Donation After the Circulatory Determination of Death: Some Responses to Recent Criticisms

Donation After the Circulatory Determination of Death: Some Responses to Recent Criticisms Abstract This article defends the criterion of permanence as a valid criterion for declaring death against some well-known recent objections. We argue that it is reasonable to adopt the criterion of permanence for declaring death, given how difficult it is to know when the point of irreversibility is actually reached. We claim that this point applies in all contexts, including the donation after circulatory determination of death context. We also examine some of the potentially unpalatable ramifications, for current death declaration practices, of adopting the irreversibility criterion. cardiopulmonary standard, circulatory–respiratory criterion, CPR, criterion for declaring death, DCD, dead donor rule, declaration of death, definition of death, donation after circulatory determination of death, ECMO, irreversibility, organ donation, organ transplantation, permanence, permanent cessation of circulatory function, reversible I. INTRODUCTION For donation after circulatory determination of death, the dead donor rule requires that, before organs can be procured from donors, the donors must be determined to be dead (Miller and Truog, 2012, 113). For such a donor to be dead, the relevant part of the legal definition of death requires that the cessation of circulation be irreversible. In standard medical practice, “irreversible” has been construed to mean either (a) not capable of being reversed by resuscitative efforts, or (b) not capable of autoresuscitation. The latter construal is used to determine death where the resuscitative efforts referred to in (a) are not appropriate and so are ethically ruled out—the patient might have a do not attempt resuscitation order (DNAR), for example, and so, with these patients, it is only considered necessary to exclude the possibility in (b). A number of critics have objected to this standard practice, claiming that patients declared dead on the basis of the impossibility of autoresuscitation alone are not dead (Marquis, 2010, 31; Truog and Miller, 2010, 17; Miller and Truog, 2012, 99)1—or, in an important qualification whose implications they do not address, they are at least not known to be dead—and we should therefore stop “pretending” that they are (Marquis, 2010, 31; Truog and Miller, 2010, 17). Truog and Miller, in particular, have argued that a consequence of this conclusion is that the dead donor rule must be abandoned (Truog and Miller, 2010, 18; Miller and Truog, 2012, 113). Given that patients are not dead—or not known to be dead—when the organs are recovered, Truog and Miller claim that we need to shift the focus of ethical inquiry from when it is legitimate to declare a patient dead to when it is legitimate to procure vital organs (Truog and Miller, 2010, 18). Abandonment of the dead donor rule, they claim, does not necessarily mean that procuring the organs from these patients is unethical. Bernat, in a debate with Truog and Miller, disagrees with these claims. Perhaps surprisingly, he concedes that, strictly speaking, the patients are not dead2 at the time at which they are declared to be dead. He claims that it is perfectly legitimate to engage in what he calls the “early practice” of declaring death on the basis of a “valid surrogate marker for irreversibility,” namely, permanence (Bernat, 2010b, 19). Medical practitioners declare death in this way all the time in a very different range of contexts. Most hospital death determinations are made at the moment of asystole (Bernat, 2010b, 19; Truog and Miller, 2010, 17). Society permits practitioners to declare death earlier in this way for social benefits, rather than awaiting signs of rigor mortis, putrefaction, or other unequivocal signs of circulatory irreversibility (Bernat, 2010b, 19). For this reason, it is unnecessary to abandon the dead donor rule. We aim here to mount conceptual challenges to the claims made by each of these authors from both sides of the debate. For reasons we shall see, it is legitimate to declare death in donation contexts because, unless autoresuscitation is a genuine possibility, the patient will actually be dead. In defense of this claim, we will advance the following points, for which we will provide detailed arguments in the rest of the article: Being dead and being known to be dead are different things (a person may be dead without our knowing that the person is dead). By recognizing this distinction when they add the qualification “or at least not known to be dead,” Marquis, Truog, and Miller effectively concede that the patient might in fact be dead when death is declared. If this were not so, the qualification would be unnecessary. This has significant ramifications for their criticisms of death declaration in donation after circulatory death (DCD). The question, however, is: when is it reasonable to claim that we know someone has died? What has to be ruled out? What has to be ruled out is a counter-possibility that is a genuine possibility in the circumstances. If there is no reason to believe that autoresuscitation is a genuine possibility (we are beyond the time at which this can occur),3 then that possibility has been ruled out. If cardiopulmonary resuscitation (CPR) is, from that point on, the only gateway to resuscitation, and if CPR is inappropriate, we know all there is to know to justifiably declare that a patient has died. This does not mean that death is declared early, before it has occurred. Rather, it means that death has occurred. We can say that circulatory and respiratory function is “irreversible” at the point at which circulatory and respiratory function has stopped and autoresuscitation is not possible. To reject the current practice for death determination in DCD may logically require us, for reasons we shall provide, to reject many more death determinations in modern hospitals as equally wrong—far more than critics of DCD would themselves acknowledge. For example, it could mean warm autopsies could no longer be carried out. This is because nobody knows the precise point at which it would be impossible to get the heart to contract, for at least one beat after asystole, even if the commencement of CPR is delayed for a substantial period of time. We must distinguish here between whether we would attempt to revive someone after a certain time has passed, and whether we could in principle make the heart contract after such time has passed. Irreversibility (defined by reference to the failure of all attempted or attemptable human efforts at resuscitation) requires the latter be ruled out in all situations for death to be declared. The dead donor rule (DDR) is best interpreted in its historical context, as a self-evident rule advanced to protect vulnerable patients from a relaxation of the usual standard for death determination, not as an additional requirement on medical practitioners, owing to the consequences of organ donation, for a higher burden of proof. Contra Marquis, “irreversible” is not like “insoluble” but more like “irreparable” and “inoperable.” It partly depends on skill, and on what we are prepared to do, so it should be understood as meaning permanence. It is also, however, unlike “incurable”—at least as Marquis himself explains the application of that term—for reasons we explain. If the patient’s relatives changed their mind and required an attempt at CPR after the declaration of death, and the patient actually revived, that would be a defeating condition. If no defeating conditions are actualized, the patient was actually dead when he was declared to be dead, rather than later on, when the defeating conditions were not in fact actualized. This is