Posted on March 31, 2017 at 4:30 AM
In November 2015, the Nevada Supreme Court decision in Aden Hailu cast serious doubt on the legitimacy of prevailing measures for determining and declaring death on the basis of neurological criteria.
To eliminate this uncertainty, a new bill (A.B. 424) seeks to clarify:
1. Consent is not required to administer tests to determine brain death.
2. After brain death is determined, treatment must be withdrawn within 24 hours.
3. Brain death must be assessed in accord with the 2010 American Academy of Neurology guidelines.
Clarifying that consent is not required is a good idea. While many clinicians already proceed as if that were true, some do not. Moreover, families have sought and obtained injunctions (temporary and sometimes permanent) in Virginia, Montana, California, and Kansas preventing administration of the apnea test without surrogate consent.
Requiring that treatment be withdrawn within 24 hours eliminates the possibility of a longer period of accommodation. While accommodation is legally required in only IL, CA, NJ, and NY, facilities elsewhere often provide that. That accommodation sometimes exceeds 24 hours.
It is important to be precise in identifying the clinical standards by which brain death must be measured. A reference to “generally accepted standards” is not sufficient in light of significant variability. On the other hand, the bill seems to require use of the AAN standards for determining brain death “in adults” even when the patient is a child.