In Need of Reappraisal? Examining the defensibility of the established definition and determination of death through its implications for persons with prolonged disorders of consciousness

Abstract

The practice of defining and determining ‘who is dead’ is no longer a medical or biological determination. It is instead a moral standpoint on what lives are not worth living; the traditional definition of death has been redefined and now retains merely a single foothold in biology. That single foothold seems to be the capacity to voluntarily respond above the level of reflex and may therefore explain how life support withdrawal is deemed defensible from living patients, even where their subsequent death is foreseen. Therefore, the practice impacts cognitive disability on the whole and not only those with prolonged disorders of consciousness, i.e., vegetative and minimally conscious state patients (PDOC patients). For example, how else could antibiotics be withdrawn from a dementia patient knowing that they will succumb to deadly infection? Nevertheless, this thesis explores the moral and legal justifiability of life support continuation decisions via a case study on PDOC patients. It seems that life support discontinuation from living patients who have lost the capacity to voluntarily respond also lose their personhood status: the recognition and endowment of equal moral and legal protection for those holding that inherently valuable characteristic of human life and may also demonstrate why the judgments’ oftennoted moral inconsistency cannot be explained by intention or causation-based arguments alone. Therefore, the thesis argues that at the heart of best interests decision-making regarding life support continuation is a hidden war on personhood in which further skirmishes include: identifying the indicia of personhood, the justifiability of life support withdrawal from (living) PDOC patients and assessing whether best interests assessments are indirectly discriminatory to them. The answers to these questions are vital for exploring whether the definition and determination of death needs to be reappraised by legislators and medical regulatory bodies. The thesis’ core question asks: is the definition and determination of death in England and Wales defensible, given its implications for PDOC patients? That core question is set within a philosophical framework to enable fair assessment which may also help answer whether such judgments can be accurately described as dilemmatic cases that employ values-based decision-making. Accordingly, the relationship between death, cognitive impairment and personhood is explored to challenge the adopted theory of social justice and demonstrate why it is not enough to assume that they are persons, nor that death’s definition and determination does not impact PDOC patients in law and medicine.

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ORCID for Hazel Biggs: orcid.org/0000-0002-4434-6543

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