Reader Response: Revise the Uniform Determination of Death Act to Align the Law With Practice Through Neurorespiratory Criteria
AndrewMcGee, Associate Professor of Law, Queensland University of Technology
Dale CGardiner, Intensive Care Physician, Nottingham University Hospitals NHS Trust
Submitted June 13, 2022
We support the approach of Omelianchuk et al. to emphasize function rather than anatomy in their recommendations to revise the Uniform Determination of Death Act (UDDA).1 However, the authors include in their suggested wording, “(a) the capacity for consciousness, (b) the ability to breathe spontaneously.”1 There is a long-standing legal principle that courts, in interpreting statutes, will seek to give a meaning to every word that is used. A consequence of this is that "capacity" will not have the same meaning as "ability." This is a problem. To use an analogy, a person can have the capacity to go shopping but if their partner has taken the car, they do not have the ability to go shopping. Do the authors intend to refer to capacity or ability? It is the loss of the capacity to breathe that must be in the legislation because this would mean that the brainstem would no longer be able to send a signal through to the spinal cord, thereby communicating with the diaphragm and relevant components of the chest wall. The best way to achieve clarity is to use exactly the same word “capacity" that is used with "consciousness" in any UDDA revision.
Disclosure
The authors report no relevant disclosures. Contact [email protected] for full disclosures.
References
Omelianchuk A, Bernat J, Caplan A, et al. Revise the Uniform Determination of Death Act to Align the Law With Practice Through Neurorespiratory Criteria. Neurology. 2022;98(13):532-536. doi:10.1212/WNL.0000000000200024
We support the approach of Omelianchuk et al. to emphasize function rather than anatomy in their recommendations to revise the Uniform Determination of Death Act (UDDA).1 However, the authors include in their suggested wording, “(a) the capacity for consciousness, (b) the ability to breathe spontaneously.”1 There is a long-standing legal principle that courts, in interpreting statutes, will seek to give a meaning to every word that is used. A consequence of this is that "capacity" will not have the same meaning as "ability." This is a problem. To use an analogy, a person can have the capacity to go shopping but if their partner has taken the car, they do not have the ability to go shopping. Do the authors intend to refer to capacity or ability? It is the loss of the capacity to breathe that must be in the legislation because this would mean that the brainstem would no longer be able to send a signal through to the spinal cord, thereby communicating with the diaphragm and relevant components of the chest wall. The best way to achieve clarity is to use exactly the same word “capacity" that is used with "consciousness" in any UDDA revision.
Disclosure
The authors report no relevant disclosures. Contact [email protected] for full disclosures.
References