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Presentation at the King Fahd Medical City Riyadh on 12th October 2008 by Dr Omar Hasan Kasule Sr. MB ChB (MUK), MPH (Harvard), DrPH (Harvard) Professor of Epidemiology and Islamic Medicine Institute of Medicine University of Brunei and Visiting Professor of Epidemiology University of Malaya WEB: http://omarkasule.tripod.com
OVERVIEW
Ethico-legal controversies about medical decisions for terminal critically ill patients center on the certainty of the occurrence of death. In this presentation we shall discuss the underlying ethical theory and principles and then use them in an analysis of the definition of death as well as legal decisions about life support and resuscitation. We shall then build on that foundation to discuss practical decisions on terminally ill patients taking into consideration the criteria of death, conservation of resources, and other legal considerations. This presentation is adapted from the author’s material published on his website.
1.0 UNDERLYING ETHICAL THEORY and PRINCIPLES
1.1 THE PURPOSE OF LIFE, massed hifdh al nafs
The primary purpose of medicine is preservation of life, hifdh al nafs. This implies that all possible and available means should be used to support life if life exists. For severely sick and terminal patients we may have to distinguish between ordinary and extra-ordinary means. The Law obliges physicians to offer ordinary means that are generally accepted as the standard of care according to the principle of custom, qa’idat al ‘aadat. Extra ordinary means involve costs, burdens, higher risks, and great inconvenience. Extra ordinary means are not obligatory. The Law does not oblige physicians to try means that are futile.
1.2 THE PURPOSE OF PRESERVING RESOURCES, maqsad hifdh al maal
The purpose of preserving life may contradict the purpose of preserving wealth. Life comes before wealth in the ordering of priorities. This however applies to expenditure on ordinary medical procedures and not heroic ones of doubtful value because that would be waste of wealth, israaf, that has been condemned.
1.3 THE PRINCIPLE OF CERTAINTY, qa’idat al yaqiin.
1.3.1 Issues of uncertainty: There are many decisions in terminal illness that cannot be made easily because of uncertainty. In what condition should artificial life support be instituted? When should artificial life support be terminated? How can a determination be made that further medical efforts are futile and focus should be on palliative care? What about life support measures that are beneficial in support of a specific physiological condition but because they have side effects result in no net benefit for the patient? What about support measures that just prevent further deterioration but do not reverse the existing tissue damage? Should the worth of the patient’s life be a factor in deciding to institute or end life support? Should life support be withheld or withdrawn on the basis of cost? Isn’t withdrawal of life support a form of euthanasia? How can physicians assess the best interests of the patient?
1.3.2 Certainty of death: The definition of death requires that there should be no doubts at all, al yaqeen la yazuulu bi al shakk. Of all available definitions of death, it is only the traditional definition of death as cardio-respiratory failure that is accepted by all. There is no doubt about its irreversibility. There is near unanimity that brain stem death is irreversible death. There is so far no medical technology that can reverse brain stem death. However use of higher brain death as definition of death is still controversial and is nowhere near unanimity. The implication of death definition is that once a person is declared dead with certainty, the withdrawal of life support is legally acceptable. We have to stick to the traditional cardio-respiratory arrest criterion or the brain stem death criteria until a new consensus or new evidence appears. The provision of the law is that existing assertions should continue in force until there is compelling evidence to change them, al asal baqau ma kaan ala ma kaana.
1.4 THE PRINCIPLE OF INTENTION
1.4.1 Autonomy decisions by competent adult patients: The principle of autonomy is subsumed under the principles of injury, qa’idat al dharar, and the principle of intention, qa’idat al qasd. The main issue to consider is whether the decision maker has good intention in terms of minimizing injury to the patient. The following autonomy issues arise: Who decides: the physician, the family, or the patient? What is done for incompetent patients or patients who are minors? Can patients refuse or accept withholding or withdrawing life support in advance? The person who makes decisions regarding life support should be with the most sincere intentions. The terminally ill patient, who takes a major risk, should make the final informed decisions after clarification of the medical, legal, and ethical issues by physicians and fuqaha. A patient who cannot speak could write their choices. Established sign language can also be accepted, al isharat al ma'ahudat ka al bayan bi al lisaan. However no assumptions should be made about the choices of a patient who is unconscious and cannot communicate in any way, la yunsab ila saakit qawl.
1.4.2 The role of the family: The family may request that life support be terminated if the patient is in pain or coma. Self-interest may motivate some members of the family and others with personal interest to hasten the legal death of the terminally ill patient.
1.4.3 The role of physicians: Physicians and other health care givers may abuse their professional privileges and kill whom they want. They could be bribed to kill people by either family members or others.
1.4.4 Prospective autonomy by the living will and power of attorney: The use of a living will has been proposed as a way around this. The living will is a form of prospective autonomy. The person writes a will while still healthy specifying preferences for medical procedures in cases of terminal illness. The will may also confer powers of attorney on any other person to make the necessary decisions. In our opinion a living will is a non-binding recommendation because it is made for a hypothetical situation. It is most likely that the person making the will would decide differently if in an actual situation of terminal illness.
