Legal Standards for Brain Death and Undue Influence in Euthanasia Laws
A major appellate court decision from the United States seriously questions the legal sufficiency of prevailing medical criteria for the determination of death by neurological criteria. There may be a mismatch between legal and medical standards for brain death, requiring the amendment of either or both. In South Australia, a Bill seeks to establish a legal right for a defined category of persons suffering unbearably to request voluntary euthanasia. However, an essential criterion of a voluntary decision is that it is not tainted by undue influence, and this Bill falls short of providing adequate guidance to assess for undue influence.
KeywordsBrain death Determination of death by neurological criteria End-of-life Life-sustaining treatment Uniform Determination of Death Act American Academy of Neurology Voluntary euthanasia Voluntariness Undue influence
Legal Standards for Brain Death: In re Guardianship of Hailu, 361 P.3d 524 (Nev. 2015)
A growing number of court cases in the United States challenge the legal status of brain death. This challenge has two parts. First, these cases question whether commonly used medical criteria for measuring brain death meet the legal requirement of being “medically accepted standards.” Second, these cases question whether commonly used medical criteria for measuring brain death are rigorous enough to satisfy the legal requirement of measuring “irreversible” cessation of “all” functions of the “entire” brain.
Most of these cases have not resulted in a judgment. They are typically voluntarily dismissed after the patient is subsequently declared dead according to cardiopulmonary criteria. Two of these cases (both involving the high-profile conflict regarding Jahi McMath) are still being litigated in California. But at the end of 2015, the Supreme Court of Nevada issued a published decision in a case challenging the legal status of brain death. This is a significant judicial opinion that questions the legal sufficiency of prominent medical brain death guidelines.
For legal and medical purposes, a person is dead, if the person has sustained an irreversible cessation of:
Circulatory and respiratory functions; or
All functions of the person’s entire brain, including his or her brain stem.
A determination of death made under this section must be made in accordance with accepted medical standards.
The drafters wanted to leave the medical profession freedom and discretion both to formulate acceptable medical practices and to update them with new biomedical knowledge, diagnostic tests, and equipment.
While this seems like a prudent approach, it created two risks. First, leaving the tests and procedures undefined created uncertainty over which tests and procedures were “medically accepted standards.” Second, leaving the tests and procedures undefined created a risk that even clearly identifiable “medically accepted standards” might not satisfy demands of the statutory language. The Supreme Court of Nevada strongly suggested (though did not hold) that both of these risks have now materialized.
Factual Background: Aden Hailu
On April 1, 2015, twenty-year-old university student Aden Hailu was admitted to Saint Mary’s Regional Medical Center in Reno, Nevada. She complained of abdominal pain. But clinicians could not determine the cause of that pain. So, they decided both to perform an exploratory laparotomy and to remove her appendix. Unfortunately, immediately after the surgery, Hailu suffered severely low blood pressure and “severe, catastrophic anoxic or lack of brain oxygen damage.” Two weeks later, Hailu’s brain function was minimal and “rapidly declining.”
Six weeks after that, on May 28, 2015, Saint Mary’s clinicians administered an apnoea test over persistent objections by Hailu’s father. They diagnosed Hailu as dead pursuant to neurological criteria (brain dead). On June 2, 2015, Saint Mary’s clinicians told Hailu’s father, Fanuel Gebreyes, that they intended to discontinue Hailu’s ventilator and other physiological support.
Dispute Over Brain Death
Hailu’s father distrusted the brain death diagnosis and opposed the hospital’s plan. He even accused the hospital of wanting to “pull the plug” on Aden to cut costs. So, Hailu’s father filed an emergency motion asking the Washoe County District Court for a temporary restraining order enjoining Saint Mary’s from discontinuing physiological support. He also sought an order requiring the hospital to provide thyroid hormone treatment and to perform a tracheostomy to allow Hailu to be transferred from the hospital.
