Verheijde, Joseph L.

In the recent court case of In Re Guardianship of Hailu, the Nevada Supreme Court cast doubt on the acceptability of the American Academy of Neurology’s guidelines as a medical standard for determining brain death. The Uniform Determination of Death Act, which has been adopted in every state, requires that brain death diagnoses be made in accordance with accepted medical standards. The Court expressed concern that the guidelines fail to ensure that there is an irreversible cessation of all functions of a person’s entire brain, which is a component of the Act’s definition of death. Although the Nevada Supreme Court remanded the case to the District Court to hear more expert evidence concerning whether the guidelines constitute “accepted medical standards,” the patient who was the subject of the case met the criteria for cardiopulmonary death several weeks prior to the hearing and the legal case became moot. As a result, the issue of whether the American Academy of Neurology guidelines, or some other criteria for determining brain death, are accepted medical standards for determining whether all brain function has ceased remains unresolved.

Mr Justice Baker delivered the Oxford Shrieval Lecture ‘A Matter of Life and Death’ on 11 October 2016. The lecture created public controversies about who can authorise withdrawal of assisted nutrition and hydration (ANH) in disorders of consciousness (DOC). The law requires court permission in ‘best interests’ decisions before ANH withdrawal only in permanent vegetative state and minimally conscious state. Some clinicians favour abandoning the need for court approval on the basis that clinicians are already empowered to withdraw ANH in other common conditions of DOC (e.g. coma, neurological disorders, etc.) based on their best interests assessment without court oversight. We set out a rationale in support of court oversight of best interests decisions in ANH withdrawal intended to end life in any person with DOC (who will lack relevant decision-making capacity). This ensures the safety of the general public and the protection of vulnerable disabled persons in society.