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3.1 In Discussion paper 71 the first critical question identified was whether, and if so, under what circumstances, the medical practitioner would be entitled to disconnect the life-sustaining system of a person who was being kept 'alive' by a heart lung-machine or ventilator.
3.2 In order to answer this question it was deemed necessary to determine precisely when it is that death sets in. Readers were referred to the fact that people, especially moralists and persons with strong religious beliefs, often speculate in a metaphysical way about the concepts of "life" and "death". Quite often qualities are attributed to the concept of "life" that gives it an esoteric meaning, for example that life should be equated with a decent existence or one associated with consciousness, and on this basis conclusions are then drawn. It was however emphasized that the jurist must inevitably follow a more sober, certain and accordingly more clinical approach - just like the medical scientist.
3.3 Over the years the views of medical scientists in regard to the question as to precisely when it is that death sets in have differed[52]. However, since 1980 there has been broad agreement by the medical profession that brain death equals death[53] ie that irrespective of whether other criteria apply, death definitely sets in when the brainstem ceases to function.
3.4 However, the criteria for diagnosis and the existence of legal definitions of brain death still vary between countries. The definition of brain death in the United States of America for instance requires"... the confirmed death of the whole brain as indicated by clinical tests and a flat waveform on the electro-encephalogram". In the United Kingdom the position is different: "..the definition requires clinical evidence confirming death of the brainstem which supports vital organs such as the heart and lungs".[54]
3.5 From a legal point of view, the so-called moment of death is, in the absence of a statutory or common-law definition, a still unresolved issue. In fact, the existing statutory and common-law sources on the matter reveal approaches which are to some extent inconsistent.[55]
3.6 Although the legislator had the opportunity to prescribe a test, it chose not to do so. The now repealed Anatomical Donations and Post Mortem Examinations Act [56] contained no criteria for the establishment of death. Section 3(2) of this Act inter alia stipulated that for purposes of tissue-removal the death of a person had to be established by at least two medical practitioners, one of whom shall have been practising for at least five years after the date on which he was registered as a medical practitioner. Establishment of the death of a person with the object of tissue removal in terms of this Act was therefore left entirely in the hands of the doctors. This approach has also been followed in the current Human Tissue Act.[57]
3.7 In so far as case law is concerned, the position has not been cleared up either. In S v Williams[58] the accused shot the deceased in the neck with the result that his jugular vein and carotid artery were severed. Medical help was summoned quickly and the patient, who had lost a great deal of blood and was unconscious, was connected to a respirator. The jugular vein and carotid artery were ligatured. After one day it was found that according to medical evidence the left side of the brain was dead and a day later no brain activity could be discerned. The brain stem was also dead. He was, however, kept 'alive' by artificial respiration for forty-eight hours, after which the respirator was disconnected on the instructions of the neurosurgeon, after consultation with two other neurosurgeons. Ten minutes later no heartbeat could be found.
3.8 The question was whether the accused had in fact caused the death of the deceased. The trial court regarded the moment of death as being of cardinal importance. Accordingly it found that death set in with the death of the brain stem, in other words at the moment when brain activity (including activity of the brain stem) ceased.
3.9 On appeal it was submitted that the trial court had incorrectly held that a person is legally dead when death of the brainstem occurs, even though the person's heartbeat and respiration have not yet ceased. According to this submission the accused was still alive when the respirator was disconnected and it was therefore the disconnection of the respirator that caused his death.
3.10 The Appellate Division did not consider it necessary to decide whether the medical approach concerning the moment of death, as reflected in the trial court's verdict, should be accepted in law as the moment of death. The Appellate Division dealt with this question on the basis of what was described as probably the traditional public policy on this question, namely that death occurs with the cessation of a person's respiration and heartbeat.[59] With respect, the mere question as to the existence in a patient of respiration and heartbeat cannot be a complete description of a clinical test for death. Many people experience cardiac arrest and respiratory failure for a few seconds or minutes after which normal functions are resumed. The traditional test referred to independent respiratory and circulatory functions.
3.11 Legal commentators have argued that brainstem death should be accepted and recognised as a legal criterion of death.[60] The Commission however decided that it was unnecessary for present purposes to choose or to justify one or the other of these tests. It is enough to accept that death occurs with irreversible cessation of spontaneous respiratory and circulatory functions or with irreversible brainstem-death. Whether one or the other has occurred is a question of fact and depends on clinical proof.
