Sometimes it helps to have a quasi-judicial body say something that ought to be obvious.  The Consent and Capacity Board has released two rulings that make it clear that when a patient is dead, there is no longer any such thing as “treatment.”  (Re: UH released October 28^th and Re EI released Sept 30^th.)  This means that there are no treatment decisions that need to be made, which in turn means that patient or substitute consent are not an issue either.  This in turn means that the Consent and Capacity Board has no role to play.  At issue are situations where a patient has been declared brain dead, or neurologically dead, but where the patient’s body continues to be maintained on life support.

I have been in a conference room in the ICU when a harried Intensivist has burst in saying “The family won’t give me consent to remove life support – but the patient is dead.”  It is a physician’s role to determine death – and in Ontario Neurological death – is death – regardless of whether that patient’s body is mechanically sustained (calling it “life support” can add to the confusion.)  So, to put things bluntly – there is no longer a person – a patient, for whom treatment might or might not be needed and for whom medical decisions might need to be made.  Rather, there is a former patient’s body.  This can certainly be hard to accept, from a family’s perspective their loved one may look identical now (neurologically dead) to the way he looked yesterday when there was still some neurological activity.  But from a health care perspective, there is no longer a patient.

The neurological determination of death, however, raises larger issues.  If a person has died when the brain has died – and yet the body can, albeit with support, in some sense continue to function, that raises the possibility that the “person” could die even earlier, even before the brain has died.

“A vegetative state is absence of responsiveness and awareness due to overwhelming dysfunction of the cerebral hemispheres, with sufficient sparing of the diencephalon and brain stem to preserve autonomic and motor reflexes and sleep-wake cycles. Patients may have complex reflexes, including eye movements, yawning, and involuntary movements to noxious stimuli, but show no awareness of self or environment. “  http://www.msdmanuals.com/professional/neurologic-disorders/coma-and-impaired-consciousness/vegetative-state-and-minimally-conscious-state

So what exactly, is a person?