends to prefer to draw bright‐line distinctions between categories, whereas biological categories tend to fall along a spectrum, without sharp distinctions. (shrink)
Ethical climate (EC) has been broadly described as how well institutions respond to ethical issues. Developing a tool to study and evaluate EC that aims to achieve sustained improvements requires a contemporary framework with identified relevant drivers. An extensive literature review was performed, reviewing existing EC definitions, tools and areas where EC has been studied; ethical challenges and relevance of EC in contemporary paediatric intensive care (PIC); and relevant ethical theories. We surmised that existing EC definitions and tools designed to (...) measure it fail to capture nuances of the PIC environment, and sought to address existing gaps by developing an EC framework for PIC founded on ethical theory. In this article, we propose a Paediatric Intensive Care Ethical Climate (PICEC) conceptual framework and four measurable domains to be captured by an assessment tool. We define PICEC as the collective felt experience of interdisciplinary team members arising from those factors that enable or constrain their ability to navigate ethical aspects of their work. PICEC both results from and is influenced by how well ethical issues are understood, identified, explored, reflected on, responded to and addressed in the workplace. PICEC encompasses four, core inter-related domains representing drivers of EC including: (1) organisational culture and leadership; (2) interdisciplinary team relationships and dynamics; (3) integrated child and family-centred care; and (4) ethics literacy. Future directions involve developing a PICEC measurement tool, with implications for benchmarking as well as guidance for, and evaluation of, targeted interventions to foster a healthy EC. (shrink)
This paper reframes the futility debate, moving away from the question “Who decides when to end what is considered to be a medically inappropriate or futile treatment?” and toward the question “How can society make policy that will best account for the multitude of values and conflicts involved in such decision-making?” It offers a pragmatist moral epistemology that provides us with a clear justification of why it is important to take best standards, norms, and physician judgment seriously and a clear (...) justification of why ample opportunity must be made for patients, families, and society to challenge those standards and norms. (shrink)
Controversies about the diagnosis and meaning of brain death have existed as long as the concept itself. Here we review the historical development of brain death, and then evaluate the various attempts to justify the claim that patients who are diagnosed as brain dead can be considered dead for all legal and social purposes, and especially with regard to procuring their vital organs for transplantation. While we agree with most commentators that death should be defined as the loss of integration (...) of the functioning of the organism as a whole, we conclude that patients diagnosed as brain dead have not, in fact, lost this integrated functioning. We close with reflections on the implications of this conclusion generally and particularly with regard to organ transplantation, and briefly make reference to alternative approaches to justifying the procurement of transplantable organs that do not depend upon a flawed approach to the diagnosis of death. (shrink)
Bioethics is a hybrid discipline. As a theoretical enterprise it stands for untrammeled inquiry and argument. Yet it aims to influence medical practice and policy. In this article we explore tensions between these two dimensions of bioethics and examine the merits and perils of a “Socratic” approach to bioethics that challenges “the conventional wisdom.”.
Historically, the practice of medicine has been a physically intimate endeavor. Physicians have used their hands to palpate and reveal the secrets hidden within the body. Smelling the breath for the ketosis of diabetes or tasting the skin for the saltiness of cystic fibrosis were among the physician's essential practices. Today, perhaps the most defining characteristic of a brilliant clinician is the ability to synthesize many images—from electrocardiograms, ultrasounds, CT scans, and so forth—into a coherent picture that can guide our (...) diagnosis and treatment. Yet this is rapidly becoming a Sisyphean task. Just as we are about to drown in a deluge of data, AI is throwing us a life preserver, to save not only our patients but ourselves. But where will AI take us? (shrink)
Discussion of the ethics of forgoing medically provided nutrition and hydration tends to focus on adults rather than infants and children. Many appellate court decisions address the legal propriety of forgoing medically provided nutritional support of adults, but only a few have ruled on pediatric cases that pose the same issue.The cessation of nutritional support is implemented most commonly for patients in a permanent vegetative state ). An estimated 4,000 to 10,000 American children are in the permanent vegetative state, compared (...) to 10,000 to 25,000 adults. Yet the dearth of literature, case reports, and court decisions suggests that physicians and families of pediatric patients stop medically provided nutrition or seek court orders much less frequently. (shrink)
Drawing on a recent case report of a pregnant, brain‐dead woman who gave birth to a healthy child after over seven months of intensive care treatment, this essay rejects the established doctrine in medicine that brain death constitutes the biological death of the human being. The essay describes three policy options with respect to determination of death and vital organ transplantation in the case of patients who are irreversibly comatose but remain biologically alive.
Johan Brännmark's article “Patients as Rights Holders,” in this issue of the Hastings Center Report, squarely identifies some important problems with the way we in clinical practice conceive of our obligations to our patients. As a solution, he helpfully suggests augmenting our focus on autonomy and informed consent with a broader menu of considerations drawn from the literature on human rights. Respect for autonomy is, of course, one of the hallowed principles of bioethics. In our traditional understanding, our patients deserve (...) our respect because they are capable of autonomous choice, and the way we demonstrate our respect is by seeking their informed consent for our care. This model is so deeply ingrained that many of us have difficulty imagining that there could be any other way of thinking about it. But this model has two very serious drawbacks, problems that speak to much of what is wrong with health care today. (shrink)
Some patients in intensive care units are too sick to derive much benefit from being there, while others are too well to require the technology and skills offered. When ICU resources are scarce, they may ethically be withdrawn from either sort of patient in favor of one more likely to benefit from the care.
It is hard to imagine two precepts that enjoy more uniform support among the international medical community than the ethical prohibitions against physician participation in capital punishment and torture. Yet the two articles in this issue of the Hastings Center Report challenge these sacred assumptions, arguing that the ethics of these issues are more complicated than they may seem, and that each deserves more nuanced consideration than it has received in the past.I have personally written in opposition to the participation (...) of physicians in capital punishment, and while I continue to support this view, I acknowledge that the arguments I used depended to some extent upon the consensus statements of medical .. (shrink)
This article constitutes excerpts of a videotaped discussion hosted by the New England Journal of Medicine on January 14, 2008, concerning a range of topics on lethal injection prompted by the United States Supreme Court's January 7 oral arguments in Baze v. Rees. Dr. Atul Gawande moderated the roundtable that included two anesthesiologists - Dr. Robert Truog and Dr. David Waisel - as well as law professor Deborah Denno. The discussion focused on the drugs used in lethal injection executions, whether (...) physicians should participate, potential alternatives, and some of the legal parameters of Baze. (shrink)
‘Treatment’ from which the patient cannot benefit is sometimes administered to a patient so that the comfort of the patient's family or caregivers may be increased. Is this permissible? To answer that question we will explore the interests of the permanently unconscious patient and the potential for such a patient's interests to conflict with those of her family and healthcare providers. We will conclude that in the likely absence of a specific advance directive from the patient providing for such circumstances, (...) treatment for the benefit of the family may be given so long as it is not abusive. However, treatment solely for the comfort of caregivers may not be given without consent of the patient's surrogate decisionmakers. (shrink)