Law Reform Proposal: Personalized Declaration of Death
| Author | Craig Mara |
| Position | LLB (Soton) |
| Pages | 11-22 |
(2021)
Vol. 11
11
Law Reform Proposal: Personalized Declaration of Death
Craig Mara
*
Abstract
As medical sophistication has pro gressed, a growing portion of the population has, perhaps iron ically, begun to
question whether they would wish to be subject to some techniques of preserving l ife and whether they still
believe that death is the worst-case scenario. However, securing a death that the patient may deem more dignified
is a difficult and perhaps impossible task. This is because the law is systemically biased in favour of the
preservation of life and seeks to impose a uniform definition of what death should mean to every individual.
The purpose of this paper is to propose a shift in the legal perception of dea th from that of th e objective to the
subjective. This paper proposes an amendment to the Mental Capacity Act that would bolster individual
autonomy surrounding death and allow a capacitous patient to exercise a power similar to that of an Advance
Directive. This directive would dictate the p oint a t which the medical team will be permitted to harvest the
organs of the patient and treat them as if they have died. A patient may define their future death as one of three
previously recognized options: Brainstem Death, Cardiopulmonary Death, and a Permanent Vegetative State.
Introduction
he purpose of this paper is to propose a reform to the clinical process of diagnosing
death that will ease the identification of the point at which death has occurred. To
accomplish this, the power to define death must be taken from the medical
practitioners and given to the autonomous patient. In operation, this power will be akin to
that granted by the Mental Capacity Act 2005 (MCA) to provide an advance decision
regarding the refusal of treatment.
1
However, the patient will have the power to define the
state at which the medical team may be permitted to treat them as if they have already died,
as opposed to the power to list the specific treatments they would refuse toward the possibility
of a resultant death. This difference is slight but crucial.
In the United Kingdom, no statutory definition of death exists as of this writing.
2
Thusly, the
determination and diagnosis of the death of a patient is a clinical decision to be made under
many exterior influences. These include those such as: public perception; the religious
leanings of not only the doctors themselves but also of the patient; and whether the patient is
an organ donor. The potentially opposing nature of these differing views of death may be
difficult to reconcile in an overarching manner. For instance, the declaration of Brainstem
Death (BSD) as the medically accepted criteria for a death diagnosis has been met with
backlash as the general public may be reluctant to accept the harvesting of organs from a
patient whose heart is still beating.
3
Strict adherence to this Dead Donor Rule, the rule that
prevents donors from being killed in order to obtain organs,
4
can lead to a damaging anoxic
*
LLB (Soton)
.
1
Mental Capacity Act 2005, s 2 4.
2
Emily Jackson,
Medical Law: Text, Cases and Materials
(5th edn, Oxford University Press 2019) 629.
3
ibid.
4
John A Robertson, ‘Delimiting the Donor: The Dead Donor Rule’ (1999) Hastings Centre Report 6, 6.
T
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