Ethics

Deemed Consent Lecture in Northern Ireland

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This is the lecture I delivered. A wonderful evening with some lively debate.

Find my lecture slides HERE.

Listen to the Podcast below or visit my other podcasts.

Podcast

Ethical exploration of the decision tree for brain-stem death testing.

Conceptual decision tree for patients fulfilling the pre-conditions for brainstem death testing.
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Decision options
A = B
There is no difference (eg ethical, legal, scientific or professional) between the decision to test or not test. Therefore there can be no criticism of any clinician who regards these two options as equivalent.
A B
Either because A > B or B > A
Possible justifications for believing A > B
Testing allows the confirmation of brain death which allows the donation of more and better quality organs for transplantation.

(Implication: if organ donation is not a possibility then there is no justification for testing and A = B).

Possible justifications for believing that A > C
The criteria used to establish death by brainstem death testing, are more scientifically, ethically, legally and professionally robust than the criteria which are used by clinicians to make a decision to withdraw life-sustaining treatment.
- Evidence for robustness = nearly 40 years of established criteria and professional consensus that if these criteria are met mechanical ventilation can be ceased (there are no equivalent national criteria or professional consensus for withdrawal of mechanical ventilation when patients do not satisfy brainstem death), no cases of recovery when correctly diagnosed, and case law recognising brainstem death as death.
- “Where Brain Stem Death (BSD) is suspected, it is [highly] desirable to confirm this by Brain Stem Testing
  1. To eliminate all possible doubt regarding survivability
  2. To confirm diagnosis for families
  3. In cases subject to medico-legal scrutiny
  4. To provide choice regarding organ donation”
(With thanks to Dr Argyro Zoumprouli for these points)

(Implication: brain stem death testing is desirable regardless of donation potential owing to its superiority over withdrawal decisions).

Possible justifications for believing that A > D
Continuing intensive care treatment until cardiac arrest and failed resuscitation, in a patient with catastrophic brain injury, where no recovery was envisaged, may result in the burdens of treatment outweighing the benefits for the patient and the family. Such continuation of treatment may also be against what the patient might have wished, felt, valued and believed (autonomy) and is unlikely to satisfy distributive justice considerations.

(Implication: brain stem death testing is desirable regardless of donation potential owing to its superiority over continuing intensive care treatments because it allows earlier cessation of treatment that is non-beneficial, potentially harmful, and may be against patient autonomy and distributive justice concerns).

Possible justifications for believing B > A
Brainstem death testing is not reliable, safe, philosophically coherent or religiously acceptable. (Truog, Evans, Shewmon)

(Implication: brain stem death testing should be abandoned).

Possible justifications for believing C > A
Withdrawal decisions leading to circulatory cessation are more routine on ICU, less complex, more readily explained, more easily understood by families, and reduce the length of time from the medical conclusion that survival will not occur to death.

(Implication: without another justification eg organ donation, withdrawal is the more appropriate pathway for death in ICU or the Emergency Department).

Possible justifications for believing D > A / C
Neither brain death testing or withdrawal decisions are reliable, safe, philosophically coherent or religiously acceptable (Some particular groups within countries, some ‘right to life’ proponents).
Requires no active decision, so less open to medico-legal criticism.

(Implication: no patient should ever have treatment withdrawal).



Conceptual decision tree for patients fulfilling the pre-conditions for brainstem death testing but needs stabilising before the tests can be carried out.
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Decision options
Possible justifications for believing E > F
Stabilising a patient allows the opportunity for a better assessment and prognostication and gives greater opportunity for patient recovery (if possible). Increased time may help families better understand and come to terms with the impending bereavement.

(Implication: most patients deserve stabilisation to allow better patient assessment).



Possible justifications for believing F > E
The patient is dying and any efforts to stabilise the patient or continue life-sustaining treatment slows this natural progression. The benefits accrued to the patient and the risks to other patients requiring intensive care do not justify this intervention. Stabilisation may give family hope to the family.

