The neurological determination of death: what does it really mean?

The recent Canadian forum's recommendations regarding "neurological determination of death" claim to have determined a "Canadian definition, criteria, and minimum testing requirements for neurological determination of death." In this review the problems with this statement are discussed. The criterion of neurological determination of death does not fulfill the definition of death, because there is continued integration of the organism as a whole. The tests for neurological determination of death do not fulfill the criterion of neurological determination of death because they do not show the irreversible loss of all critical brain functions. The forum has provided no coherent argument for why neurological determination of death should be considered death. I suggest that one cannot invoke expert opinion to clarify a criterion of death, and tests for this criterion of death, without a clear concept of what death is. The forum has clarified tests for what they call "neurological determination of death," but this is not death itself; rather, it is a neurologically devastating state. Whether this state of "neurological determination of death" is enough to justify the morality of harvesting organs prior to death is the real question. A potential solution to this question is discussed.     

脑死亡若干法律问题研究

脑死亡是刑法学中与人的生命保护界限密切相关的问题。脑死亡的新观念虽然面临挑战 ,但其科学合理性毋庸置疑。脑死亡的时间应当以全脑机能不可逆性丧失时为准。脑死亡的概念与判定标准 ,有必要在器官移植法中予以规定。     

A critique on the concept of "brain death"

Since the concept of "brain death" was introduced in medical terminology, enough evidence has come to light to show that the concept is based on an unclear and incoherent theory. The "brain death" concept suffers by internal inconsistencies in both the tests-criterion and the criterion-definition relationships. It is also evident that there are residual vegetative functions in "brain dead" patients. Since the content of consciousness is inaccessible in these patients who are in a profound coma, the diagnosis of "brain death" is based on an unproved hypothesis. A critical evaluation of the role and the limitations of the confirmatory tests in the diagnosis of "brain death" is attempted. Finally it is pointed out that a holistic approach to the problem of "brain death" in humans should necessarily include the inspection of the content of consciousness.     

Forensic science and the law

Forensic Science today makes an important contribution to the operation of the Criminal Justice System providing evidence which could help decide the guilt of a suspect. Forensic Science is able to do so because it has developed to operate within the reality determined by the Criminal Justice System. Changes that are occurring today seem to upset the relationship between Forensic Sciences and the Criminal Justice System by the creation of communication problems. Examples of these problems exist in the changes occurring in the concept of death made necessary by organ transplants. These changes have shifted the focus from the quantity of life to the quality of life and make it impossible for the Forensic Scientist to answer honestly the questions that might be put him. The need for reforms in the law in view of social changes has been recognized and in many countries attempts at such changes are afoot. With these changes a new reality is being defined. Forensic Science, being a discipline that comes first in contact with a multitude of emergent problems, has a part to play in the definition of this reality.     

Brain Death - Too Flawed to Endure, Too Ingrained to Abandon

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.     

对“法律真实”证明标准的质疑

无论是刑事实体法律规范还是刑事程序法律规范都不具有判定案件事实是否真实的功能。“法律真实”所陈述的基本内容与判定证据是否充分的标准重复 ,所以“法律真实”证明标准是不能成立的 ,“法律真实”这个概念是一个伪概念。“客观真实”标准是判定证据是否真实和是否充分的有机统一 ,对传统“客观真实说”作一些必要的限定之后 ,客观真实标准仍然是刑事诉讼证明的基本标准。     

论脑死亡标准中的法律问题

随着医学科学的迅速发展 ,传统的死亡标准已不能适应现实的需要 ,更阻碍了有关医学的进一步发展。有学者提出脑死亡概念 ,国外也有相关立法 ,我国脑死亡立法也已进入实质性程序。本文对脑死亡的概念、意义、标准及国外的规定作了初步的阐述 ,并对我国的立法提出建议。     

英国法上"死亡"定义之考察

本文从英国判例法和医学行业标准两个方面考察了英国法上“死亡”这一概念的发展过程,阐释了传统的心跳和呼吸停止标准与脑死亡标准的关系以及英国社会目前对死亡定义所存在的疑虑和争议,并且指出了英国法对我国的借鉴意义。本文通过对英国法上死亡定义的考察,以期对我国目前正在进行的脑死亡法的起草工作有所助益。     

DNA analysis in the forensic medical examination of material evidence: the problem of individualization

The criterion of sufficiency of genetic information for establishing identity should be accepted for adequate realization of the potentialities of DNA identification as a legal proof. Attaining of this point in expert evaluations will be considered sufficient for formulation of a categorical conclusion on the source of the object. The key point in the choice of this criterion should be clear-cut definition of the identification task; analysis of equivalent probability values is suggested as its technology. The choice and regulation of the reference value should be carried out at an inter-departmental level.     