because the cessation of circulatory function was permanent from that time. If the defeating conditions are actualized, by contrast, then the patient was not dead when we thought he was. Declarations of death are defeasible. But, defeasibility is not defeat. II. BEING DEAD AND BEING KNOWN TO BE DEAD In several places, as stated in our introduction, Miller and Truog qualify their claim that DCD patients are not dead by adding the rider “or at least are not known to be dead” at the time the organs are recovered (Truog and Miller, 2010, 17; Miller and Truog, 2012, 99, 112). This qualification concedes that the patients might actually be dead on the irreversibility criterion after all. If this were not so, the qualification “or at least not known to be dead” would not be necessary. We believe this problem to have significant ramifications for their position, because it shows that the question is really about the reasonableness of the diagnosis of death, given the uncertainty about when death, on the irreversibility criterion, occurs and how it can be verified to have occurred. The reason they add the qualification “or at least not known to be dead” is that any attempt at CPR may be unsuccessful, even if given immediately. In the case of controlled DCD, a decision has already been taken, independently of organ donation, to withdraw life-sustaining measures from the patients and, even if CPR were wrongly attempted on them after the onset of asystole, many would still not revive due to the negative inotropic effects of acidosis and other metabolites in the donor. If CPR would not be successful, the patient was already dead, even on irreversibility criterion. Loss of respiratory and circulatory function can be irreversible at any stage after it is lost, even though reversal is much less likely, the further down the track we go. There is a stage at which any attempt at CPR is pointless regardless of the category of patient, but it does not follow from this that it is only from that stage onward that the loss of respiratory and circulatory function is irreversible. It might have been irreversible much earlier, because CPR attempts would have failed.4 And if it were irreversible, it was so from the time the heart stopped. Also, leaving aside the cases where negative inotropic effects of acidosis and other metabolites render CPR futile, there are “DCD like” cases where restoration of spontaneous circulatory function inside the body has been achieved, in one case 23 minutes after cardiorespiratory arrest (Ali et al., 2009),5 but where it would normally have been reasonable to declare death before this point. We need an account of the reasonableness of declaring death that deals with these unusual cases. We provide this account later in this article. In brief, we contend that it is far more defensible to adopt permanent cessation of circulatory–respiratory function if the patient is notknown to be dead on the irreversibility criterion, than it is if the patient is knownnot to be dead on the irreversibility criterion. In the latter case, there is a blatant falsehood. In the former case, there is not—the patient could be irreversibly lifeless. Pragmatic reasons to do with the timeliness of the diagnosis, the difficulty of stating the moment of irreversibility with any precision, and the inappropriateness of CPR (CPR being a precondition to the possibility of a reversal of the cessation of circulatory–respiratory functioning) can combine to lead society reasonably to adopt the criterion of permanence in these cases. This is all the more so when we consider (as we shall see later) that “irreversibility” was itself a requirement that was only built into our understanding of death on the development of modern forms of resuscitation as these methods became widely practiced. So Miller and Truog’s rider is a significant qualification on their view. When they claim that these patients are not irreversibly dead, their case looks strong because it looks like the adoption of permanence is the adoption of a blatant falsehood. When instead they claim that the patients are not known to be irreversibly dead, their case is weaker because they are conceding that in fact the patients may be irreversibly dead. Given (as we shall show) the difficulty in identifying with precision the point at which irreversibility is achieved, it is far more reasonable to adopt the pragmatic solution of relying on permanence if these patients might already be irreversible. Bernat rightly recognizes that we declare death on the basis that the cessation of respiratory and circulatory function is permanent (Bernat, 2010a). However, he misdescribes the practice by stating that “[p]ermanent cessation of circulation constitutes a valid proxy for its irreversible cessation because it quickly and inevitably becomes irreversible and because there is no difference in outcome between using a permanent or an irreversible standard” (Bernat, 2010a, 14). Formulating the point in this infelicitous way leaves him open to precisely the objection that Truog and Miller make, namely, that this confuses a prognosis with a diagnosis (Truog and Miller, 2010; Joffe et al., 2011). We believe he is pushed into doing so because of the wording of the United States’ Uniform Determination of Death Act (UDDA), on which most death statutes in the United States are based (Bernat, 2010a, 13, 15). This relevantly requires that “a person who has sustained . . . irreversible cessation of circulatory and respiratory functions . . . is dead.” Because the word “irreversible” is used, Bernat has to equate death with irreversible cessation of circulatory and respiratory function, but the act also adds that a “determination of death must be made in accordance with accepted medical standards,” and, in practice, the standard of death determination in modern hospitals is permanent cessation of circulatory and respiratory function (National Conference of Commissioners of Uniform State Lawyers, 1981).6 It is this latter requirement, in combination with the former wording in the section where the word “irreversible” is used, that leads Bernat to claim that permanence is a “valid proxy” for irreversibility. By contrast, we believe that permanence is not merely a proxy for irreversibility, but a way of knowing whether circulatory and respiratory function will be reversed or not; in many cases, we only need to rule out the possibility of autoresuscitation before diagnosing death. We do not need to rule out resuscitation via CPR (or other resuscitative efforts), because CPR in these cases is not appropriate, yet CPR is the only way resuscitation could occur. Requiring us to rule out the possibility of resuscitation via CPR, when CPR does not apply, is like requiring us to judge whether a train is on time by reference to the timetable for a different train. So, we believe that the requirement of determination of irreversibility “in accordance with accepted medical standards” effectively means that we can interpret “irreversibility” to mean permanence, rather than merely to stand proxy for it, for reasons we shall now explain. How can we justifiably have different standards of death determination, depending on the category of patient? In a given patient in front of us, once we know that the point of possible auto-reversal has passed, what else we need to rule out can depend on the circumstances, including how it is permissible to treat the patient. To take a different case, if a certain treatment is contraindicated (say, e.g., that a treatment would foreseeably cause an anaphylactic reaction), then, once it has been adjudged contraindicated, it is not necessary to take into account any possible benefits that treatment may have had in ascertaining whether the patient can be cured by that treatment