Wednesday, March 16, 2005

 

Cerebral law

There has been a lot of talk lately about victims who are brain dead, and what the legal stance on the issue is. I can tell you for one that the legal community is just as confused as everyone else when it comes to determining whether or not someone is dead, or alive, depending on their ability to create a clear and sustained pattern of thought. If that were the case, then mentally disabled people around the world would be candidates for death. I've been doing a lot of research on this issue, and while I refuse to take a moral stance on what is the determining factor of being right, or being wrong in the issue, as I believe that is a case-by-case situation that we in the legal community should try on behalf of others, and not decide for them, a fascinating piece by Sunil K. Pandya has a proposal that I find to be very clear and straightforward.
Dr M K Mani, senior nephrologist at the Apollo Hospital in Chennai, has a clearly laid down policy. Once a person is deemed to be brain dead, the relatives are called in and the diagnosis and its implications are clearly explained to them. After confirming that they have understood what has been told, they are asked to decide on the further course of action - donation of organs or stoppage of all treatment. Should they opt for the latter, the legal next-of-kin are requested to put this decision own on the case paper and sign the document. All treatment is now discontinued and the body is handed over to them. If, however, the family chooses to continue care in the intensive care unit till breathing and the action of the heart come to a permanent halt, this is honoured.

A senior consultant in Pune informed delegates attending the annual conference of this Society in that city some time ago that he proceeds along the same lines as Dr Mani but takes the additional step of asking the relatives to switch off the ventilator and stop the intravenous fluids. These are unsatisfactory measures in that they do not have the clear sanction of the law. Mr. Bumble's observation and the law enunciated by U S Air Force Captain Edward A Murphy Jr ('If anything can go wrong, it will.') may yet lead to the prosecution of a doctor by misguided relatives of a brain dead person. We have been assured by senior judges sitting on the bench and senior lawyers practising at the Supreme Court that should such a case be brought before a court, it will, almost certainly, be dismissed. Even so, the dread of seeing one's name in bold headlines - 'Doctor ABC accused of killing patient' - haunts many minds. Courts are heavily burdened and judgements often delayed by years. The appearance of the line - 'Doctor ABC found not guilty of murder' - as a footnote at the bottom of an obscure column years after the event will prove small compensation for the agony suffered by the doctor and his family.

This is an interesting scenario. Essentially, what the doctor(s) are proposing is that family members make the call, and they pull the plug. By doing this, the hospital and the treating physician are removed from any possible legal actions, and the authorization form clearly outlines what will happen. Various parties around the globe are turning this into both a political and religious issue, which is something it should not be unless dictated by the patient and/or victim, but only on religious ground on that case alone. One can see where a party would have a problem with the removal of a feeding tube, as currently being played out in the Terry Schiavo case, as death by starvation could be described as some as a form of torture. But, in order to be torture, the patient would have to be cognitive and feel, or realize, that pain was being inflicted via a lack of food. The argument can then be made that while sensory receptors do register pain, and nerves would send signals to the brain, a lack of function within the cerebral cortex would not allow for registration. But, that goes far beyond the fact. The issue at hand is the legality, and who is flipping the switch. In this case, Dr. Pandya presents a proposal worth looking at, and noteworthy for revisions to take place on existing contracts if it has not been layed-out already. Also, it should be noted that it is the responsibility of various factions in the legal community to take a neutral stance on the matter, unless acting as an advocate for one side of the other, and in that case, that it is made perfectly clear.

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