Citation(1992) 4 SAcLJ 310
Date01 December 1992
Published date01 December 1992
The Heart of the Matter

The taxman may never come to some, but for most there is the certain assurance of death in time. Or at least that has always been the assumption of the common law. In the certainty of death, there was also the certainty of the time of the event: the law assumed that when death occurred, the line between life and death would be so patent that no legal definition of the event of death was necessary. Where there was any doubt, the approach of the common law in England, the United States and most of the common law countries was to simply treat any uncertainty as to the time of death as a purely theoretical problem which could be met with a procedural presumption or rule of law (as in rules relating to commorientes), or as a purely factual problem which could be answered by taking judicial notice of the prevailing perception as to what constituted death.

This second approach in most jurisdictions generally translated into the task of the ascertainment of the time and fact of death being delegated entirely to the medical profession. As observed by the Law Reform Commission of Canada, the argument for such an approach was that physicians alone “are in the best position to establish and to apply scientific criteria of death with a reasonable degree of certainty, to decide whether a given individual can be considered dead in the specific circumstances and to certify this fact. Physicians are in continuing contact with factual situations, no two of which are exactly identical, and particular circumstances play an important part in making a decision. Any attempt to legislate or judicially define death (it is argued) would only succeed in fixing or crystallizing what is essentially a dynamic and changing situation”1. Thus the Law Reform Commission of Australia was able to state flatly in 1977 that the “laws of Australia, and Britain, have never attempted to define death, and have left the diagnosis to the medical profession”2,3. As will be argued later in this paper, in the absence of any

reported local judgement on the definition of death at common law (at least until 19914), this approach would seem to have been applicable by default to Singapore. As for legislation, the concept of death (and by extension therefore the definition of the event itself) is no small concern of the law: a search of the Singapore Statutes5 reveals that the term death (and its cognate expressions) is mentioned no less than 1,281 times. In comparison, a similar enquiry for the term life (and its cognate expressions) reveal a mere 554 references. Yet despite this preoccupation with things thanatological, death found no definition anywhere in the statutes until 1987 when the Human Organ Transplant Act6 was enacted. And as will be argued in this paper, even this definition is for a very limited purpose, and leaves open the question of what the current Singapore common law position on the definition of death is. The reason for this apparent abdication by the judicial and legislative branches of the law in most common law countries until the late 1960s is not difficult to discover. The medical definition of death was in effect simply a refined version of the view held by the layman, that it could be safely assumed that breath, heartbeat and life were synonymous for all practical purposes: the judge on the bench saw the definition of death in the same terms as the man in street and the legislator in Parliament. In the absence of any practical means to prolong biological existence beyond the failure of breath and heartbeat, a definition of death beyond a purely medical diagnosis was meaningless. Thus in many common law jurisdictions, death was defined at common law up to the late 1960s in terms such as “…a total stoppage of the circulation of the blood, and cessation of the animal and vital functions consequent thereto such as respiration and pulsation”7.

The first crack in the wall appeared as early as in the 19th century. As early as 1874, one Moritz Schiff was able to demonstrate that a heart which had

stopped beating could be revived by direct massage of the organs8, but this involved surgically opening up the chest cavity to gain access to the heart. By the 1940s, biotechnology had advanced far enough that drugs and electrical stimulation could be applied to cardiac resuscitation. In 1960, it was demonstrated that external cardiac massage (without opening the chest cavity) could be used to maintain circulation in a patient whose heart had stopped and soon thereafter cardiopulmonary resuscitation (CPR) become a standard procedure in hospitals9.

In plain terms then, by the mid-1960s, the assumptions of law no longer squared with medical possibility (and as it soon turned out, reality as well): a man whose heart had stopped was dead so far as the law was concerned, but what then was the law to make of the man who had been returned from the dead (if only for a short while) by courtesy of medical technology? This was essentially the question posed to a Virginian court in the celebrated case of Tucker’s Administrator v. Lower (Ct Law & Eq., Richmond, Virginia, 25 May 1972, No. 2831)10. In that case, proceedings in tort for wrongful death were brought against the physicians involved in the transplant of the heart of a man who had been pronounced brain-dead by hospital physicians. The deceased had been placed on a respirator after becoming unconscious following an accident. After the attending physicians came to the conclusion that the deceased was brain-dead, he was taken off the respirator. He stopped breathing, and was pronounced dead. Then he was put back on the respirator again (i.e. his heart started beating again) in order to preserve circulation to the heart during the preparation for the transplant operation. The allegation was that as the deceased’s heart was beating at the time it was removed from his body, the deceased was alive at that moment by the definition of a Virginian statute defining death in heart-death terms. The jury apparently ignored the statutory definition and returned a verdict in favour of the physicians, thus establishing for the first time a judicial precedent for the brain-dead definition of death in the United States11. Death was freed from mechanical reference to the function of the heart in isolation: “One juryman stated

that, “It was clearly proved in the trial a man…cannot live without a functioning brain”12.

Curiously enough, a case with remarkably similar facts (except that a kidney transplant was involved) had gone before an English court in 1963, yet had attracted little attention. In the case of Re Potter (The Times, 26 July 1963)13, the traditional heart-death definition appears to have been applied, with the gloss that it was for the medical profession alone to decide on the medical evidence before them who was dead and who was not, and that heart-death must refer to the cessation of spontaneous heartbeat. By this definition therefore, the patient in question had died when he ceased to have the capacity to breathe spontaneously, and the fact that he was subsequently made to breathe again on a respirator did not, in the eyes of the law, resurrect him. The significance of these two cases will be dealt with later in this paper.

Death As A Process

Inherent in the old heart-death definition was the assumption that the death of the whole was instantaneous, or so nearly that it was practically coincident with the death of the heart. A bare century after Moritz Schiff first brought back from the dead by open heart massage of his patient, medical technology has reached the stage where its application and its very capabilities poses the most difficult and intractable moral, ethical and philosophical problems. In the last few decades, the commonly accepted view (at least in medical circles) has moved from death as a singular event in time to death as a process of infinite gradation between the state of conscious, rational life and the state of final corporeal dissolution. Barring a catastrophic accident, a man dies not of an instant, but by degrees. Sometimes this process of death is short, but sometimes it is not. The key to the sustenance of cellular life (at least insofar as the dying process is concerned) is oxygen supply, at which fundamental function the activities of heartbeat and respiration is directed. When breath or heartbeat finally stops, the process of death begins. Cells begin to die, but not all at once, for they possess greatly different degrees of tolerance to oxygen deprivation. At one end of the spectrum are “certain cells (notably those of nails and hair) [which] continue to grow for several days after the total termination of cardio-vascular and cerebral functions”14. The kidneys can survive as intact organs up to two-and-a-half hours without any special intervention, and survival times (meaning that they were successfully used for transplantation) of up to 76 hours with special treatment have been

reported15. Lungs survive for up to an hour, whereas the liver only up to half an hour. At the other end of the spectrum lies the brain:

“Of all the human organs, however, the brain is by far the most vulnerable. A blood circulation failure in the brain brings on loss of consciousness within ten seconds. During the following four minutes, reactivation is possible without the patient ordinarily suffering critical brain damage…. After this critical period, however, the brain begins to suffer permanent and irreversible damage. Unlike other cells in the human body (for example, those of the bone tissue), brain cells are incapable of self-regeneration. The brain cortex or cerebrum, which according to the present state of medical knowledge is believed to be the seat of consciousness and thus of relational life, is the first to be affected..… Beyond a certain time limit (reached somewhere between 8 and 10 minutes), the damage caused by anoxia and ischemia...

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