or whether instead the patient’s condition is terminal. For this has already been taken into account in assessing whether the treatment is contraindicated. Death determination is no different in principle from this case. In any given case, we want to know if the cessation of circulation is final or not; we do not want to know if the cessation could, in other circumstances, be reversed in principle. For instance, when declaring the death of a 92-year-old frail lady with DNAR order, we are not interested in whether her heart could be restarted in principle because she has clearly indicated that the treatment required to achieve this is not permissible in her case. Remember that if the heart can be made to contract at least once, regardless of the quality of function to which it could be restored, then irreversibility proponents are committed to the claim that this patient is not (known to be) dead. If irreversibility, understood by reference to CPR, really were the criterion for determining whether this lady had died, we would need either to make efforts to resuscitate her, and fail, or wait for sufficient time to have passed until CPR would never be effective before we could declare her dead. If, instead of trying CPR, we wait for a period of time until we believed irreversibility had been achieved, there is a difficulty which we discuss in detail below. This is the difficulty that nobody can identify with any precision the point at which irreversibility is reached. These facts make it rational to distinguish between patients for whom CPR is appropriate and those for whom it is not. If we do not know when the point of irreversibility with CPR is reached,7 but CPR is not appropriate, then, in these cases, the difficulty of identifying the latest point at which a person can revive with CPR is not a relevant question. To put the point another way: if the only gateway to reversibility is CPR, but CPR is not appropriate, then we know all there is to know to declare death. This is a diagnosis, not a prognosis, because we are not predicting that, at some point in the future, an attempt at CPR will fail. We are relying instead on the fact that CPR is inapplicable. One problem with this approach highlighted both by Truog and Miller and by Marquis is that it seems to lead to the conclusion that A might be in exactly the same biological condition as B, yet A will be dead and B will be alive. Thus, if A is a donor candidate two to five minutes after asystole, and it is inappropriate to attempt CPR, A will be dead. Whereas B, a CPR candidate also two to five minutes after asystole, will not be (Truog and Miller, 2010, 17). This seems absurd. However, it is important to recall the distinction between being dead and being known to be dead. First of all, the physiological state of a controlled DCD candidate may be different from the footballer who collapses during a football game and whose heart has stopped for at least two to five minutes. As discussed above, the condition of the DCD patient may be different because the cardiorespiratory arrest follows a period of profound hypoxia and acidosis rather than a direct cardiac event. This may mean the controlled DCD patient would be harder to resuscitate successfully than the footballer. Second, if the condition is biologically irreversible (i.e., by human efforts), both A and B will be dead. The condition could be biologically irreversible after two to five minutes in both A and B. If it is only normatively irreversible (it is not appropriate even to try and resuscitate) in one of the two cases (case A), then only A will be known to be dead. But, A will be known to be dead on the basis that autoresuscitation will not occur.8 A is not known to be irreversibly dead, that is, on the basis that CPR efforts would be unsuccessful. But unless we try CPR, we do not know this even after many hours (for argument on this point, see below)—long after the point at which both A and B would be adjudged to be dead in current medical practice. Again, at two to five minutes, only an attempt at CPR would tell us this—A might already be dead on the irreversibility criterion, as might B. It is because we do not know whether either A or B are truly irreversible even for several hours that we declare death on the basis of permanence in both A and B.9 Are we not nonetheless conceding here that A is not biologically dead? Even if, for the sake of argument, we accepted that biological death is defined as exclusively irreversible cessation of circulatory–respiratory functioning rather than its permanent cessation, we are still not conceding that A is alive (a claim that would entail that A is knownnot to be biologically dead). At most, we are conceding that A is notknown to be biologically dead on the irreversibility criterion as tied to human efforts. But, we reject the claim that a person is not known to be biologically dead unless and until the patient would not revive even with CPR. We do not accept that irreversibility, where that concept is defined by reference to human actions of resuscitation, is an essential requirement for biological death.10 Death, we contend, should be defined as the condition of being permanently lifeless in any relevant circumstance.11 “Relevant circumstance” refers either to cases where CPR is appropriate, or to cases where it is not. In circumstances where CPR is not appropriate, we do not need to apply the time frame that applies where CPR could be given for the first time and the patient not revive, which is what we need to know in order to know a patient is irreversibly dead. We can invoke an imaginary case to help with this argument. Imagine that it became possible to make the heart contract in someone’s body 2 days after asystole, but that it is never worthwhile restarting the heart because all brain and body function could not be restored sufficiently to provide any quality of life. On the views of these authors, nobody would now be known to be dead on the cardiopulmonary criterion until after this 2 day period. All death declarations before this point would have to be made on the permanence standard. We see no argument as to why it would be wrong or irrational to adopt this permanence standard for declaring death in such a case. But if that is so, why should the fact that it is a time period of 2 days rather than two to five minutes make a difference? The focus should therefore be on the fact that the heart has stopped and on whether the cessation of the heart is permanent or not. “Irreversibility” is no less a criterion of death of our choosing than is the criterion of permanence, and the concept of irreversibility itself embodies a norm stipulating that everything should be done before we call a patient dead.12 Before the advent of resuscitation techniques, for example, the concept of irreversibility as defined by human efforts to resuscitate had not even been forged. “Irreversibility” was only built in to our modern concept of death when CPR and other resuscitative measures became widely practiced, and rather than holding that we had discovered ways to bring people back from the dead (in spite of some lay parlance that persists with this way of describing such cases), society chose to say that we should not declare these people to be dead until all efforts have been made to revive them. The requirement to do all that is possible to revive a patient is not, however, always appropriate, so we need a definition of death that reflects this and the current practice that relies on it. Permanence does so because in both cases—cases where CPR is not appropriate and cases where it is—we do not declare death until confident the cessation is permanent. The category of the patient enables us to know when permanent cessation is reached. There is another