At the June 18, 2015, hearing on this motion, the parties were able to reach an agreement. So, the court dismissed the matter. Specifically, the hospital stipulated to continue physiological support until July 2, 2015, to allow Hailu’s father to obtain an independent neurological opinion. In fact, Hailu’s father failed to obtain that second opinion. Instead, on July 1, 2015, he filed another emergency petition seeking an “Order Authorizing Medical Care, Restraining Order, and Permanent Injunction.”
The District Court held hearings on the second motion on both July 2 and July 21, 2015. Hailu’s father introduced evidence from three expert witnesses, none of whom was a neurologist. He argued that Hailu was still alive. And he presented a plan to transfer Hailu to Las Vegas. The hospital, on the other hand, argued that Hailu was dead. It introduced evidence from three expert witnesses, including a neurologist.
Saint Mary’s neurologist, Aaron Heide, testified that he applied the American Academy of Neurology (AAN) guidelines to Hailu to determine if she was brain dead. He further testified that she met all three key measures. First, she was in a coma and unresponsive. Second, there was no brainstem activity (as determined by an exam of her reflexes, eyes, ears). Third, she could not breathe on her own (as determined by an apnoea test). A second hospital witness, a critical care physician, testified that Saint Mary’s did the AAN tests “by the book exactly how you should do it.”
Lower Court Opinion
On July 30, 2015, the District Court ruled in favour of Saint Mary’s, because the “overwhelming weight of the credible evidence” was that Hailu was dead. It found that the hospital physicians had followed the AAN guidelines. This automatically meant, the court further found, that Saint Mary’s determination of death was made “in accordance with accepted medical standards.” The District Court concluded from its findings that Saint Mary’s met the statutory requirements of the UDDA. But despite ruling in favour of Saint Mary’s, the District Court granted Hailu’s father an injunction pending appeal to the Supreme Court.
Supreme Court Decision
Hailu’s father appealed the District Court’s order to the Supreme Court of Nevada, the state’s highest court. The Supreme Court reversed the District Court and held that it should have granted the temporary restraining order to Hailu’s father.
The Supreme Court determined that the central question in the case was whether the AAN guidelines satisfy the legal requirements for death under the UDDA. The District Court had focused solely on whether Saint Mary’s examination of Hailu satisfied the AAN guidelines. But the District Court did not examine the legal sufficiency of the guidelines themselves. Specifically, the District Court had not examined whether the AAN guidelines are “accepted medical standards.” Furthermore, even if the AAN guidelines were “accepted medical standards,” the District Court had not examined whether they adequately measure what the UDDA demands: “irreversible” cessation of “all” functions of the “entire” brain.
The Supreme Court did not stop there. It tentatively concluded that the “accepted medical standards” required by the UDDA might be the “Harvard criteria,” not the AAN guidelines. Unlike the AAN guidelines, the Harvard criteria require confirmatory and ancillary testing such as EEGs. Furthermore, the Supreme Court cited a number of legal and medical sources suggesting that even if the AAN guidelines were “accepted medical standards,” the guidelines still might not satisfy the statutory language.
The Supreme Court of Nevada made no definitive judgment about the legal status of the AAN guidelines. It held that the evidentiary record created in the District Court was insufficient to draw any conclusions about their legal adequacy. So, the Supreme Court remanded the case back to the District Court to make further factual findings. Notably, the Supreme Court placed the burden of proof on Saint Mary’s either to establish the legal sufficiency of the AAN guidelines or to otherwise establish that Hailu was dead.
Lower Court Proceedings After Remand
Pursuant to the Supreme Court’s mandate, back at the District Court Saint Mary’s had to establish (1) that the AAN guidelines measure irreversible cessation of all functions of the entire brain and (2) that the AAN guidelines are considered accepted medical standards. So, the District Court scheduled hearings to determine whether the AAN brain death guidelines (on which Hailu had been declared dead) conform with the UDDA.
But before these hearings could be concluded, Hailu’s heart stopped. Efforts to revive her failed. On January 4, 2016, Hailu met the alternative prong for the determination of death under the UDDA (irreversible cessation of circulatory and respiratory functions). Thus, the “brain death” issue was moot.