3.12 The problem, as explained in Discussion Paper 71, was that quite often a person who is already dead according to the above-mentioned tests is kept 'alive' artificially [61]by a ventilator, that is to say, he or she is ventilated and the circulatory functions are kept going. If it could however be proved that brainstem death has occurred, such a person would, in the opinion of the Commission, already be legally dead. Alternatively, if no apparatus is available to prove brainstem death, the Commission agreed with the opinion of Dorfling:[62]
A person will be considered dead if in the announced opinion of a physician based on ordinary standards of medical practice, he has experienced an irreversible cessation of spontaneous respiratory and circulatory functions. In the event that artificial means of support preclude a determination that these functions have ceased, a person will be considered dead if in the announced opinion of a physician, based on ordinary standards of medical practice, he has experienced an irreversible cessation of spontaneous brain functions. Death will have occurred at the time when the relevant functions ceased.
3.13 The Commission therefore contends that according to the present legal rules the medical practitioner would be entitled to disconnect the life-sustaining system of a person if it could be proved that the person was clinically dead according to the abovementioned tests, but was being kept 'alive' by a heart-lung machine or ventilator. There is no rule in our law which requires any person to artificially bestow certain signs of life on a person who is already dead. The respiration and heartbeat that seemingly exist are artificial and do not represent life. To disconnect the life-sustaining system would therefore not be to cause death.
3.14 In S v Williams[63] the Appellate Division came to the same conclusion. The court held that the disconnection of the respirator could not be seen as the act that caused death, but that it was merely the termination of a fruitless attempt to save the person's life. This is not what killed him. It is the action of the accused that caused his death.
3.15 The disconnection of the respirator in the case currently under discussion is therefore not an action which can be described as mercy killing or euthanasia.
3.16 The Commission concluded that it follows logically that where the medical practitioner responsible for the treatment of the patient concerned is convinced that the patient is clinically dead according to any of the tests described above, the disconnection of the respirator will neither be unlawful for the purposes of criminal law nor for the purposes of private law.
3.17 Respondents who commented on this issue seem to agree with the Commission's view[64]. The opinion was expressed that one should not be obliged to use medical means that are merely death-delaying, preventing an irreversible dying process from following its natural course.[65] It would furthermore be morally irresponsible to use available resources (both personal and material) to continue the treatment of such patients.[66] Respondents furthermore supported the idea that treatment of a brain dead person should be continued in order to enable transplants to take place.[67] Caution was however expressed that the medical practitioner should at all times work in agreement with the family and a multi-disciplinary team.[68]
3.18 In so far as the formalisation of the position in legislation is concerned, different views were expressed. Respondents expressing the minority view commented as follows:
i) The present law seems to be functioning very satisfactorily as understood by transplant surgeons and any further elaboration would be unnecessary.[69] Experience has shown that the law is easily explained to relatives and any difficulty is due to an emotional acceptance of the situation, not any legal problem.
ii) It would seem sufficient to provide for extra-legal education in order to avoid confusion.[70] It is difficult to see how codifying the common law as it presently exists will enhance certainty.[71]
iii) The present legal position should not be formalised in legislation. An Expert Committee should be commissioned and authorised to make recommendations to the Minister of Health on possible amendments of the present legal rules applied to determine "brain death".[72]
3.19 The majority of commentators however supported the view that the position should be formalised in legislation. The following specific statements were made:
i) Legislation as proposed would be useful in clarifying the situation for both doctors and the families of patients.[73]
ii) Although it may be true that ideally the problem should be addressed by educating people, death is such a taboo in many communities that people are not interested in education of this nature while their loved ones are healthy. When they find themselves in a position where a loved one is brain dead they are so emotional that it is very difficult to provide the necessary education for them.[74]
iii) Extra-legal education should be provided to patients, families and doctors in addition to the legislation to promote understanding and knowledge of these rights. It should be a mandatory requirement for the training of medical practitioners.
iv) Mechanisms should be established to review the decisions of the medical practitioners and to obtain redress should these discretionary powers be abused.[75]
3.20 The Commission recommends that the present legal position regarding brain dead patients should be formalised in law as follows:
Conduct of a medical practitioner in the event of clinical death
2. (1) For the purposes of this Act, a person is considered to be dead when two medical practitioners agree and confirm in writing that a person is clinically dead according to the following criteria for determining death, namely -
(a) the irreversible absence of spontaneous respiratory and circulatory functions; or
(b) the persistent clinical absence of brainstem function.