reason for preferring permanence over irreversibility. This is that irreversibility is always and inevitably technology dependent, whereas a diagnosis of permanence is not.13 For example, consider the existence of extracorporeal membrane oxygenation (ECMO) resuscitation technology. What stops us using this technology in the countless cases in which we do not use it?14 Considerations of its appropriateness or suitability for the circumstances in question are the factors that determine its use or suitability. The creation of ECMO technology did not suddenly result in the invalidation of all deaths declared in cases where we would not even contemplate using this technology, nor does it invalidate all such declarations now in cases where it might have been used but is simply not available. Given, as we have stated previously, using ECMO, a heart in a DCD context has been restarted at 23 minutes (Ali et al., 2009) and the function was good, can we no longer declare death within 23 minutes because relatives might demand ECMO or change their mind about the appropriateness of resuscitation within this time?15 We contend that the answer is a resounding no. We do not believe that any reasonable doctor, or any reasonable system of rules and guidelines, would impose this requirement, and that is, of course, why questions such as these will sound to anyone in practice as rhetorical questions that invite the “reductio ad absurdum” conclusion. Notice, however, that, if this is so, the very same points apply to CPR. Before CPR, we had no option of resuscitating such patients, and so they were diagnosed dead. Within the era of CPR, we may still choose in many circumstances not to carry out CPR, in which case those patients are justifiably diagnosed dead at the same time as they would have been 150 years ago. If we can validly and accurately declare death in those cases where it is not appropriate to use ECMO resuscitation technology, then it must follow, on the same logic, that we can validly and accurately declare death in cases where conventional CPR is not appropriate. There is no reason to privilege CPR over other forms of resuscitation. Once we index death to irreversibility, then all forms of resuscitation must be on the table, not just conventional CPR. We tend to become fixated on CPR when thinking about reversibility, but there is no logical reason to privilege CPR over other forms of resuscitation, and even opponents of DCD would not index the time of death to times beyond which a patient could revive, using these other forms of resuscitation such as ECMO. But if that is so, the same point can also apply to conventional CPR itself. In all cases, DCD and non-DCD, we judge whether the patient’s condition is reversible by reversing it or by failing to reverse it, or by not even trying. It is this latter way of telling whether a person is dead that we believe critics of DCD overlook, yet it accounts for a significant percentage of practice. It is estimated that in some jurisdictions up to 80% of patients dying in hospital have a DNAR decision (Knipe and Hardman, 2013). Finally, irreversibility is relative to human capabilities, and so not purely biological. If tomorrow we could bring cryopreserved people back, A could be in the same bodily state today and tomorrow, yet dead today and alive tomorrow. If this is acceptable, then why not permanence? III. TAKING THE CRITERION OF IRREVERSIBILITY TO ITS LOGICAL EXTREME Death is an irreversible condition . . . As long as attempting resuscitation can restore circulation, the cessation of circulatory functioning is not irreversible. (Shah, Truog, and Miller, 2011, 720)16 It might be argued that it is unsafe to declare death at the time we currently do because we may not know all we need to know. But, to accept this is to change most death practices in modern hospitals. It is important to note what is actually implied for practice if biological irreversibility via human action should always be the criterion for declaring death. Logically, if we adopted this criterion of irreversibility we should do so in all the contexts in which death is currently declared, not just in the donation context.17 Using this criterion would make it necessary to attempt CPR and any other possible resuscitative measures, including ECMO, before declaring death. Alternatively, it would require a death watch of potentially several hours. The former option would represent the end of DNAR orders in hospitals and an attempt at resuscitation even in patients dying in palliative care hospices with terminal malignancy would be necessary before declaring death. Goldberger et al. (2012) found that the longer CPR was attempted, the higher the likelihood of return of spontaneous circulation. As technology and resuscitation advanced, this would require longer and longer attempts at resuscitation before the point of accepted irreversibility would be reached and death could be declared. In one remarkable case of survival, 385 minutes of resuscitation (over six hours), which included ECMO, saved a 30-year-old Japanese woman who had been found hypothermic and in cardiac arrest following overdose and overnight exposure in a forest.18 She had been in this state, before the attempt at resuscitation, for an unknown period. It seems unlikely she arrested only seconds before she was found and CPR commenced. On the irreversibility criterion, the fact that we now have ECMO technology means that we should not, strictly speaking, declare death if we have not used the best resuscitation technology available to us to check whether the cessation of cardiorespiratory function is irreversible.19 One could be irreversibly dead in one center but not in another with ECMO technology. But of course, the fact that we have this technology should not invalidate the one million hospital deaths declared by doctors every year in the United Kingdom and United States. We see no reason why the same point should not likewise apply to conventional CPR: if we can validly declare death when we do not use ECMO technology, we can validly declare death when we do not use CPR. It might be objected that these points concerning CPR and ECMO are irrelevant. It might be argued that, in controlled DCD, we want to know how much of a delay to starting resuscitation makes any first attempt at resuscitation subsequent to that delay doomed to failure; we do not want to know, if we start immediate resuscitation, how long we need to wait until we know that such resuscitative efforts are doomed to failure. So, we simply should distinguish between those patients on whom resuscitation is immediately started and who may take longer to die (if, e.g., cooling techniques are used on them to preserve their organs and their brain), and those for whom resuscitative efforts are not appropriate and therefore on whom no resuscitative efforts will be made. These patients, according to this objection, would reach the point of irreversibility much sooner than patients on whom resuscitative techniques of the kind we have mentioned are attempted, and so insisting on irreversibility does not have the consequences we are claiming that it does. In reply, it should be noted that there is no medical consensus about when this point is reached. There is extensive variability across patients (one pragmatic reason for favoring permanence where CPR is not appropriate). Furthermore, we must distinguish between whether it is worthwhile to restart the heart in someone who will be dead anyway on brain death criteria, and whether we could restart the heart even if we could, at best, only make the heart contract one or two times. Many attempts to start CPR, or to continue it, would not be made or would be stopped because, even if circulatory and respiratory function could be restored, the