The legal parameters

'Technological advances have allowed us to diagnose the permanent vegetative state with such accuracy, and bioethics and law have progressed to such a point that it is now surely time to redefine death in such a way as to include the PVS patient. After all, courts and doctors are already treating such patients as if they were dead. ' 1. Introduction The patient in the permanent vegetative state (PVS) has a fully functioning brainstem, albeit the higher cerebral functions of the brain have been lost.

The person in this condition maintains standard sleep cycles with full or partial hypothalamic and brain stem autonomic functions that facilitate coughing, sneezing, scratching, smiling, crying and sensory reactions. All are automatic responses, able to survive when the cognitive and sensory function filled higher brain dies1. The permanency rather than persistence of this state is a purely temporal diagnosis with the former resulting from a person being in a vegetative state for a period of twelve continuous months or more and the latter from a person being in a vegetative state for one month.

However the term permanent rather than persistent is itself loosing favour in light of the however small chance of recovery experienced by some of the patients suffering from this condition, physicians themselves are less inclined to label these patients as being beyond recovery. This chronic condition is most likely to be the result of either a massive impact injury to the head or of cerebral anoxia as a result of degenerative disease or metabolic disease.

The cause of the condition is of paramount importance since there is an established correlation between cause and recovery, where the cause of PVS is disease, the general weakness and global deteriation of the body harbours a poor prognosis, traumatic injury, often sustained by the young and otherwise healthy body bodes relatively well for a good recovery. 2. Dead. Dead. For some death is the continuance of our journey to eternal life, paradise entered, for others it represents the imminent pause between life cycles which facilitates the souls search for an ultimate home, for others yet death is simply the end.

Of everything. Forever. Regardless of the theological, moral, religious and deeply personal views that can be easily canvassed, death as a state is essentially a matter of law, medicine provides simply to determine if death's legal criteria has been met3 although in unison with the other common law countries, in the UK there is a complete absence of legislation and statute which provides the exact criteria of death. 4 It is, this the legal parameters, definitions and implications of the diagnosing of death which this essay will concern itself with.

In particular I will explore the development of the legal diagnosis of death from that of simple and permanent cardio-pulmonary failure, through the various technological interventions leading to the brain involvement and discuss the extent to which the extension of this premis could be applied to and should be applied to the patient finding himself in a permanent vegetative state, clearly identifying the medical physical and biological differences between the two conditions and consider whether, having been legally recognised as being alive in all cases, the PVS patient at the centre of legal action is not dying as a result of actual bodily decay into death, but as a result of the doctors legally permitted killing of their unresisting body5 unkindly named as vegetable in order to dehumanise the act of murder and desensitise the medics moral sensitivitities. Prior to the 1960's death in the UK was judged primarily by the diagnosis of cardio-pulmonary failure, the final seconds of a lived life being determined by the stopping of the heart and the resting of the chest. The significance of the failure of these organs is related to the cessation of the flow of fluid around the body, the oxygenated liquid of life – blood.

Up until this period, the persistent absence of a heartbeat and an accompanied absence of breathing provided the only legal justification for generations of medics to pronounce the patient dead. This manner of dying still occurs today and from the relative's point of view, the body's transition between being legally alive to being pronounced legally dead is plain to see, obvious and easily appreciated. A blatant non-breathing body, sometimes accompanied often by a continuous monotone alarm tone and the ominous, but well recognised flat line on the monitor, often provides the undeniable physical evidence that shock and grief conspire to deny. This type of death is an event.

But even in the 1960's the concept of cardio-pulmonary failure as being the only criterion of legal death was dying. "Brain death" had been described as a medical phenomenon in 19596 and in 1968 The World Medical Assembly7 declared, " Death is a gradual process at the cellular level, with tissues varying in their ability to withstand deprivation of oxygen. But clinical interest lies not in the state of preservation of isolated cells but in the fate of a person. Here the point of death of the different cells and organs is not so important as the certainty that the process has become irreversible, whatever techniques of resuscitation may be employed.

" Death had now been officially defined as a process. 8 The defining of dying as being an event had been forever undermined by technology and scientific advancement. The recent introduction of assisted ventilation and heart by pass machines had demonstrated that the essential flow of fluid could be maintained mechanically, the biological system essential for the delivery of oxygenated blood to the body could be replaced artificially with the result that technically, legally and medically the cardio-pulmonary system could no longer be judged to be constitutive of human life. In 1967 Christian Barnard performed the first human heart transplant in Cape Town's Groote Schuur Hospital.

Of limited success with the recipient surviving for only eighteen days, this milestone procedure nonetheless illustrated that the heart, previously considered to be the centre constituent of human life and perversely its corollary death, could be bypassed and even replaced. In this period of unique scientific and technological advances the single organ that remained irreplaceable was the brain. The medical demotion of the heart and lungs led to the necessary legal promotion of the brain as a criterion for deciding legal death. In France a particular condition had been noted. "Come depasse"9 occurred in intensive care patients who had lost all ability to spontaneously breathe, with respiration being entirely instigated by mechanical ventilation. The end result was always the entire destruction of the rest of the system. In the UK this became known as 'brain death".