The concept of ‘Brain dead’ and ‘Organ Donation’ is inter linked when it comes to declaring a person dead in India and for donating his/her organs after life cease to exist. Traditionally speaking, a person is dead when his/her circulatory and respiratory functions terminates and are irreparable. But, brain death is legal definition of death. It is the ultimate scenario in which body becomes unresponsiveness due to no function of entire brain including brain stem. In Indian context, the term ‘brain dead’ is defined and linked with organ donation in the Transplantation of Human Organs Act, 1994.
For many years a continous debate is going on among medical proffessionals, educationists and other think tank group over taking off patient’s life support system after declaring brain dead. Recently, Kerala state in India became the first state to give liberty to doctors to take a patient who is declare brain dead to be taken off from ventilator system without family members consent. Earlier declaring someone brain dead is directly related to organ donation which means that if a person is declared as ‘brain dead’ but his family refuses to donate organs, then doctors had no option but to put patient on ventilator system and wait. This is known as Opt-In-System (Consent for donation is required). Under new state government order, before declaring a patient brain dead, they have to follow 10-step procedure and if it meets criteria, then treatment shall be discontinue and patient will be declare brain dead and that’s it. All the cardiorespiratory support and all treatment will be discontinue once brain stem death is declared. But before all of this, medical practitioner shall inform patient’s kin about the status of patient’s health in whom brain stem cell testing is being considered. There are certain test laid to determine brain activity with Apnoea test being the last one to determine brain stem reflex. To declare a patient ‘brain dead’, a panel of doctors need to perform a series of prescribed test twice within minimum interval of 6 hours and if the test result stands the criteria set out, then the panel must declare patient dead and all cardio-respiratory support must be discontinued.
Although medical professionals hail this decision as necessary and optimum use of life supporting system and by de – linking brain dead with organ donation, it would remove confusion in the minds of doctors and members of patient’s family. After Kerala Government’s decision, the onus of decision shall solely fall on doctor. But clearly, giving such life altering liberty to doctors is like them playing the role of God and needs to be look into and needs to make them accountable
BRAIN DEATH UNDER US MEDICAL LAW
In USA, the American Academy of Neurology holds the authority regarding brain death , its determination and guidelines to be followed by US hospitals. According to AAN, ‘Brain Death’ is mentioned under the Uniform Declaration of Death Act,1981 (UDDA) as ‘a person is dead when he has sustained irreversible cessation of all functions of the entire brain including the brain stem. According to this act, brain death and circulatory death is equivalent. However, in USA, ‘brain death’ is accepted as legal death. According to AAN guidelines on ‘Determining Brain Death in Adults’, a doctor will determine a patient who is brain dead by considering three steps. First, the person is in permanent coma, secondly, a patient’s brainstem reflexes have permanently stopped functioning and third, breathing is finally stopped. When all tests including Apnea test determing brain function is done on the patient and the physician arrives at the conclusion based on lab results that ‘there is no brainstem functioning happening in patient, he will declare him brain dead and call his time of death. He will then spend some time with dead patient’s relative to let them know of few decisions which they have to make regarding organ donation. If organ donation does not takes place, doctor will still turn off any cardio-respiratory mechanism regardless of relative’s wishes to keep patient on ventilator. In USA, there is only one state, New Jersey in physician is under legal obligation to keep brain dead patient on cardio- respiratory organs for as long as patient’s relatives wants. This scenario is different in India.
As already been discussed in Indian context, declaring a patient brain dead is linked to organ donation and if patient’s family relatives decline to donate organs due to emotions, hope or their religious beliefs doctor put him/her on ventilator system because there is no clarity on the next step the doctors need to take in case relatives of a patient decline to donate organs and also they fear of involving in any legal suit against them.
The intention behind delinking brain dead and organ donation is saving limited ICU facilities artificial respitarory instruments on sufferer which isn’t brain dead and in dire need to be given such treatment. Also, giving doctor’s the sole decision making power, emotional burden on family members can also be lift off as in most cases they are unable to take rational decision. However, there is also a flip side to it. Giving doctor so much power might go against ethics and wishes of deceased family member wishes. There are so many legal cases filed against medical professionals like doctors for medical negligence that certainly now such decision taken by doctor/s would certainly attract negligence. For example Dr. S Ganapathy filed an appeal in 2017 in the honourable Supreme Court against private hospitals for alleged practice of harvesting organs from ‘prematurely’ brain dead patients. In November, 2019 a bench comprised of the then Chief Justice R. Gogoi and Justices Deepak Gupta and Aniruddha Bose granted four week time to the petitioner to bring evidence on record to show instances when private hospitals have prematurely declared any patient brain dead as alleged in the petition.
In my opinion, Kerala government’s decision to separate declaring a patient brain dead from organ harvesting is a rational step. It is not only meeting international medical standards but also such a decision and execution of it is certainly going to save respiratory resources which are limited in India and can be of use to other patient in need. Apart from this, a concious and active efforts must be done by state and central government along with NGO’s and private entities to create awareness about active organ donation, its benefit of saving someone else’s valauble life and separating it from any sort of belief. Also, a uniform national policy must be framed to give physician power to take decision in declaring a patient brain dead after conducting necessary tests and creation of independent committees of doctors in every private and public hospital so that a unanimous deicision will be taken by them to declare a sufferer ‘brain dead’. But they also need to be held ‘accountable in case of any negligence occur’ Also procedure and rules also need to be declared by the medical and legal council as to the next step after a patient is brain dead and whether ‘organ donation of perfectly good organs must be done or not’ as this will save doctors from legal entanglement by the dead patient’s relatives.