patient would have severe brain damage anyway. By stopping at the time we do, or not starting resuscitation, we would not know whether the heart might have been restarted at a later point—yet on the irreversibility by human action criterion, that is what we would need to know. Indeed, there is evidence that a heart can be restarted even after six hours with no prior CPR.20 As we shall see shortly, if this figure is accepted—or any figure between one hour and six hours—then many of our other practices after the declaration of death, and not merely organ donation, would have to cease if we adopted the irreversibility criterion. And some of our practices would have to cease, even if a figure of about an hour were accepted.21 The only alternative to attempting CPR in all diagnoses of death (in order to be sure of the point at which irreversibility is reached) would be a death watch. Here, owing to the length of time that has elapsed since the respiration and circulation has ceased, irreversibility is believed to have occurred and attempts at CPR at this point would always fail. But, in cases where no CPR is even started at any stage, what are we watching for if we do this? It seems that we are watching for two possibilities: autoresuscitation and that someone might still come along and attempt CPR. Autoresuscitation is widely regarded to have been ruled out after a number of minutes and in most DCD protocols this is why there is a death watch of between two and ten minutes. In spite of some doubts about autoresuscitation, evidence suggests it will not occur beyond ten minutes in uncontrolled DCD (where CPR has initially been given but is now thought to be no longer appropriate) and, if CPR has not been used (controlled DCD), at a much earlier point (Hornby, Hornby, and Shemie, 2010; see Joffe et al., 2011). When longer periods are in question, any reversal of the cardiac arrest would rely on the application of CPR or another resuscitative technology. Few opponents to diagnosing death in DCD are willing to offer a suggested time after which death can be safely diagnosed. Alan Shewmon, however, is an exception, and has claimed that “under normal circumstances (i.e., normal temperature), an educated guess is that twenty to thirty minutes probably suffice to surpass the point of no return” (1998, 142).22 This point, according to Shewmon, would satisfy a state of thermodynamically supracritical microstructural damage diffusely throughout the body. Unfortunately, the time he suggests is too short for the state he desires to have developed. From the work of Ali et al. (2009) in DCD-like cases, ECMO can easily restart the heart at 23 minutes and the heart can be of very good function. This suggests that it could be restarted, albeit with worse function, at a time much later than 23 minutes and certainly beyond Shewmon’s 30-minute threshold. The work by DeVita (2001) on possible death watch durations, where he reviewed historic experiments on restoring brain and heart activity after death, suggests that if irreversible brain activity is the state desired before death can be declared, 60 minutes is required, and if irreversible cardiac activity is the state desired, “several hours.”23 Assuming DeVita’s claims are plausible, are we to enter an era where either CPR must be attempted in all dying individuals regardless of their wishes, or where a death watch of many hours will be required, such that a doctor will have to say, “Mrs. Smith, I’m sorry Mr. Smith’s heart and respiration has ceased, I’ll be back in three hours to confirm his death. In the meantime we will put a warming blanket over his body to prevent him cooling too quickly and please, let either me or one of the nurses know if you see him come back to life”? The radicalism of insisting on irreversibility as the criterion for death has not been sufficiently recognized. One of the authors (DG) in his tertiary university hospital evaluated time taken by junior doctors for certification of expected and unexpected deaths, after hours. Over a six-month period 17% of patients were declared deceased within 30 minutes, 37% within 60 minutes and 83% within 180 minutes. It is estimated there are 360,000 deaths in UK hospitals each year. Using DeVita’s deathwatch criteria in order to satisfy a definition of irreversibility as “impossible to reverse,” these results would suggest that over 133,000 patients (37%) each year would have to have the way their deaths were diagnosed altered to satisfy a sixty-minute standard and 300,000 (83% of all UK hospital deaths) to satisfy a three-hour standard (Gardiner and Shaw, 2014). We believe that the logic of the biological irreversibility criterion should commit its strict proponents to recommending these changes.24 IV. MODERN DEATH DETERMINATIONS An alternative proposal, one that modern doctors use every day to diagnose death, was made in 1846 (Bouchut, 1849).25 It is based on a criterion of permanence and relies on human physiology, which is remarkably similar between individuals and changes much more slowly over time than technology. In the mid-19th century, in revulsion against the German waiting mortuaries and in an effort to calm public concern over premature burial, the Academy of Sciences in Paris offered a prize to the physician who could successfully make the diagnosis of death safe, prompt, and easy.26 Eugène Bouchut won this prize in 1846. He advocated the use of an 1819 device, the stethoscope, where after two minutes of absent heart beat on auscultation, he claimed that death could be safely diagnosed. In the face of opposition, he extended this period to five minutes.27 This French discovery was only slowly adopted worldwide. Today, in nearly every hospital in the world, a doctor will listen to the heart with a stethoscope for a variable length of time, usually between one and five minutes, before declaring death. The length of time is determined mostly by the individual doctor’s own judgment rather than by any official standard, as there is little published guidance. In the United Kingdom, it was only in 2008 that official guidance was issued for the diagnosis of death after cardiorespiratory arrest and the 1846 five-minute standard adopted. Four years later in 2012, the UK National Patient Safety Agency (NPSA) had to issue an alert regarding five patients prematurely declared deceased after cardiorespiratory arrest and failed CPR. The recommendation from the NPSA was not that the UK observation time of five minutes to declare death after cardiorespiratory arrest was too short; it was that the doctors had not waited even this length of time. In 1846, Bouchut, using empirical and animal evidence, showed that at five minutes death is permanent. Five minutes is safe, even perhaps two minutes, and we see nothing in the last 150 years to tell us we need to sacrifice the timeliness his standard brings for any supposed requirement for increased safety. To repeat, the truth is that we do not need to know cessation is irreversible in the vast majority of cases. We only need to know that it is permanent. And it is upon this criterion that doctors routinely diagnose and confirm death in modern hospitals. To reject permanence is to reject modern death determination and return society to an era when only putrefaction was considered a safe and irrefutable sign of death—though even putrefaction was unable to assuage the public fear of premature burial. V. IS DCD DIFFERENT TO NON-DCD CONTEXTS? Readers may claim that the points we have made concerning non-DCD contexts—for example, patients outside the DCD context who have DNAR orders and others for whom it would not be appropriate to attempt CPR—only show that nothing of any ethical or legal significance turns on declaring death in these contexts at the moment of