1.4.5. Life support: Omission vs. commission / withholding vs. withdrawal
According to the principle of intention, a distinction in Law does not exist between withholding life support and withdrawing it. Both have the same intention and are therefore considered legally equal. There is however a major psychological difference between the two. The issue is legally easier if life support is not started at all according to a pre-set policy and criteria. Once it is started, discontinuation raises legal or ethical issues. The principle of the law that applies here is that continuation is excused where commencing is not, yughtafar fi al baqa ma la yughtafar fi al ibtidaa. Continuation is easier that starting, al baqau ashal min al ibtidaa. Terminal of life support like other controversial issues is better prevented than waiting to resolve its attendant problems, al maniu afdhal min al rafu’i.
1.5 THE PRINCIPLE OF CUSTOM
The principle of custom is also used to define what is customary medical care to distinguish it from heroic efforts that are sometimes employed in terminal illness. It is a crime to fail to provide care that is customarily accepted as appropriate. There is no obligation to institute heroic measures that are out of the ordinary.
2.0 THE DEFINITION OF DEATH
2.1 ISSUES IN THE LEGAL DEFINITION OF DEATH
Terminal illness is defined as illness from which recovery is not expected. Medical and surgical procedures may be carried out to support life functions and replace organs damaged beyond repair. These include the artificial respirator, the heart-lung machine, pace makers, kidney dialysis, parenteral feeding, and drug treatment. Most of these are heroic measures that do not change the basic condition. The patient inevitably succumbs as soon as the measures are withdrawn.
2.1.2 Different ways of defining death: The manner in which death is defined affects the ruling, hukm, about life support. The following are various definitions of death: (a) traditional: cardio-respiratory arrest (b) Brain stem death (c) Higher brain death. If death is defined as cardio-respiratory failure or as brain stem death, life support can be withdrawn immediately because death is certain. Dr Ali al Bar has described brain stem death very accurately as having the same effect as decapitation. If the definition of higher brain stem death is accepted, life support will be removed from persons who still have many life functions (like respiration, circulation, sensation).
2.1.2 Certainty, yaqiin, in ascertaining death: Since the definition of death and the exact time of its occurrence are still matters of dispute, a major irreversible decision like withdrawing life support cannot be taken in cases of doubt. The Law strictly forbids action based on uncertainty, shakk.
2.1.3 Irreversibility: Decisions whose effects can be reversed easily are easier to make than decisions that are not easily reversible. Withdrawal of life support that will be followed by immediate cessation of all manifestations of life is an irreversible decision. It has to be taken after careful consideration of all factors involved.
2.4 Quality of life: The question of quality of life should not be raised in the definition of life. The assumption is that there must be some quality to human life for it to be worth living. As humans we can know only material aspects of life quality such as pain. There are other aspects that are beyond ordinary human perception. We learn from the Qur'an that the death of non-believers is stressful in the spiritual sense. Believers can have a good death even if there is a lot of pain.
2.2 MOTIVATIONS FOR A SCIENTIFIC DEFINITION OF DEATH
2.2.1 Thenatology: Issues surrounding the end of life have become so controversial and complicated that a special academic discipline, thenatology, has developed to study them. Thenatology deals with the definition of death (legal and ethical issues), biological programmed death, philosophical and cultural aspects of death, and initiation of withdrawal of life support.
2.2.2 Difficulty of defining death: Definition of death was easy before modern technology. People died when permanent cessation of life processes was observed based on lack of respiration and/or lack of a heart beat or both. The situation is no longer that simple because death is a process and is not a simple yes/no event. Modern medical technology has made death a prolonged process that no longer has a clear and definitive end.
2.2.3 Acceptance of death: Historically it was easy for people to accept the inevitability of death. There was a lot of death and for people living in extended families death became part of daily life. Most adults had personal experience of seeing people dying or being involved in preparing them for burial. Religions also taught people to accept death and most religions taught some form of after-death existence. Death was therefore easy to accept as a transitional event or a rite de passage.
2.2.4 Attempts to delay death: In a modern setting of most industrialized societies, it is no longer that easy to accept death since it is not considered a terminal event. Physicians find themselves under pressure from family members to use ‘life saving technologies’ in situations that are clearly hopeless. Organ and tissue transplantation technology has also exerted pressure to define death in two ways. Terminal patients as sources of organs can be kept artificially alive until such a time as the organ harvesting team is ready to take their organs.
2.2.5 Attempts to hasten death: A purely materialistic view of life that considers only the physical suffering of the patient and ignores that this could be balanced by spiritual bliss and calmness. The physicians therefore find themselves pressured to remove life support technology to let people die without suffering. The high cost of modern technology could also be involved in the desire to let death occur sooner. Life support technology may have to be removed to allow them to die sooner so that their organs can be harvested earlier before they deteriorate further.
2.3 TRADITIONAL CRITERIA OF DEATH
2.3.1 Need for criteria: In general death is defined as irreversible loss of the integrated functioning of the organism as a whole. For most of human history, death has been defined in a more subjective way with little attention being given to objective criteria. There were no legal or practical necessities for early diagnosis of certification of death. They had the luxury of waiting until all signs of life disappeared before pronouncing death. The earliest criteria of death that humans used were respiratory arrest. Later circulatory/cardiac arrest as absence of a heart beat or a pulse was also used. Unconsciousness was another criterion used and it related to the brain. Technological developments in intensive care units have blurred the demarcation between life and death that was taken for granted before. Many unconscious people with no cardiac or respiratory functions can be kept apparently alive on artificial life support. The increase in transplantation has given momentum to the need to develop new criteria for death. This is because organs have to be harvested quite early in the death process to prevent them from further degeneration.