(Implication: withdrawal is the more appropriate pathway for death in ICU or the Emergency Department. Donation after Circulatory Death will also not be possible when there is no stabilisation).

Possible justifications for believing A > F
Stabilisation, to allow for brainstem death testing would usually be in the patients best interests because the desirability for confirming death using neurological criteria outweighs any potential risks of harm, pain, suffering or distress.
In patients who wanted to be a donor, stabilising to allow testing, allows for donation after brain death, and more successful donation outcomes. Stabilisation will also be required for successful Donation after Circulatory Death.

(Implication: brain stem death testing is highly desirable and this justifies efforts to stabilise wherever practicable. The desirability for stabilisation is further increased if the person wished to be a donor).

Possible justifications for believing C > E
There is now even greater evidence that death is inevitable, since this patient with catastrophic brain injury requires stabilisation. Withdrawal allows the current intensive care interventions already in use, such as mechanical ventilation, to be removed, allowing the natural course of dying to proceed without interventions that slow this process. Withdrawal will free up intensive care resources for other patients.

(Implication: withdrawal is the more appropriate pathway for death in ICU or the Emergency Department).

Possible justifications for believing D (via E) > F / C / A
Neither brain death testing or withdrawal decisions are reliable, safe, philosophically coherent or religiously acceptable. Stabilisation is essential, as every patient should have every effort made to maintain life for as long as technology allows.

(Implication: only in failed cardiac arrest in a patient receiving full and active life-sustaining treatment, is cessation of intensive care efforts appropriate).

Possible justifications for believing D (via F) > E / A / C
The patient is dying and any efforts to stabilise the patient or continue life-sustaining treatment slow this natural progression but nor is a withdrawal decision reliable, safe, philosophically coherent or religiously acceptable.
Requires no active decision, so less open to medico-legal criticism.

(Implication: in inevitably dying patients, no patient should ever have the dying process interfered with).



Conceptual decision tree for patients not meeting pre-conditions for testing but it is strongly suspected they will over a short time-frame


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Decision options
Possible justifications for believing G > H
Delaying allows the opportunity for a better assessment and prognostication and gives greater opportunity for patient recovery (if possible). Increased time may help families better understand and come to terms with the impending bereavement.

(Implication: most patients deserve a delay to allow better patient assessment).


Possible justifications for believing H > G
The patient is dying and any delay slows this natural progression. The benefits accrued to the patient and the risks to other patients requiring intensive care do not justify this intervention. Delay may introduce false hope to the family.

(Implication: withdrawal is the more appropriate pathway for death in ICU or the Emergency Department).

Possible justifications for believing A > H
Delaying would usually be in the patients best interests because the desirability for confirming death using neurological criteria outweighs any potential risks of harm, pain, suffering or distress.
In patients who wanted to be a donor, delaying to allow the full criteria of brain stem death to be met during testing, allows for donation after brain death, and more successful donation outcomes. The delay may help families better understand and come to terms with the impending bereavement.

(Implication: brain stem death testing is highly desirable and this justifies delays to allow this diagnosis to be made. The desirability is further increased if the person wished to be a donor or if families need time to come to terms with the impending death).

Possible justifications for believing H / C > G
Withdrawal allows the current intensive care interventions already in use, such as mechanical ventilation, to be removed, allowing the natural course of dying to proceed without interventions that slow this process. Withdrawal will free up intensive care resources for other patients. Delay may introduce false hope to the family.

(Implication: withdrawal is the more appropriate pathway for death in ICU or the Emergency Department).

Possible justifications for believing D > H / C / A
Neither brain death testing or withdrawal decisions are reliable, safe, philosophically coherent or religiously acceptable. Every patient should have every effort made to maintain life for as long as possible and delay is implicit to this aim.

(Implication: only in failed cardiac arrest in a patient receiving full and active life-sustaining treatment, is cessation of intensive care efforts appropriate).
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