Significance of the Decision
This case has several important implications. First, it has increased the rate of family–clinician conflict across the United States. The case has been widely reported in the media. Its salience in the public consciousness has been causing more families to distrust the brain death diagnosis. Second, this case demonstrates just how slow and cumbersome the court system is for resolving bioethics disputes. Even had the hospital ultimately prevailed on remand, Hailu would have been in the hospital for eight months after being determined dead.
The third and most important implication of the case is its impact on the blossoming brain death debate. This case adds a formal legal challenge to already existing medical and bioethics challenges. Dissent is growing in both breadth and cogency. Now, a state’s highest court has validated concerns over the legitimacy and adequacy of prevailing medical standards for determining brain death.
— Thaddeus Mason Pope
The Voluntary Euthanasia Bill 2016 (SA): Inadequate Consideration of Undue Influence Provisions
The South Australian House of Assembly is once again being called upon to consider the legality of voluntary euthanasia with the introduction of the Voluntary Euthanasia Bill 2016 (SA) on February 11, 2016, by Labor parliamentarian Steph Key. Her current Bill seeks to establish a legal right for a defined category of persons suffering unbearably to request voluntary euthanasia (Voluntary Euthanasia Bill 2016 (SA) ss 8(a), 18(1)(a)–(b)).
The euthanasia issue is not new to South Australia. Over the past twenty-one years, twenty-two Bills were tabled in Parliament aiming to legalize the practice in some way. Although the majority lapsed due to prorogation, it is important to highlight that over the years there has been a marginal shift in attitudes towards legalization of voluntary euthanasia in Parliament, evidenced by change in voting practices. For instance, the Voluntary Euthanasia Bill 1995 (SA) was rejected by a strong margin of thirty votes against and twelve in favour. In contrast, the Consent to Medical Treatment and Palliative Care (Voluntary Euthanasia) Amendment Bill 2008 (SA) narrowly failed the third reading by two votes.1
Whilst this apparent shift in support cannot be taken as foretelling of how this Bill will be received, it is potentially significant and may have an influential effect on the outcome of this Bill, possibly making South Australia the first state in Australia to decriminalize euthanasia.2 However, there are some critical shortfalls with the Bill that require further consideration. The most ostensible issue being it fails to provide adequate protection of a voluntary decision.
Overview of Existing Law
Prior to engaging in discussions about the key provisions in the Bill, it is first necessary to outline the parameters of existing law for persons subject to “unbearable and hopeless suffering.” In South Australia, suicide is no longer a crime (Criminal Law Consolidation Act Amendment Act 1983 (SA) (CLCA)). However, both assisted suicide and voluntary euthanasia are offences and punishable under state criminal law (CLCA ss 11, 12, 13A). Therefore, relevant to this discussion, a doctor cannot lawfully administer a lethal injection or provide a person with the means to access lethal medication to self-ingest, as these practices are outside the parameters of lawful conduct.
Statutory Protection for Doctrine of Double Effect
Most of the persons who will come under the purview of the Bill will be in the terminal phase of a terminal illness, and existing treatment options available to them include, but are not limited to, palliative care. South Australia is one of the few jurisdictions in Australia to have enacted a statutory version of the common law doctrine of double effect (The Consent to Medical Treatment and Palliative Care Act 1995 (SA) (Consent Act) s 17(1)(a)–(c); see also, R v Adams (unreported, Central Criminal Court, Delvin J, 9 April 1957). While this provision largely establishes a medical defence for doctors, it is still a treatment option available to persons in South Australia. The requirements for the defence are found under section 17 of the Consent Act.
The Consent Act provides a medical defence for doctors if they provide medical treatment to a person in the “terminal phase of a terminal illness” with the intention of relieving pain or distress but inadvertently hasten that person’s death (see also s 4 Consent Act for definitions of “terminal phase” and “terminal illness”). Additional requirements to satisfy the defence are that treatment must be administered with consent (s 17(1)(a)), “in good faith and without negligence”(s 17(1)(b)), and according to “professional standards of palliative care” (s 17(1)(c)).