2.3.2 Respiratory failure: The main purpose of the respiratory system is to deliver oxygen to the tissues. Oxygen is necessary for tissue metabolism. Tissues cannot survive prolonged hypoxia. Thus respiratory failure is followed by death of tissues due to oxygen deprivation. Respiratory failure is defined as type 1 failure which is hypoxemia (partial pressure of oxygen <8 kpa) due to decreased pulmonary perfusion or type II failure which is hypoxemia with hypercapnia (partial pressure of carbon dioxide >6.5 kpa) due to failure of breathing.
2.3.3 Cardio-vascular failure: In cardio-vascular failure, tissues are not perfused sufficiently with blood that carries food and oxygen as well as takes away tissue metabolic waste. The brain is more sensitive to circulatory failure than other tissues of the body. Cardiovascular failure has 2 components: cardiac failure and circulatory failure. In cardiac failure, cardiac output is inadequate for tissue perfusion due to failure of pumping blood by the heart. Cardiac failure also manifests as blood congestion in the pulmonary and the systemic circulations. Cardiac failure is caused by a variety of diseases some localized and others systemic. Circulatory failure, failure of adequate tissue perfusion and oxygen delivery, is caused by hypovolemia, cardiac failure, obstruction to blood flow, and neurogenic due to brain stem and spinal injury, anaphylactic, and sepsis. Its common manifestation is hypotension.
2.3.4 Neurological failure: impaired consciousness (coma): When blood circulation to the brain stops or is decreased, brain function is impaired and a common manifestation of this is persistent impairment of consciousness called coma. Coma indicates severe disease of the brain stem that impairs arousal mechanisms that keep us awake and conscious. The systemic causes of coma are cerebral hypoxia due to respiratory failure, cerebral ischemia due to cardiac failure or circulatory failure, and various metabolic derangements. Coma can be caused by conditions of the brain which could be traumatic injury, hemorrhage, ischemia, and infections. The extent of impairment of consciousness is measured using the Glasgow scale. Scores are given for various abilities in opening the eyes, motor response, and verbal response. Adding up these scores gives the coma score.
2.4 BRAIN DEATH: A NEW DEFINITION OF DEATH
2.4.1 The brain stem: structure and function: The brain stem consists of the midbrain (mesencephalon), the pons, and the medulla. It also contains the vasomotor centers that control cardio-respiratory functions, the ascending reticular activating system that maintains alertness (consciousness). Neurons to and from the cerebral cortex pass through the brain stem. Thus any damage to the brain stem has far-reaching impact on overall physiological integrity of the organism.
2.4.2 Causes brain stem death: Brain stem death is caused by direct cranial trauma and cardiopulmonary arrest. The brain dies because it can no longer receive nutrients and oxygen conveyed by the blood.
2.4.3 Brain stem death is in essence whole brain death: Whole brain death is cessation of function in all parts of the brain: the cerebral cortex, the brain stem, and the cerebellum. Death of the cerebral cortex means cessation of intellectual functions and the coordination of bodily activities. Death of the brain stem means cessation of the vital cardio-respiratory functions. Thus whole brain death is irreversible loss of bodily function. Whole brain death in effect means death of the brainstem because when the brain stem is dead the cerebral cortex cannot function since it depends on the brain stem.
2.3.4 Brain death is like decapitation: Dr Ali al Bar has a very graphic definition of brain stem death when he says it is the equivalent of decapitation. There may be some movements of limbs and the trunk after decapitation but these will cease soon.
2.3.5 Higher brain death as definition of death
The cerebral cortex is the seat of intellect, memory, thought, feelings, and all what distinguishes a human. Irreversible loss of function in the cerebral cortex leads to loss of some these higher functions in the human in addition to functions such as voluntary movement. However a lot of autonomic functions that do not require voluntary control by the cerebral cortex remain intact because they are controlled by the brain stem. Thus a person who is in an irreversible state of unconsciousness, referred to as persistent vegetative state, can have a functioning cardiac and respiratory systems for a time. These functions however cannot last forever and they will cease unless some form of artificial life support is instituted. With life support such a person can be kept ‘alive’ for years and decades. Death usually occurs because of another cause like infection.
2.4 DIAGNOSIS OF BRAIN DEATH
2.4.1 Overview: Brain death is quite an early event in the death process. It was first proposed as a criterion for death by an adhoc committee of the Harvard Faculty that redefined death as brain death in 1968. Brain death was defined in 1968 by a publication ‘A Definition of Irreversible Coma’ in the Journal of the American Medical Association by the Ad Hoc Committee of the Harvard Medical School. The criteria for brain-death syndrome were given as: apnoeic coma with no evidence of brain stem or spinal reflexes and a flat electroencephalogram over a period of 24 hours. The report implied that death was brain death and recommended withdrawal of life support. In 1973 brain stem death was identified as the point of no return.
2.4.2 Conditions to be excluded before testing for brain stem death: Coma or loss of consciousness is first ascertained. Then causes of coma due to reversible brain stem injury are excluded. These include hypothermia (rectal temperature below 35 degrees centigrade), depressant drugs (narcotics, hypnotics, and tranquillizers), metabolic derangements (serum electrolytes, acid-base balance, disorders of glucose metabolism, and endocrine disorders), and drugs that block respiratory muscles. Diagnosis of brain stem death will also require identification of a probable cause of the brain death.