asystole. Ethically and legally, they may claim, it does not matter if death is declared in non-DCD contexts on the basis of permanence, because the dead donor rule does not apply outside the DCD context. They may also point out that an unofficial death watch usually occurs after death is declared, ensuring that the criteria of irreversibility are fulfilled. In a debate with Bernat, Truog and Miller (2010, 17) make the following claim: In today’s hospitals, we commonly declare death at the moment of asystole, confident that nothing consequential will happen to the patient over the next several minutes and that the routine flow of hospital activity will provide an adequate death watch to ensure that the criteria for irreversibility are satisfied. Thus, Truog and Miller believe that, although these non-DCD patients are not known to be dead when death is declared at the moment of asystole, this does not matter because they will certainly become dead over the next several minutes, and the routine flow of hospital activity will provide an adequate death watch. On this view, there is no need to wait for an extended period of time after asystole before declaring death in these contexts. Such a position would not have the absurd implication that CPR (or other technology like ECMO) must be attempted and fail before declaring death. By contrast, in the DCD context there is a specific, established ethical norm, the dead donor rule, that requires that donors must be known to be dead before vital organs can be procured. Because we do not know that DCD patients are actually dead when death is declared, so the objection continues, this rule is being routinely violated. This distinction between DCD and non-DCD contexts is in our view problematic for several reasons. First, Miller and Truog have objected to the claim that we can know a patient is dead even over the few minutes following asystole. On their view, even waiting five minutes after asystole is not sufficient to know that a patient is dead—this is the very objection they make concerning the use of DCD donors whose organs are retrieved five minutes following asystole.28 Yet, their claim here that, outside the DCD context, we can declare death at the moment of asystole confident that “nothing consequential will happen to the patient over the next several minutes” seems to be making a quite different point, namely, that we can declare death at the moment of asystole outside the DCD context because, even if the patient is not known to be dead at the moment of asystole, we know that the patient is dead after the next several minutes—after which period we can tell whether anything consequential has happened or not (Truog and Miller, 2010, 17). If this is their claim, however, then they appear to be endorsing the view that it suffices to rule out autoresuscitation in such cases, that is, that the patient would be known to be dead after “the next several minutes” have passed, even if they are not known to be dead at the moment of asystole. In fact, their criticisms of the practice in the DCD context, where five minutes must pass after asystole before organ retrieval, should commit them to the view that the patient is not known to be dead even after “the next several minutes,” but that this does not matter because nothing of any ethical significance arises from the practice of declaring death. Miller and Truog must actually be relying on the routine flow of hospital activity, following the period of several minutes, to ensure that the patient is in fact known to be dead in these non-DCD cases. But, this creates a problem of its own: the time provided by routine hospital activity after the period of several minutes would only be necessary to ensure that someone does not come along and try to resuscitate the patient with CPR,29 and we do not know with any real precision when it is no longer possible to revive a person using CPR. The problem is that Miller and Truog do not state at what point a patient is known to be dead. We have seen that widely diverging times have been proposed from 23 minutes (with good function) to “several hours.” Resuscitation researchers such as Parnia believe this time can be extended much further. Yet for some post mortem practices and procedures, for example, warm autopsies where tissues are removed within hours of death,30 or cultural requirements for burials within 24 hours that currently have no statutory or medical imposed minimum wait time,31 is it possible these too are routinely being carried out before biologic irreversibility (by reference to the actual or possible failure of human resuscitative efforts) is established? If so, then it may not be possible for Miller and Truog to say that death declaration practices outside the DCD context do not give rise to the same ethical problems as death declaration practices within the DCD context. Indeed, the claim that the problem arises only in the organ donation context by reason of the existence of the dead donor rule is misleading. The dead donor rule is no more than an express formulation, in the organ donation context, of what is already a general rule that also applies to other contexts. For instance, in forensic cases, autopsies have been performed within the first hour after death is declared.32 Autopsies are occasionally carried out when the patient is, as Miller and Truog would put it, still “warm to the touch.” If we sometimes carry out autopsies soon after the heart has stopped, it goes without saying that we should not perform such autopsies until after the person has died. Although this norm is not expressly formulated in debates, this is only because we have not had debates in other contexts, such as the autopsy context, akin to the debates that we have had in the organ donation context. If we do not have such an expressly formulated rule, this is only because it goes without saying, not because there is a laxer attitude about death and the things we can do to dead people outside the donation context than the attitudes and permissible things we can do within the donation context. Nonetheless, we could call this obvious rule the “dead body autopsy rule.” We also take people to the mortuary within hours of the heart stopping. This sometimes happens even within an hour. If irreversibility rather than permanence were our criterion for declaring death, we would have to stop these practices because they would show that we could not know that these patients were biologically dead when the autopsies are performed or the body bags are used. So, it would not be correct to reply that, since this is a nondonation context, there is no ethical impediment to declaring death when we do. Adopting the irreversibility criterion would involve more than abandoning DCD. We would need to abandon early autopsies and the practice of sending dead patients to the morgue within an hour of declaring death.33 And this may extend to practices that take place even after “several hours,” if we accept DeVita’s view outlined above. Even if we waive these problems and grant Miller and Truog’s point for the sake of argument, we still have to explain why it is that non-DCD patients can be declared dead when, strictly speaking, they are not known to be dead. It is no answer to our contention to claim that this does not matter and is not necessary in the non-DCD context because the dead donor rule does not apply in that context. Nor is it an answer to say that subsequent events in routine hospital practice will ensure that the criterion of irreversibility will be fulfilled. For surely, we should only declare death when we reasonably believe that it has actually occurred, and not when we think it should be declared on other grounds, safe in the putative assurance that an ad hoc death watch, determined by