'Brain-dead' definition flawed, says ethicist

PATIENTS in intensive care are being declared brain dead for organ donation when they may still be legally alive, the Melbourne bioethicist Nicholas Tonti-Filippini says in a new book.

He says medical practice has moved ahead of the law by accepting a lesser standard of brain death than the law prescribes: the irreversible loss of all brain function.

A new standard has taken hold in intensive care units in which the crucial aspect is absence of consciousness, Professor Tonti-Filippini said.

''They are diagnosing brain death while there is still some mid-brain function. They say 'so what?', because the person is not conscious,'' he said.

 

If the mid-brain was functioning, then the brain would still control some bodily functions such as hormone production and blood pressure control. The only way to be certain was an imaging test that showed there was no blood flow to the brain, he said, but most Victorian hospitals used a clinical test for brain-stem function instead.

A spokesman for the intensive care society that establishes the brain death criteria (ANZICS), Associate Professor Bill Silvester, said Professor Tonti-Filippini was wrong, and potentially putting at risk the lives of critically ill people awaiting organ donation.

Professor Silvester, of the Austin Hospital, said a recent World Health Organisation forum on brain death explicitly regarded the ANZICS criteria as ''an exemplar of rigour''.

He said clinical testing, such as breathing, was the main way to determine death, including the mid-brain. The only need for extra testing, such as blood flow, was when clinical criteria could not be resolved. No patient had ever recovered when the clinical determination of brain death had been conducted correctly.
''ANZICS believes these unsubstantiated claims by Professor Tonti-Filippini risk damaging public confidence in a very rigorous process,'' he said.

But Professor James Tibbals, deputy director of intensive care at the Royal Children's Hospital and its medical director of organ donation, has endorsed Professor Tonti-Filippini, arguing that the current ANZICS test for brain death is neither legal nor ethical, and that most donors cannot be proven to be truly dead when organs are removed.

He said in a 2008 scientific paper that the blood-flow test was the only safe and reliable one, and was relatively simple and cheap.

The clinical tests used in most Victorian hospitals, such as testing breathing, could be misleading, as well as harmful or fatal for the patient. All the experts agreed that the absence of blood flowing in the brain meant irreversible loss of all brain function and therefore the patient was definitely dead. But requiring this stricter understanding meant organs could not be transplanted in some circumstances when they were now, which is why the donor community disliked Professor Tibbals' stance.

Professor Tonti-Filippini said the new definition, which had crept in gradually with no watershed moment, was of particular concern to religious people.

''It's enormously significant to the church because people are being diagnosed as dead and their organs are being taken when, as a matter of faith, you'd say they were alive,'' he said.

Most religious people understood death as the separation of soul and body, and accepted that had occurred with the irreversible loss of all brain function. But under the consciousness model a person could be declared dead while the hormones still worked and blood pressure was still controlled by the brain.

''I would say such a person is severely disabled, but you can't say dead,'' he said. ''We have moved from wanting to be absolutely certain that this person is dead to saying, 'This person is in such a state they might as well be dead'.''

He said religious people should insist on further tests showing there was no blood supply before endorsing organ donation.