2.4.3 Clinical tests for brain death: Clinically brain death is indicated by: absence of pupillary reflexes (constriction of pupils when light is shorn in them), fixedly-dilated pupils, absence of the corneal reflex (blinking when cornea is stimulated), absence of eye movements, absence of the orbicularis oculi reflex, absence of the vestibule-ocular reflex which is no eye movement when the external auditory meatus if flushed with 20 ml of ice cold water, no motor response to stimulation in the area of cranial nerve distribution such as absence of grimacing on applying firm pressure above the eye socket, absence of spontaneous respirations (Apnea is also confirmed by first making the patient breathe oxygen and then disconnecting the respirator long enough for carbon dioxide to accumulate in the lungs to trigger spontaneous breathing), absence of cephalic reflexes, absence of motor response to pain, absence of the cough reflex and absence of the gag reflex (coughing or gagging when a catheter is passed down the airway). These clinical criteria are considered less accurate and have to be confirmed by laboratory measurements. They also are sometimes too late for purposes of declaring death to enable harvesting organs for transplantation. The above tests for brain death may have to be repeated several times at certain time intervals to make sure.
2.4.4 Laboratory tests for brain stem death: Laboratory assessments are considered confirmatory of death and include: electrocorticogram measurements, electo-retinography, cerebral blood gas analysis, cerebral angiography to show cerebral circulatory arrest, retinal fluoroscopy, assessment of brain stem auditory responses
2.4.5 Diagnosis of the persistent vegetative state (PVS): PVS is a state of higher brain death with lack of intellectual, emotional, memory, and other functions associated with a functioning cerebral cortex. Patients in PVS have a flat EEG of the cerebrum. They are not aware of who they are and where they are. They carry out movements but these are purposeless and are not coordinated. They have no sensory or language functions. They retain automatic cranial and spinal reflex response on stimulation. They can also produce meaningless sounds. Because of intact brain stem and hypothalamic function, they retain autonomic functions of swallowing, coughing, gagging, sucking, and gastro-intestinal movements. They can swallow food and drink on their own or assisted by means of nasogastric tubes. Patients can survive in the vegetative state for up to 30 years.
2.4.6 Diagnosis of ‘coma vigilante’ or ‘locked in syndrome’: Care must be taken to distinguish PVS from the locked in syndrome. In the locked in syndrome the cerebral cortex is intact as indicated by EEG measurements. The patient is aware of himself and his surroundings. He however has lost the ability to make any voluntary movements. The only movement that is usually preserved is movement of the eyes up and down. Such patients can develop some communication using eye movements.
2.5 CONCLUSION: WHAT IS LEGAL DEATH?
2.5.1 After reviewing the various definitions of death, we need to address the legal definition of death. This is necessary because when a person dies, there are legal consequences involving burial, marriage, inheritance, and legal responsibilities. Legally several conventions are adopted by various countries and communities. These conventions change from time to time depending on the level of technological development and the underlying societal values.
2.5.2 The legal definition of death is guided by the concept of custom or precedent, qa’idat al ‘aadat. Thus the definition can change from time to time and also from place to place depending on the level of technological development. Definition of death for the lost person, hukm al mafquud, can rely on the average expected life expectancy that varies by place, ethnicity, and socio-economic status. Cardio-respiratory failure used to be the traditionally accepted definition of death. Since the invention of life support technology, a consensus is developing to use whole brain death (in essence brain stem death) as a necessary and sufficient criterion of death. Brain stem death has the same effect as complete decapitation. Just as life support measures are useless for a decapitated person, they are useless for a person with brain stem death. There is no consensus that cerebral death (higher brain death) with a functioning brain stem is an acceptable definition of legal death. In the absence of time and financial pressures, the traditional cardio-respiratory criteria of death remain operational.
3.0 LEGAL RULINGS IN TERMINAL CARE
3.1 CLINICAL PRACTICE GUIDELINES
Each hospital should have written guidelines on initiating, withholding, and withdrawing life support, conventional treatment, nutrition and hydration. The guidelines should specify what to do in cases of brain stem death and higher brain. In the presence of guidelines, the attending physicians will then have only the task of ascertaining the clinical and laboratory evidence before taking the necessary action. In cases of doubt and if there is time, 3 trusted specialist physicians should be consulted about the interpretation of the guidelines and the clinical and laboratory evidence. They should also be consulted if there are no written guidelines in the hospital. If there is doubt it is better to take the more conservative course of initiating and continuing the measures.
3.2 INITIATING LIFE, WITHHOLDING, AND WITHDRAWING ARTIFICIAL LIFE SUPPORT
3.2.1 Initiating artificial life support: Initiating life support can be waajib, manduub, or makruh. Initiating life support is waajib if there is net benefit to the patient. It is manduub if the benefit may be temporary and the patient will eventually succumb. In practical terms this means that life support can be started only for patients with intact brain stem function with a reasonable chance of recovery. It would be makruh to initiate life support for any reason not related to the patient’s medical condition such keeping the patient ‘alive’ to give time for organ harvesting or to delay declaration of legal death for personal or public interest.
