Legal Issues
Death and Dying
The Right to Die
Leaving off the question of the morality or ethical permissibility of
suicide, the law has been clear on 2 points regarding it:
1914: Justice Benjamin Cardozo, in the Schloendorff case asserts: “every
human being of adult years and of sound mind has a right to
determine what shall be done with his own body.”
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The book notes that this finding supported the right to refuse treatment …
obviously, if it is wrong to treat a patient without consent, the patient must
have a right to refuse treatment
1984: Bartling v. Superior Court contains the first explicit statement that
a patient has the right to refuse life-sustaining treatment.
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The Bartling decision found that competence of the patient is crucial to
determining the right to die
Courts, however, have been reluctant to give a formal definition of competence
Definition of Death
1980 the Uniform Determination of Death Act
(UDDA) establishes 2 tests to determine
death:
1. Irreversible cessation of circulatory and
respiratory functions, and
2. Irreversible cessation of all functions of the
entire brain, including the brain stem
Anyone who passes either test is dead.
Most states have adopted UDDA
Determination of Death
On p127, the book notes that UDDA was promulgated by the
National Conference of Commissioners on Uniform State Laws.
That organization recommended these procedures for the
declaration of death (these are not required by law):
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The ventilator should be removed after death is declared
The physician (and not the family) should make the decision to declare death
The physician may choose to consult with others (though the physician may
choose not to) before declaring death
The declaration should not be made by someone with an interest in the
subsequent use of the tissue of the patient
Persistent Vegetative State
Persistent Vegetative State (PVS):
Loss of all (or nearly all) higher brain function
 differs from brain death because the brain
stem continues to function and the body is
not dead
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Minimally Conscious State
Due to the Terri Schiavo case, a distinction has
been introduced between PVS and MCS,
Minimally Conscious State.
MCS:
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Severely altered consciousness
Definite behavioral evidence of self-awareness, or
evidence of environmental awareness
Scientists have developed criteria to diagnose
MCS:
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Functional interactive communication
Functional object use
There are currently no guidelines for the care
of MCS patients; the book recommends
patients be treated with dignity and
recognize the potential for understanding
the perception of pain.
New Research into PVS
Read this article on how brain scan technology has
shown more PVS patients that previously thought are
conscious.
Owen's group performed fMRI on 54 minimally conscious
and vegetative patients, and told them to imagine playing
tennis if they wanted to answer "yes" and to imagine
navigating the streets of a familiar city if they wanted to
answer "no". Five of the patients were capable of answering
the questions correctly in this way. All five had been
diagnosed as being in a vegetative state, and only two of
them responded to behavioural tests of awareness.
–The Guardian
Life-Sustaining Treatments
The occasional difficulty of determining death,
made worse by PVS and MCS issues, leads to
questions about the use of life-sustaining
treatments
The difficulty of determining competence to
make life-ending decisions also leads to these
questions (read 131 on Competence)
Life-Sustaining Treatments
Cardiopulmonary Resuscitation (CPR):
 Only form of life-sustaining treatment
performed without patient consent
 Perhaps only medical treatment initiated
without the order of a physician
Life-Sustaining Treatments
Advance Directives (or Directives):
 Living Will
 Durable Powers of Attorney
Formal documents that provide direction for
health care providers should the patient
become incapacitated
Living Will
In a living will a patient specifies what they would like
done in specific cases, if they fall into an irreversible
coma, lose the ability to breathe on their own, etc.
State statutes governing living wills differ state by state
 Some can be executed by anyone at any time, even on
behalf of minors
 Some require a waiting period if, say, presented by a
terminally ill patient
 Some living wills expire while other’s duration is
indefinite
Durable Powers of Attorney
An alternative to a living will is a Durable Powers of
Attorney for Health Care Decisions (DPA)
A competent person (the principle) empowers
another (an agent) to make health care decisions
in their stead, should they become incompetent
The main advantage is breadth of scope:
 DPAs can be as detailed about care as one likes,
more than a living will if desired, but allows the
agent to make decisions not anticipated in a living
will
Family Consent Laws
When no advance directive exists and the patient
becomes incompetent, family consent laws come into
play to formalize the family’s right to make health care
decisions for the patient
The book notes that this is a formalization of a standard
practice or common practice
Statutes differ from state to state, for example,
 Some require a certificate of incompetence before
decisions are left to the family
 Some specify the order of decision authority must not
be the same as that of inheritance beneficiaries
No-Code Orders
A ‘No’ code is a physician’s order not to
resuscitate a dying patient
In the mid 1980s, concern over liability led to
hospitals adopting a ‘slow’ code, meaning,
perform life-sustaining procedures
 but perform them half-heartedly
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That unwelcome situation led to clarification of
Do Not Resuscitate (DNR) orders
No-Code Orders
Imaging professionals have to know the CPR status
of each patient they treat to avoid liability for
violating DNR orders (Do Not Resuscitate)
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Know where the information is kept on the patient’s medical
record
Check the status regularly
This can vary from state to state
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you must check with your employer regarding no-code
orders
some states have partial code orders that specify which lifesustaining measures can be used