Can we handle the truth? Legal fictions in the determination of death

Advances in life-saving technologies in the past few decades have challenged our traditional understandings of death. People can be maintained on life-support even after permanently losing the ability to breathe spontaneously and remaining unconscious and unable to interact meaningfully with others. In part because this group of people could help fulfill the growing need for organ donation, there has been a great deal of pressure on the way we determine death. The determination of death has been modified from the old way of understanding death as occurring when a person stops breathing, her heart stops beating, and she is cold to the touch. Today, physicians determine death by relying on a diagnosis of total brain failure or by waiting a short while after circulation stops. Evidence has emerged that the conceptual bases for these approaches to determining death are fundamentally flawed and depart substantially from our biological and common-sense understandings of death. We argue that the current approach to determining death consists of two different types of unacknowledged legal fictions. These legal fictions were developed for practices that are largely ethically legitimate but need to be reconciled with the law. However, the considerable debate over the determination of death in the medical and scientific literature has not informed the public of the fact that our current determinations of death do not adequately establish that a person has died. It seems unlikely that this information can remain hidden for long. Given the instability of the status quo and the difficulty of making the substantial legal changes required by complete transparency, we argue for a second-best policy solution of acknowledging the legal fictions involved in determining death. This move in the direction of greater transparency may someday result in allowing us to face squarely these issues and effect the legal changes necessary to permit ethically appropriate vital organ transplantation. Finally, this paper also provides the beginnings of a taxonomy of legal fictions, concluding that a more systematic theoretical treatment of legal fictions is warranted to understand their advantages and disadvantages across a variety of legal domains.     

Comparison of chemical methods for determining postmortem interval

Accurate determination of postmortem interval (PMI) is a problem for the forensic thanatologist, especially in unwitnessed deaths. A number of objective chemical methods for determining PMI have been developed, the most widely used being accumulation of potassium in the vitreous humor. The authors previously have reported a chemical method for determining PMI from the predictable accumulation or clearance of the dopaminergic metabolite 3-methoxytyramine (3-MT) in the putamen of the brain. They have extended their previous study to compare directly the accuracy of determining PMI from the level of 3-MT in putamen with the level of potassium in vitreous humor. The data indicate that 3-MT is at least as accurate as, if not more accurate than, potassium accumulation in vitreous humor, although 3-MT levels can be affected by the cause of death and drugs present at the time of death. Nevertheless, determination of both the 3-MT and potassium levels can afford the most accurate method of determining PMI; preliminary nomograms for determining PMI from both variables are presented.     

刍论中国脑死亡立法

＂脑死亡＂立法属于科技含量高,人权及伦理学混杂的法律进程。全文对脑死亡立法作了理论基础分析,对脑死亡立法的必要性,目前面临的主要问题作了探讨,提出对脑死亡立法的建议。     

Refining the definition of death for Australian legislation

In the article Mr. Smith considers the need for reform in the area of defining when death occurs and the various approaches that exist to define death. He then analyses the stages of the developments in the various Australian jurisdictions and discusses the substantive content of the basic definition adopted and the practical implications of any enactment. The author suggests that the concept of death should be legislatively enacted in relevant pieces of legislation which call for a resolution of the question at the present time and a more general separate statement defining death should be avoided at the moment. Conceptually death should be defined as the permanent and irreversible loss of consciousness of the individual as determined by irreversible cessation of the brain stem function. The actual operational criteria of death should form the subject of a circular published by the relevant statutory health authority for the guidance of medical practitioners in relation to the specific problems they face.     