3.2.2 Withholding artificial life support: Withholding life support may be jaiz, makruh, or haram. Withholding life support is jaiz if there is clinical and laboratory evidence that it will produce no net benefit to the patient. This helps avoid the later problems of withdrawal because withholding is psychologically easier than withdrawing. Under the Law the distinction between withholding and withdrawal is minor because the intention and the consequences are the same. In practical terms life support should be withdrawn in cases of brain stem death. It should also be withdrawn in cases of imminent death to avoid waste of resources. It is makruh to withhold life support on the basis of poverty or advanced age of the patient. It is haram to withhold life support on the basis of discrimination according to race, caste, religion, or political beliefs. Life support cannot be withheld from an infant born with severe congenital disease on the grounds that even it survives it will not lead a normal life. The ruling on withholding life support for a persistently vegetative patient requires further discussion.
3.2.3 Withdrawing life support: Withdrawing life support can be jaiz or haram. Life support withdrawal is jaiz in case of clear death, mawt yaqiin. If the brain stem is dead continuing life support is a waste of resources. Withdrawal of life support in such a case will free an intensive care bed for the next needy person. Withdrawing life support from a patient with a functioning brain stem on the basis of sparing him further pain and suffering is euthanasia and is clearly haram. There is no qisaas for death following withdrawal of life support from a patient with brain stem death.
3.3 INITIATING, WITHHOLDING, AND WITHDRAWING CONVENTIONAL TREATMENT
3.3.1 Initiating conventional treatment: When a patient presents in a severe condition, it is waajib to initiate emergency supportive treatment like blood transfusion while the clinical condition is being assessed to decide on definitive treatment. When the assessment is completed, a decision is made whether to institute conventional treatment. This decision is based purely on consideration of the net benefit of that treatment. If there is no net benefit the treatment should not be started. In case of uncertainty treatment is instituted and the situation is reviewed later.
3.3.2 Withholding conventional treatment: Withholding conventional treatment is a difficult process because of the presumption of benefit. It is jaiz to withhold conventional treatment from a patient with brain stem death. It is also jaiz to withhold conventional treatment from a patient whose imminent death is certain and initiating treatment is considered a waste of resources. Withholding conventional treatment from a patient in a persistent vegetative state needs further discussion.
3.3.3 Withdrawing conventional treatment: The condition of the patient should be reviewed on a continuous basis. If on review the treatment is found to have no net benefit then it is jaiz to withdraw conventional treatment. The decision to withdraw should be based on clinical and laboratory evidence following established hospital guidelines. It is jaiz to withdraw conventional treatment if death is imminent. It is waajib to withdraw treatment if it is causing severe side-effects with immediate risk to life. The treatment should never be withdrawn if there are any doubts about its net benefits. Withdrawal of conventional treatment from patients in persistent vegetative states requires further discussion.
3.4 INITIATION, WITHHOLDING, WITHDRAWING ARTIFICIAL NUTRITION AND/OR HYDRATION
3.4.1 Initiation of artificial nutrition and hydration: Artificial nutrition and hydration is providing food and water using a nasogastric tube, a gastrostomy tube, or parenteral nutrition through intravenous infusion. These artificial means are considered a form of basic medical treatment and are a right of each patient. It is waajib to provide nutrition and hydration for all patients until they die. Continuous review will be necessary to ensure that there is benefit and no harm from the nutrition and hydration.
3.4.2 Withholding artificial nutrition and/or hydration: Artificial nutrition and hydration cannot be withheld because they are basic treatment. Even in cases in which there is no certainty about net benefit, they should be continued for the comfort that they give the patient.
3.4.3 Withdrawing artificial nutrition and/or hydration: Artificial nutrition and hydration can be withdrawn in cases of imminent death because they will be serving no additional purpose. The situation is complicated if the patient is in a persistent vegetative state and is kept alive by artificial nutrition and hydration. Such patients can be kept for a long time measured in years and not in days. Artificial nutrition and hydration are of benefit in such a case but they will not contribute in any way to a reversal of the clinical condition. If resources permit, they should be continued because withdrawal is a difficult decision that will appear like depriving a living person of water and food so that they can die. If there are resource constraints the matter should be referred to a court of law for a judgment.
3.5 PROVISION OF NORMAL NUTRITION AND/OR HYDRATION
For patients who cannot benefit from any further medical intervention, ordinary nutrition and hydration are provided until the moment of death. Stopping normal feeding and hydration may be euthanasia that is forbidden.
4.0 CARDIO-PULMONARY RESUSCITATION
4.1 DEFINITION
Cardio-pulmonary resuscitation involves measures to reverse respiratory failure and / or cardiac failure.
4.2 LEGAL RULINGS ON CPR
In normal patients with potentially curable conditions CPR is waajib under the purpose of preserving life. In terminal patients with irreversible conditions, CPR may have no long-term benefit. We therefore need to make a decision in whom we should attempt CPR and in whom we should not. CPR should not be attempted where it is not likely to succeed. CPR should not be attempted if its success will be momentary and the patient will succumb again to cardio-pulmonary arrest. CPR should not be withheld on the grounds that it is late and the patient has already suffered brain damage. It should also not be withheld on the grounds that recovery will prolong the patient’s suffering and pain. The decisions on CPR should not involve considerations of future benefit. It should be limited to the sole benefit of reviving the cardio-respiratory system. Premature infants and infants with congenital anomalies should not be denied CPR on the grounds of poor future prognosis. Parents cannot refuse CPR that physicians feel can succeed. Physicians cannot be forced by parents to undertake CPR with no prospect of success. Cases of doubt should be referred to the courts.
4.3 ADVANCE DECISIONS
Patients can express their preference for CPR in cases of doubt about its success. If there is a chance of success patient wishes on withholding CPR cannot be respected because of the immediate and intimate involvement with preserving life. If a patient did not express any wishes regarding CPR, the physicians should do their best to revive him if there is a likely benefit.