routine hospital practice, will mean that the patient will die at some indeterminate point after death has been declared. It seems absurd to distinguish between declaring death insincerely and sincerely stating that death has occurred; the whole point of declaring death is to sincerely state that death has occurred. We want to be able to declare death when we believe it has occurred, not declare it when it is convenient, on the basis that, in truth, we all simply do not know when it really has occurred.34 One claim by Truog and Miller is that DCD needs to have more stringent standards than declarations of death in other contexts, for the consequences of our assessments being wrong in the donation context are greater (Truog and Miller, 2010, 16–17). In illustration of this point, they cite the example of a physician being about to amputate a limb for what is believed to be a local malignancy (Truog and Miller, 2010, 17). They claim that, in such a case, the physician will use more precise criteria to rule out metastatic disease than if amputation is not a feasible therapeutic option (Truog and Miller, 2010, 17). They draw from this the conclusion that the criteria physicians use to establish the presence or absence of a clinical condition are context dependent (Truog and Miller, 2010, 17), and so appealing to the case of a 92-year-old with a DNAR, as we do, would not on their view invalidate the claim that at the moment she is declared dead, she is not known to be dead. Our criteria for declaring her dead do not need to be so precise here as they need to be in the case of DCD. By contrast, the fact that the few minutes following asystole will require lethal actions such as surgical incision and the removal of vital organs means that the methods of declaring death must be more precise (Truog and Miller, 2010, 17). In reply to this point, note again first that, on Truog and Miller’s logic, the same point would apply to warm autopsies, given that incisions are certainly going to be made for the purpose of carrying out the warm autopsy—yet warm autopsies are a non-DCD case about which they have remained silent. This undermines the distinction they draw here between DCD and non-DCD contexts. Second, we believe this putative difference between DCD and non-DCD contexts is exaggerated. In fact, the reintroduction of DCD programs has resulted in improved safety in the medical declarations of death in all contexts. Before the reintroduction of DCD, death was diagnosed in most UK hospitals35 by the most junior doctor in the hospital, with no national guidelines or accepted practice on how to do it (and well known huge variability in practice), with no mention in the medical curricula or in medical textbooks. Most doctors will have difficulty feeling a pulse less than 60 mmHg (i.e., a weak pulse may not be felt),36 heart sounds are difficult to hear in noisy environments, and detection of shallow breathing has been known to be problematic for hundreds of years. It was in this context that death determination was once carried out, and it is not surprising that there are cases of misdiagnosis.37 When the reintroduction of DCD programs was proposed, the organ donation community agreed with Truog and Miller that the consequences of a wrong diagnosis require greater stringency and consistency than doctors had up to that time been demonstrating. DCD programs now provide that stringency and consistency. First, unlike in failed CPR, there is no evidence of autoresuscitation beyond 65 seconds following the withdrawal of life sustaining treatment,38 such that a two to ten minute standard is actually conservative (DeVita 2001; Hornby, Hornby, and Shemie, 2010).39 Second, and in contrast to most other death determinations in a hospital, in DCD cases the diagnosis of death is carried out by senior doctors, following national guidelines based on the best evidence, with an explicit demand for use of critical care monitoring—ECG/EKG to observe electrical activity of heart, arterial lines to watch beat to beat blood pressure, and an observation time that insists a doctor stays and observes the patient for the duration (probably the most important part). Through these changes, DCD is driving all hospital deaths to be diagnosed more safely by introducing standardization in death determinations and featuring more in medical education. It is worth noting, in this context, one of the earliest formulations of what will become known as the “dead donor rule”40: When a vital, single organ is to be transplanted, the death of the donor shall have been determined by at least one physician other than the recipient’s physician. Death shall be determined by the clinical judgment of the physician. In making this determination, the ethical physician will use all available, currently accepted scientific tests. (Judicial Council of the American Medical Association, 1968) The intention, in other words, was to protect donors from those with a vested interest in gaining organs and from those who might not fully apply accepted standards. The passage seeks to protect the donor from a relaxing of the usual standard, rather than to impose a higher standard, given the consequences of the declaration. This is reinforced by the UDDA, an Act drafted to give clarity for the declaration of death primarily to allow for deceased donation, where the requirement is that, “A determination of death must be made in accordance with accepted medical standards.”41 In neither the Judicial Council’s ethical advice nor the UDDA did the consequences of organ donation persuade their drafters that a standard higher than usual was required to determine death safely. As we have demonstrated, the usual and accepted standard is permanence. VI. IS IRREVERSIBILITY LIKE INSOLUBILITY? In criticism of the permanence criterion, both Marquis (2010, 28–9) and Truog and Miller (2010, 17) point out that irreversibility is an exclusively biological phenomenon. Note that this point is aimed at those who believe that one way of proving irreversibility is to prove permanence. On this view, permanence is equivalent to “normative irreversibility,” that is, to whether or not it is appropriate even to try and reverse circulatory and respiratory function (a biological element remains on the permanence criterion, however, in that autoresuscitation must no longer be physiologically possible). Against this, Truog and Miller (2010, 17) argue that whether or not a condition is reversible does not “depend on the intentions and actions of those surrounding the patient at the time of death.” In response to the proposal for a normative notion of irreversibility, Marquis (2010, 27) points out that “irreversibility” is what he calls a dispositional property of the patient, in just the same way that being soluble or breakable are dispositional properties of objects: those objects have the capacity to dissolve in water, or to break. These properties seem to stand independently of whether in fact they will actually be dissolved or broken. Marquis (2010, 27) claims that the normative irreversibility (permanence) proposal can be put in the following way: when moral or legal norms apply, terms that are ordinarily dispositional acquire an ethical or normative meaning. He then dismisses this claim with an analogy. It would be wrong for me to dissolve your gold ring in aqua regia (Marquis, 2010, 27). A norm therefore applies in this case. However, no one would say that “insoluble” has an ethical meaning and that the ring is insoluble in aqua regia (Marquis, 2010, 27). Similarly, the fact that it might not be permissible to attempt the reversal of the loss of respiratory and circulatory function does not show that this condition is irreversible (Marquis, 2010, 28). Miller and Truog (2012, Ch. 5) concur. Basing