死缓应当作为死刑执行的必经程序

判处死刑缓期二年执行,是具有中国特色的“少杀慎杀”制度。现行死缓制度是对中国古代“少杀慎杀”思想的扬弃,在新的时代背景下具有了新的价值。在理论上具有概念的扩张作用,折衷作用,体现双重刑罚目的作用;在实践中,具有培育适度死刑观念,贯彻“少杀”政策,真正做到“少杀”的作用。将死缓作为死刑执行的必经程序是全面废除死刑的必要准备,符合国情的需要和刑罚理性发展的趋势。     

Testing an Age-old Adage: Can Autopsy Findings be of Assistance in Differentiating Opioid Versus Cardiac Deaths?

Given the common occurrence of both opioid and cardiovascular deaths, and the concomitant use of opioids in those with cardiac disease, the present study was undertaken to see whether the old adage of using the triad of cerebral and pulmonary edema and bladder fullness to suggest an opioid death could be used to differentiate deaths due to opioid toxicity from deaths due to cardiac disease. Brain weight, lung weight, and bladder fullness were compared among opioid-related deaths, cardiac deaths, and a control population. It was found that opioid-related deaths were more likely to have heavy lungs, a heavy brain, and a full bladder, while cardiac-related deaths had smaller volumes of urine in the bladder and heavier hearts. In conjunction with a thorough investigation, these findings may be useful to forensic pathologists when determining whether a death is opioid-related, especially in the setting of concomitant cardiac disease.     

Postmortem biochemistry

Postmortem biochemistry may provide significant information in determining the cause of death. Due to the rapid postmortem breakdown of metabolism and active membrane transport only analytes which are stable in blood can be determined on this fluid compartment, other parameters have to be analysed on other fluid compartments like vitreous humor (VH). However, using another fluid compartment as a mirror of blood at the moment of death involves severe methodical problems. The conceptual problems of reference values in vitreous humor as a mirror of blood are addressed. Additionally, the necessary steps to be taken before calculating the discriminating values between "normal" and "diseased" are described. For all chemical determinations, a clear definition of the site of sample acquisition is necessary. Up to now chemical determinations on alternative fluids have mainly been carried out using instruments calibrated for urine or serum. Developing calibrated methods for analysis of alternative fluids is a further task for the future.     

The significance of anticipating suspected brain death for the accusation of failure to treat according to Section 323c of the Federal Penal Code

Brain death is usually not confirmed by neurological and angiographical techniques until long after it has actually taken place. In connection with a case in which expert testimony was heard, clinical and radiographic evidence and the autopsy statement are discussed as criteria of continuing development of brain edema; on the basis of the evidence it was possible to conclude that the cerebral circulation had not yet ceased at the time assumed.     

DOES THE BUSINESS JUDGMENT RULE HELP PROMOTE CORPORATE SOCIAL RESPONSIBILITY?

The business judgment rule (BJR) is a U.S. corporate law concept that has gained international recognition. It has been moulded, particularly in the definition of the Delaware courts, to protect the managerial business discretion, in other words to protect directors’ decisions from judicial review. Corporate social responsibility (CSR) questions the relationship between corporation with a business purpose and society. More and more attention is drawn to the various impacts of corporate decisions on society, asking for the necessity for directors to take these impacts into consideration when making business decisions. At the centre of CSR and the BJR are the fiduciary duties of the directors — the duty of diligence and the duty of care — and the question as to if the directors have breached their duties and if they have fulfilled them in a CSR compatible manner. This paper discusses how the BJR helps promoting CSR by discussing the advantages and disadvantages (real or apparent) of the BJR with respect to CSR.     

公共起诉资格的生成

根据起诉资格的私法模式,救济与权利是相互依存的,只有那些自身权利受到威胁（或损害）的人才有资格获得救济。然而,此种旨在维护个人普通法权利的私法模式对于规制型国家中大量出现的制定法利益已不敷其用,从而导致体现这些制定法利益的公共起诉资格模式应运而生。该模式确认起诉资格的标准相继体现为不法侵害标准和“当事人遭受损害”条款标准,并且宽泛的“当事人遭受损害”条款标准导致的违宪争议也随着法兰克弗特法官所创造的“私人检察总长”术语而得以消解。