To make life easier for physicians patients may be asked to make decisions about what to do if they get into cardio-respiratory failure. A Do Not Attempt Resuscitation (DNAR) order can be made by the physician after a clinical assessment, listening to the wishes of the patient, and other relevant legal considerations. If patients insist on CPR even if clinical evidence suggests its futility it should be provided to them. There are situation in which the physician can write a DNAR order for an incompetent patient if he judges that to be in the best interests of the patient.
5.0 PRACTICAL ILLUSTRATIVE CASES
CASE #1: ROSLI HAJI JUMAAT (Year 2 Classroom case):
SUMMARY
The family took an unconscious man to hospital reluctantly because they believed he was dead. He was admitted to the ICU and was put on artificial life support. For a period of 4 weeks the family insisted on and the physicians refused withdrawal of life support. The patient woke up in the 5th week.
DETAILED NARRATIVE
Rosli was at home attending a family festival, kenduri, when he suddenly felt weak and collapsed falling on the ground. He lost consciousness. Family members gathered around him and tried to revive him by shouting at him or moving his arms and legs. They tried pouring cold water on his face with no response. They concluded that he was dead and they started offering prayers for the dead. A distant cousin who had retired from nursing 20 years ago tried to feel Rosli’s pulse and she said she was not sure whether he was dead and advised that he be taken to the hospital just in case.
Q1. What is your opinion about the criteria used for determining death in this situation?
Q2. What is your opinion about determination of death by a person who is not medically qualified?
Emergency room evaluation
Initial examination at the hospital revealed the following:
Measurement | Patient | Normal average |
Mean Arterial Pressure in mmHg | 90 | 96 |
Heart rate beats per minute | 110 | 70 |
Cardiac output in liters per minute | 3.0 | 5 |
Arterial oxygen content in milliliters per liter | 150 | 200 |
Global oxygen delivery in milliliters / min | 500 | 1000 |
Q3. What conclusion can you make from the above results?
Intensive care unit
The attending medical officer decided to send him to the ICU and to start all available life support measures. Several members of the family were not happy with life support they wanted to take Rosli away and prepare for burial they were however afraid to oppose the doctor. After 12 hours on life support without any sign of life visible to them, the whole family was united in asking the physician to discontinue life support. The ICU physician supported by the hospital director insisted that Rosli was living and that he could not discontinue life support. Relations between the family and the hospital staff were bad over the next weeks with frequent quarrels and arguments.
Q4. What do you think are the criteria for initiating life support?
Q5. What do you think are the criteria for stopping life support?
The family was tired of waiting in the hospital for all this time. They had come to accept that Rosli has some life in him but were convinced his fate was already sealed and that all the life support given was a waste of time. Suddenly at the start of the 4th week Rosli while still on life support made some spontaneous movements. The whole family was overjoyed. Their joy was however dampened by the ICU medical officer who castigated them: ‘I told you he was alive and you did not believe me! Did you want me to withdraw life support so that he would die quicker! Were you after his inheritance and could not wait!’
Q6. What do you think about the conduct of the physicians and the family?
Rosli made quick recovery over the next 4 days. Most of the life support equipment was withdrawn and he started some oral feeding. He was able to recognize his family and to talk to them. The consultant surgeon visited Rosli to discuss options for further treatment. He suggested a major surgical intervention. Rosli refused the surgery. He said that he did not want his family to suffer any more. His case was terminal and he wanted to die in peace. He also did not want to exhaust all his savings paying for the surgery leaving his grandchildren with little to live on.
Q7. Discuss the cost-benefit considerations in artificial life support
CASE #2: MRS JOHNSTON (MOOT COURT CASE)
SUMMARY
Mrs Johnston was paralyzed from the neck downwards. She was on a ventilator for 6 months and asked it to be discontinued so that she could die peacefully. The family was split on the matter.
DETAILED NARRATIVE
Ms. Johnston is happily married with 5 young children aged 1-13 years. She has a loving and supportive extended family. Six months ago she had a road traffic accident and fractured her cervical spine. She was paralyzed from the neck downwards. She was unable to breathe and was put on a ventilator. Assessments by specialist physicians over the next 6 months concluded that the damage was permanent and that she would never recover any movement and will have to stay on the ventilator for the rest of her life. Ms Johnston was able to speak, hear, and move her eyes and facial muscles so she had meaningful interaction with her family. Her children visited her almost daily in the hospital and enjoyed being with her.
She has started developing bed sores despite very good nursing care and had several episodes of pneumonia that were treated with antibiotics. The family had been supportive all through. She started discussing her fate with the family. She expressed her frustration and wished to stop the ventilator. She gave as her reasons the high cost to her family both financial and in terms of psychological burden of caring for her. She also reasoned that since there was no chance of recovering and returning to her home there was no point continuing with a futile treatment.
The family was split on the matter. Some supported her wish but others did not. Her 2 eldest children were vehemently opposed saying that they needed her company, psychological support, and advice and that they would be at her bedside all through until her natural death. The husband was opposed to the idea but was ready to support his wife’s choice. Ms Johnston’s father was opposed to the idea.
