Do clinicians need family consent to perform brain death testing on patients strongly suspected to be dead? U.S. jurisdictions are split on the answer to this question.
Courts in both Montana and Kansas have ruled that clinicians may not administer brain death tests over parental objections. In contrast, a Virginia court ruled that clinicians could proceed over parental objections. Similarly, last year, the Nevada legislature amended its state Uniform Determination of Death Act to provide that “determination of the death . . . is a clinical decision that does not require the consent of the person’s . . . representative.”
In short, we have a 2-2 tie. Is consent required?
- Montana: Yes
- Kansas: Yes
- Nevada: No
- Virginia: No
Objecting to brain death testing appears to be a new strategy on the part of some pro-life organizations: focus on asserting rights while the family still has some, BEFORE death is determined.
Interestingly, an analogous consent question was also raised in the high profile Alfie Evans case. In his February 2018 judgment, Justice Hayden wrote:
“It is, I think, no coincidence that F, whose primary position is that “no stone should be left unturned”, was resistant to the final MRI scan being undertaken. F, in my judgment, knew all too well, in the light of the earlier scans, what the latest MRI scan might reveal and, again for entirely understandable reasons, could not bear to confront it. As the Judge I did not have that option, for the reasons that I have set out. It was shortly after the final scan became available that F renewed his application for representation. I interpret that as a signal of his distress but not as an indicator of forensic vulnerability.”