Section 17 is yet to be judicially considered, and as a result the actual scope of the provision is unclear. White, Willmott, and Ashby (2011) argue that section 17 of the Consent Act is more stringent than the common law doctrine of double effect due to the requirement to act commensurate with applicable standards of palliative care. Moreover, it remains unclear whether the Consent Act has supplanted the common law doctrine of double effect or whether they operate concurrently in South Australia.
It is necessary to note that the Consent Act explicitly excludes section 17 as legalizing euthanasia or assisted-suicide, and the Bill does not supersede section 17 (Consent Act s 18; see also Voluntary Euthanasia Bill 2016 (SA) sch 1, pt 3). Importantly, the Bill provides doctors with the right to conscientiously object to participating in euthanasia (s 21). This means that doctors opposed to euthanasia are not required to participate under the Bill and can treat terminally ill patients under section 17 instead, thus avoiding associated ethical dilemmas that arise.
Right to Refuse Medical Treatment
Another well-established feature of medical practice applicable to this discussion is the unequivocal right of a competent adult to refuse medical treatment. This includes artificial hydration and nutrition and food and fluids in general (Brightwater Care Group (Inc) v Rossiter  WASC 229; H Ltd v J  SASC 176). This right applies to competent adults regardless of whether they are suffering with a terminal illness, are hopelessly ill, or are otherwise in good health. The judicial response to adult refusal of medical treatment cases is that when the state’s interest in preserving life conflicts with an adult’s right to self-determination, then the latter usually prevails (Re T (Adult: refusal of medical treatment)  C.A. Fam 95, 112; H Ltd v J  SASC 176). However, in this context, this right to self-determination is not absolute, and there are exceptions to this rule where the state’s interest may prevail (see especially Lu 2010).
As demonstrated, there are limited options available under existing law for competent persons with “unbearable and hopeless suffering.” If they are terminally ill, then they may fit under the purview of section 17(1) of the Consent Act and receive pain relief, which may inadvertently hasten the dying process. Alternatively, if they fall outside the purview of section 17(1), then their options are limited further, but they can refuse medical treatment, including hydration and nutrition.
However, for some, these options are less than desirable. Much of the controversy with existing law revolves around the issue that it curtails the right to exercise self-determination and die a dignified death, especially when faced with unbearable suffering. The Bill aims to remedy this limitation by expanding available options.
Eligibility Criteria and Safeguards
Under the Bill a competent adult, who is subject to “unbearable and hopeless suffering,” who has decisional capacity and has lived in South Australia for at least six months, may make a formal request for voluntary euthanasia (ss 4, 5, and 10). To avoid potential definitional ambiguity regarding the eligibility criteria, the Bill explicitly provides that unbearable suffering can be either mental or physical (s 4(2), see also South Australia, Hansard, House of Assembly, 11 February 2016, 4228 (Steph Key)). Moreover, a person’s suffering is “hopeless” “if there is no reasonably available medical treatment that would reduce or relieve suffering to a level bearable to the person”; “unbearable” is not determined objectively (s 4(2) and 4(4)).
It is important to recognize that the Bill explicitly empowers the individual to be the ultimate arbiter of what is bearable and unbearable to them, thus avoiding issues that may arise with how to determine suffering by applying an objective standard.