The matter was discussed with the physicians who were also not sure of what was to be done. They first called in a psychiatrist to assess her competence and mood. The psychiatrist concluded after three interviews that Ms. Johnston was competent and was not depressed. The hospital director did not know what to do after ascertaining Ms. Johnston’s wish to terminate the ventilator and the psychiatrist’s ascertainment of her competence. He consulted the hospital’s lawyer who told him that wishes of a competent patient have to be respected. He also took note of the fact that Ms. Johnston’s husband supported her wish. He authorized withdrawal of the ventilator and Ms. Johnston died 2 days later due to respiratory failure.
Ms Johnston’s father took the hospital to court over wrongful death. The lower court ruled that the hospital’s act was legal. He appealed to the High Court.
CASE #3: BILL SIDHU (MOOT COURT CASE)
SUMMARY
A young man was unconscious and on a ventilator following an accident. There is a dispute in the family about discontinuing life support
NARRATIVE
Bill Sadhu is a 24yr old man who was terribly injured in a car crash 4 years ago. He has been in the long stay ward in a hospital with no improvement or deterioration in his condition. He has been reviewed by consultant physicians every 6 months. The findings at the latest review carried out 2 weeks ago were as follows.
He was unconscious and unresponsive. He however made uncoordinated spontaneous limb movements. The pupils constricted when light was shorn in them. The corneal reflex was present. The eyes moved in a haphazard manner. The orbicularis oculi reflex and the vestibule-ocular reflexes were intact. All cranial and spinal reflexes were intact. He grimaced when pressure was applied to the above the eye socket. He was breathing spontaneously and his cardiac function was intact. He did not respond to pain. The cough, gag, and swallowing reflexes were intact. He could swallow with assistance by the nurses. The electro-encephalogram was flat. He produced some meaningless sounds. He had intestinal movements. He produced meaningless oral sounds.
Bill’s accident occurred as he was returning from his bachelor party organized by his friends at the office. The wedding celebration planned for the next day was never held. He and his fiancée had already got married in a civil ceremony 3 days before. The wife after waiting for 4 years grew desperate and wanted to get on with her life. She decided to ask the hospital to stop nutrition and hydration for Bill. The hospital refused and she decided to get her father in law involved in order to convince them. The father in law was opposed to the idea. He was a millionaire businessman and he argued that his son was alive. He had a heart beat and could breathe on his own. He could move and appeared to be looking. He said that he did not mind paying the hospital bill for the next 100 years.
Bill’s father decided to take the case to court to seek an injunction against withdrawing nutrition and hydration from Bill to let him die. The hospital director had also filed a case seeking the court’s ruling regarding the request by Bill’s wife. The lower court decided to join the two suits together since they were dealing with the same matter. The judge ruled in favor of Bill’s wife. The father gave a notice of appeal. His request not to stop nutrition and hydration until the appeal process was over was granted by the lower court.
CASE #4: Mr DENG (Year 1 class room case)
SUMMARY
Patient with brain stem death is kept on artificial life support on the insistence of the family because announcing the death immediately will have an adverse effect on the values of the family business on the stock exchange
DETAILED NARRATIVE
Mr Deng was unconscious by the time he was taken to hospital. Initial examination in the emergency room showed the following:
Patient Value | Normal | |
Glasgow coma scale | 13 | 3-15 |
Hemoglobin | 140 | 130-180 g/L |
Bilirubin μmol/Liter | 25 | 2-17 |
Alkaline phosphatase U/LITER | 150 | 40-125 |
Albumin g/L | 30 | 36-47 |
BP | 80/50 | 120/80 |
Q1. What conclusion can you make from the results above?
The attending physician decided to institute life support measures. New investigations were made the next day and showed the following. The electro-encephalogram (EEC) tracing was flat indicating low/no brain activity. Clinical tests showed a still functioning brain stem. The patient was in kidney failure and artificial dialysis was started. Serum tests showed a failing liver.
Q2. What is your conclusion about the status of the patient at this stage: alive or dead?
The 3 specialist physicians who work in the ICU held a conference that afternoon and reached a unanimous decision that the chances of recovery from coma and living a normal life were almost nil. They discussed the matter with members of the family who insisted that they wanted Mr. Deng kept alive at all costs. The ICU nurse later informed the physicians that she had overheard discussions among family members to the effect that declaration of Mr. Deng’s death cause panic and loss of share value of Mr. Deng’s 2 publicly listed companies on the Hong Kong Stock Exchange. They wanted to sell family shares before the public found out that Mr. Deng was dying.
Q3. What is your view about further continuation of life support measures?
QUERY #1: ANENCEPHALY
QUERY
The mother of a 2-day anencephalic infant was urging with the doctors to convince them to institute advanced life support in case the baby’s cardio-respiratory function failed. The doctors were not sure of what to do.
RESPONSE
In anencephaly there is no cerebrum but the brain stem in intact. An anencephalic infant has cardio-respiratory function. The anencephalic infant is living but will eventually succumb. No measures should be taken to support life but food, hydration, and antibiotics should be given a indicated. No measures should be taken to hasten death. Nature should be left to take its course. It is conceivable that in the future medical technology will enable such infants lead a normal life.
QUERY #2: PERSISTENT VEGETATIVE STATE
QUERY
What is the minimum that should be done for a patient in a persistent vegetative state?
RESPONSE
Patients in persistent vegetative states can be given ordinary nutrition and hydration. These cannot be withdrawn without seeking court permission.
QUERY #3: STROKE PATIENTS
QUERY
What should be done for a stroke patient in persistent coma?
