Legal and Ethical Considerations for Requiring Consent for Apnea Testing in Brain Death Determination. Issue 6 (2nd June 2020)

• Record Type: Journal Article
• Authors: Berkowitz, Ivor; Garrett, Jeremy R.
• Is Part Of: American journal of bioethics. Volume 20:Issue 6(2020)
• Page Start: 4
• Page End: 16
• Publication Date: 2020-06-02
• Subjects: Apnea test -- brain death -- consent -- organ donation; Bioethics -- Periodicals; Medical ethics -- Periodicals; 174.957
• DOI: 10.1080/15265161.2020.1754501
• Languages: English
• ISSNs: 1526-5161

Abstract

Abstract: The past decade has witnessed escalating legal and ethical challenges to the diagnosis of death by neurologic criteria (DNC). The legal tactic of demanding consent for the apnea test, if successful, can halt the DNC. However, US law is currently unsettled and inconsistent in this matter. Consent has been required in several trial cases in Montana and Kansas but not in Virginia and Nevada. In this paper, we analyze and evaluate the legal and ethical bases for requiring consent before apnea testing and defend such a requirement by appealing to ethical and legal principles of informed consent and battery and the right to refuse medical treatment. We conclude by considering and rebutting two major objections to a consent requirement for apnea testing: (1) a justice-based objection to allocate scarce resources fairly and (2) a social utility objection that halting the diagnosis of brain death will reduce the number of organ donors.