The Bill is consistent with other jurisdictions that have legalized euthanasia and includes many safeguards. A key provision under the Bill is that an eligible person must be assessed by two independent medical practitioners, who each must provide written information to the person about the diagnosis and prognosis of their illness, injury, or condition as well as the forms of treatment that are reasonably available to them (ss 12(1)(c)(i),(ii) and 13(1)(d)(i),(ii)). Moreover, the primary medical practitioner must provide written information about the proposed euthanasia procedure and risks associated with it (s 12(c)(iii)). Referral to a psychiatrist is discretionary under the Bill if either medical practitioner suspects the person is not of sound mind, there is doubt regarding their decision-making capacity, or they suspect the person is acting under duress, inducement, or undue influence (ss 12(2), 13(2)–(3), and 14). The Bill requires a competent adult to witness the request being made. The witness can be unknown to the person, but certain persons are explicitly excluded, such as persons who are a direct beneficiary of or have an interest in the estate of the person concerned (s 15(2)(b)). Importantly, the witness must be of the opinion that the person requesting euthanasia was not subject to undue influence (s 15(3)(b)(v)). Finally, forty-eight hours must lapse between the time the request is granted and the administration of euthanasia (ss 19(1)(a)(d) and 20(1)(d)).
As briefly discussed, it appears that consideration has been provided under the Bill to mitigate risks often associated with legalizing voluntary euthanasia. Whilst some consideration has been given to assessing for undue influence (ss 12(2), 13(2)–(3), 14, and 15(3)(b)(v)), these provisions fall short of providing adequate protection.
Undue Influence Provisions
The doctrine of undue influence serves to protect a voluntary decision by recognizing that subtle forms of improper pressure can vitiate a voluntary decision under some conditions. Given the nature of euthanasia—lawful killing in controlled circumstances—it is imperative that the legal response in assessing for undue influence be heightened.
The legal response under the Bill has been to make it an offence to induce a person by undue influence to make a voluntary euthanasia request. The maximum penalty if convicted is ten years imprisonment (s 25). As discussed in the preceding paragraphs, there are requirements to assess for undue influence prior to a request being authorized; these form part of the fundamental safeguards around freedom of choice.
It is not the criminalization of undue influence that raises concern. The concern lies in the procedures mandated by the Bill to assess for undue influence during the request-making process, which is where protection is needed the most—prior to approval being granted. Under the Bill, there is no guidance offered or definition of what undue influence is, although it is critical to the operation of the Bill and protecting a voluntary decision.
The Bill assumes that medical practitioners and laypersons (perhaps called to witness a request) know what undue influence is. What is concerning is that undue influence is a complex legal term that defies specific definition. (For judicial discussion of the doctrine of undue influence, see Royal Bank of Scotland v Etridge  4 All ER 449.) What may constitute undue influence under one set of circumstances may not in another (see, for example, Re T (Adult: refusal of medical treatment)  C.A. Fam 95, 113). This can only be determined by a thorough understanding of many factors external to the patient, including the nature of the relationship between the parties and the will of the influenced person (Re T (Adult: refusal of medical treatment)  C.A. Fam 95, 113–114). It cannot be assessed on a whim, as it requires careful, thorough consideration. Under the Bill, no such consideration is afforded. There is no guidance provided on how to assess for undue influence. Arguably providing meaningless protection for a voluntary decision.
Include a broad definition of undue influence;
Include statutory guidelines regarding how to assess for undue influence, including factors that would lead to a suspicion that undue influence is present; and
Include provisions that facilitate proper assessment of factors external to the patient.
It can only be hoped that as the Bill progresses through Parliament, undue influence is given proper consideration for the sake of protecting a voluntary decision.
— Michaela E. Okninski
See South Australia, Hansard, House of Assembly, 27 July 1995, 2991; South Australia, Hansard, Legislative Council, 11 November 2009, 4035.
The Northern Territory, Australia, was the first jurisdiction in the world to legalize voluntary euthanasia as an Act of Parliament; see Rights of the Terminally Ill Act 1995 (NT). However, due to Australia’s Constitutional Arrangements, the Commonwealth Government limited the scope of the Territories’ legislative power to restrict them from enacting laws to legalize voluntary euthanasia or physician-assisted suicide; see Euthanasia Laws Act 1997 (Cth). The Australian States fall outside the purview of this exercise of Federal Power, so it is unlikely that the Commonwealth Government will be able to repeal any euthanasia statute passed by the states.
- Lu, A. 2010. End of life directions and self determination—H Ltd v J. Australian Health Law Bulletin 18(7): 93–108.Google Scholar