RESPONSE
Stroke destroys parts of the brain. Stroke victims do not understand and may not be able to swallow. Normal hydration and nutrition should be continued until the moment of death.
CASE #4: QUERIES ON BRAIN DEATH FROM THE FIQH ACADEMY OF INDIA APRIL 2007
QUERIES
1. Whether the medical theory that actual death is the death of brain is correct as per Islamic shariah or not? In other words, if a person whose brain death has occurred but whose blood circulation and respiration is being continued artificially can be declared dead as per the Islamic shariah?
2. When a person’s brain stem is working but his heart and lungs stop functioning, what would be the status of such a person? Whether such a person would be considered alive or dead?
3. Whether it is permissible to remove a person from artificial life-support system about whom doctors have not lost hope, nevertheless, it is certain that the person would die if removed from the life-support system? Whether such a course of action is permissible in case the relatives of the patient are not in a position to bear the expenses involved in keeping him on the life-support system like ventilator etc.?
4. Whether it is permissible to remove patient from artificial life system like ventilator in case doctors have lost hope, though, it is possible to continue blood circulation and respiration for some time? What is the status, as per Islamic shariah, of taking advantage of the artificial life support system by the legal heirs of a person- whether it is obligatory, permissible or prohibited?
5. What would be the time for applying legal implications arising out of death like iddat, succession, etc? Whether they shall be applied from the time of brain death, or from the time when heart and lungs stop functioning, or from the time when artificial life support system is removed?
RESPONSES TO THE QUESTIONS: Summary of the response
1. There is near unanimity among physicians and Muslim jurists that brain stem death is legal death even if respiration and blood circulation are maintained artificially. Brain stem death has the same effect as decapitation. Maintenance of respiration and blood circulation artificially has no net benefit in cases of brain stem death. There is disagreement about whether higher brain death can be recognized as legal death since the brain stem is still functioning and can maintain the vital functions of life for a limited time on its own or with the assistance of machines.
2. A patient with an intact functioning brain stem on artificial support for respiration and blood circulation is living and cannot be declared legally dead. Recovery of respiration and blood circulation is possible. If the artificial life support has no net benefit or if there are resource constraints the matter should be referred to a qadhi for a decision.
3. If a patient has brain stem death he is legally dead and artificial life support is withdrawn without any financial considerations. If the brain stem is intact artificial life support is continued if it has net benefit and the relatives can afford it. If it has no net benefit and/or the relatives cannot afford it the matter is referred to a qadhi for decision.
4. A qadhi should be consulted for a decision in cases dispute between physicians and members of the family or in cases of doubts about the sincerity of the physicians or the family in asking for withdrawal of life support for a patient with an intact brain stem whose prognosis is said to be poor and in whom life support has some or no net benefit
5. The legal time of death in cases not on artificial life support is the moment of complete and irreversible stoppage of respiration and blood circulation. The legal time of death in cases on artificial life support is when respiration and blood circulation stop on withdrawal of life support. For purposes of organ transplantation when artificial life support is continued, the time of death is the moment of brain stem death.
RESPONSE: Justification
Under the purpose of preserving life, maqsad hifdh al nafs, medical treatment and other means of artificial life support are obligatory where there is life. According to the principle of custom, qa’idat al ‘aadat, only ordinary means are obligatory. The Law does not oblige physicians to try means that are futile. The purpose of preserving life may contradict the purpose of preserving wealth, maqsad hifdh al maal. Life comes before wealth in order of priorities. However expenditure on futile treatment is waste, israaf. Brain stem death fulfills the criteria of the principle of certainty, qa’idat al yaqiin, because it is irreversible and can be diagnosed definitively. Decisions on life support by physicians and family members may not be in the best interests of the patient and judicial consultation is needed for unclear cases. Withholding life support is the same as withdrawing in consequences and intentions but is psychologically more acceptable. The principles of the law that applies here is that continuation is excused where commencing is not, yughtafar fi al baqa ma la yughtafar fi al ibtidaa, and continuation is easier that starting, al baqau ashal min al ibtidaa. The principle of custom, qa’idat al ‘aadat, is also used to define what is customary medical care to distinguish it from heroic efforts that are sometimes employed in terminal illness. It is a crime to fail to provide care that is customarily accepted as appropriate. There is no obligation to institute heroic measures that are out of the ordinary.
RESPONSE: Role of the qadhi
The Muslim community in India has to train enough ‘ulama in each city to understand issues of death and its determination and have them readily available for making legal rulings. This will close the door to evils, sadd al dhari’at, that would arise if the matter is left solely in the hands of family members and physicians who may have their own interests (sincere and not sincere) that are not in the best interests of the patient or are against the shari’at.
The qadhis are guided in their decision by ascertainment of brain stem death and futility of any further artificial life support. The qadhi should not consider financial ability in deciding on death which is a purely biological phenomenon. If the family cannot afford the cost of artificial life support the hospital will stop it. No more than 1/3 of the patient’s wealth should be used for artificial life support. Beyond this the family should not be forced into debt or into selling all the property for futile artificial life support because the welfare of the healthy members of the family has priority over life support in terminal illness.
When life support is withdrawn, the patient may or may not die. The qadhi’s role then comes in when death has to be declared if there are doubts or disputes. The usual rules of qisas do not apply to physicians who stop artificial life support if they acted within professional guidelines. However relatives who make the decision to withdraw life support may not be inheritors because they indirectly were.