(2) Should a person be considered to be dead according to the provisions of sub-section (1), the medical practitioner responsible for the treatment of such person may withdraw or order the withdrawal of all forms of treatment.
[52]Strauss, S A Doctor, patient and the law 3rd ed Pretoria J L van Schaik Publishers 1991 321(hereinafter referred to as "Strauss Doctor, patient and the law"); Benatar, S R "Dying and 'euthanasia'" 1992 SA Medical Journal 35; with the first heart-transplant operation, Professor Chris Barnard and his team used the following test: the absence of heart activity for five minutes, measured by an electrocardiograph, the absence of spontaneous respiration and the absence of reflexes(Barnard, CN "A human cardiac transplant: an interim report of a successful operation performed at Groote Schuur Hospital, Cape Town" 1967 SA Medical Journal 1271); The Society of Neurosurgeons of South Africa commented that at the time of this transplant the concepts of brainstem death had not been crystallised as they exist today.
[53]See Report of the Select Committee Appendix 5 at 70 for an outline of developments regarding medical science in this field.
[54]Report of the Select Committee Appendix 5 at 70.
[55]Van Oosten, FFW "Patient rights: a status report on the Republic of South Africa" in Law in Motion, International Encyclopedia of Laws World Conference 989(to be published) (hereinafter referred to as "Van Oosten Status Report") footnote 216 at 1022.
[56]Act 24 of 1970. This Act was repealed by the Human Tissue Act 65 of 1983. See further De Klerk, A "Transplantation of human tissue and organs in South African law" 1992 TRW 112.
[57]Act 65 of 1983.
[58]1986 4 SA 1188 (A).
[59]Supra at 1194 E-F.
[60] Van Oosten Status Report 1024 : The recognition and acceptance of brainstem death as a legal criterion for death would:
(a) remove brainstem dead patients from the realm of euthanasia and thus, narrow the scope of the euthanasia problem in respect of terminal patients to instances of patients in a vegetative state or terminal patients in a conscious state who are connected to life-support measures or who receive life-supporting medication and;
(b) accord with medical practice in instances of
(i) the transplanting of vital organs and;
(ii)the replacing of brainstem dead patients with patients with a prospect of recovery on respirators or ventilators in intensive care units where the demand for respirators or ventilators is greater than the supply.
[61]The Society of Neurosurgeons of South Africa drew attention to the fact that there is no "life" to be maintained after clinical death - one can at most, maintain functions of certain organ(s) in a brainstem dead patient.
[62]Dörfling, D F "Genadedood" in die strafreg - 'n regsfilosofiese en regsvergelykende perspektief (Unpublished thesis submitted in partial fulfilment of the degree Magister Legum) Faculty of Law Rand Afrikaans University 1991 at 157 (hereinafter referred to as "Dörfling").
[63]Supra.
[64]See eg Islamic Medical Association of South Africa; Christian Lawyers Association; Society of Neuro-surgeons of South Africa; Mpumalanga Provincial Government; Critical Care Society of South Africa; Society of Advocates Natal.
[65]M Lavies; Rev Justin Swanson who does not regard brain death as true death, but rather as a step in the irreversible process of dying, followed by death in the short term.
[66]Southern African Anglican Theological Commission (Cape Town); Final Exit-Zimbabwe.
[67]EMD Pope.
[68]Mandisa Sonqishe, Cancer Association; Barbara Steenkamp: Free State and Northern Cape region, CANSA; MASA.
[69]Dr T Germond et al.; Society of Neurosurgeons of South Africa.
[70]Rev Justin Swanson; Christian Lawyers Association.
[71]Society of Advocates of Natal; Hospital Association of South Africa.
[72]Department of Health.
See eg MASA; Southern African Anglican Theological Commission (Cape Town ); SA National Consumer Union; Prof JG Swart; Prof Geoffrey Falkson, Professor and Head: Dept of Medical Oncology, University of Pretoria; Prof FFW Van Oosten; United Christian Action; SACBC; Prof KRL Huddle.
[74]Alfred Allan.
[75]Lawyers for Human Rights: Aids and Human Rights Programme (hereinafter referred to as " Lawyers for Human Rights"); NCCPHN.
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