the idea of irreversibility on ethical or legal restrictions “does not conform to our ordinary understanding of irreversibility” (Shah and Miller, 2010, 555). It should be noted that this argument is contestable. Terms like “soluble” and “insoluble” never bear a normative meaning. “Irreversible,” by contrast, can do so. The moot point is which sense can be legitimately applied to DCD cases, and it does not suffice to answer this question to appeal to cases that never bear a normative meaning, for this only begs the question against permanence proponents who claim that the appropriate sense is the normative one. Consider “inoperable,” when said by a doctor of a patient’s condition. Here, the doctor can clearly have in mind the pros and cons of the operation and decide that the cons outweigh the pros, and therefore consider it inappropriate to operate. This can, without any absurdity of the kind Marquis mentions with “insoluble,” quite naturally be reported by saying that it is not possible to operate on the patient, and that the patient’s condition is inoperable, meaning at least partly thereby that it is not ethically appropriate to operate, given the patient’s health and condition. “Inoperable” therefore differs from the dispositional terms that Marquis uses to criticize DCD protocols. Why can’t the appropriate sense of “irreversible” be like “inoperable”? The term “reversible,” particularly as that term is applied to patients, unlike the terms “soluble” or “breakable,” carries an intrinsic reference to possible actions that could be carried out by appropriate experts acting on intentions. For example, whereas a vase is breakable in the sense that even the wind might knock it over and break it, an engine is not reparable unless there is somebody with the appropriate skills and abilities willing to try and mend it. “Being repaired” is not the kind of thing that can happen without the appropriate application of skill and diligence from a willing subject. “Reparable” is what Jennifer McKitrick calls “a success term” (McKitrick, 2003, 163).42 This does not mean that we cannot distinguish between whether something is reparable, and whether there is anyone willing to try. But, it does mean that we can say that, in some circumstances, how we describe the object has built into it a reference to what someone is capable of doing and willing to do. “Capable of being repaired” here carries a reference to what we are willing to do—at least in the sense that this ability and willingness are background conditions within which we use a term. For example, when we speak of a car being irreparable, the background conditions include standard expectations concerning the expense to which it is reasonable for a person to go in attempting to repair the vehicle, and these partly determine the meaning of “irreparable” in applying that term to a motor vehicle. With this last remark, we are not implying that someone can be declared dead if it is too expensive to treat him. Expense is a background condition for the application of “irreparable” when used of a car, but it is clearly not a background condition of the application of “dead” when applied to patients. The point of the analogy is to show that we do in some cases predicate features of objects by reference in part to what we are willing or able to do. In our view, the fact that we use predicates in this way rebuts the criticisms of Marquis and Miller and Truog, who analyze “reversible” and “irreversible” exclusively in terms of dispositional properties. In this respect, “reversible” is more like “reparable” than “soluble.” Similar points apply to the concept of something being retrievable. For something to be retrievable, there must be someone capable of retrieving it; “irretrievable” in this sense does not merely refer to an intrinsic property of the object concerned, but has an intrinsic reference to actions of persons acting on intentions. Whether a situation is retrievable, for example, might depend on whether the person who might have an opportunity to retrieve it is willing to do so. Or it may depend on whether, indeed, they will have an opportunity to do so. We cannot rule out the use of “irretrievable” to mean that there is no opportunity to retrieve a situation, because this is a standard meaning of the term. It makes perfect sense to declare a situation irretrievable and mean by that only that the opportunity to retrieve it, but not the capacity to do so, is not present or not available. We would suggest that “reversible” is more akin to retrievable than soluble. Although CPR need not be performed by doctors or even medically qualified experts, it does require training. Not everyone can perform CPR.43 There is an intrinsic reference to persons acting on intentions in the notion.44 In addition, for the reasons we have already presented, there can be a built-in reference to whether attempts at reversal are even appropriate. Perhaps this aspect of the dispute comes down simply to two different but equally plausible ways of looking at things. Commenting on our analogy with irretrievable, Miller, Truog, and Marquis might say to us: if the only reason a situation is irretrievable is that the opportunity to retrieve it is not available, then you should not call it “irretrievable.” Rather than stating that it is not possible to retrieve it, you should say instead that it is not going to be retrieved in these circumstances. Whereas we are claiming that we simply often mean, by saying that a situation is irretrievable, that the opportunity to retrieve it is not present—and if the opportunity is not present, then it is not possible to retrieve it. We see nothing linguistically or logically awry with this. For the same reasons, these remarks apply to the concept of “reversible.” Finally, it is worth noting that “irreversible” can be used to refer simply to the time at which autoresuscitation is no longer possible, and therefore to the reflexive use of the correlative verb (“autoresuscitate,” “auto-reverse”). When a person autoresuscitates, the person does not do something to himself (he does not attempt CPR on himself); rather, something happens to him. By contrast, when doctors reverse the cessation of circulatory–respiratory function, they are doing something to the patient, and so “reverse” refers to the successful outcome of human actions. Those who rely on permanence believe that the point of irreversibility is reached (a) once the possibility of autoresuscitation has passed and (b) where it is inappropriate to try to reverse the cessation of circulatory–respiratory functioning. We see nothing unreasonable in such a position. It simply clarifies what is otherwise an ambiguity in “reversible”—between the reflexive, nonaction involving use of the term, and its transitive use to refer to the human action of resuscitating someone. If all these remarks still do not convince, consider the following variation of our earlier example. Suppose in 2019, we developed technology that allowed us to restart circulation in some people after two days. Imagine this technology worked best on people under the age of 50 and even then had a moderate success rate of only 30%. On Marquis’s view, we could no longer accurately declare our 92-year-old frail lady to be dead until after the 2 days, because there is a chance, however remote, that she could be revived if the technology were used on her, even though it works best on people under 50. This consequence of his view makes it much less plausible, because it is surely rational here to consider adopting different rules, depending on the category of patient (the under fifty-year-old, on whom it is appropriate to use the technology, and those over 50 on whom it is not). Yet, we see no difference in principle between this imaginary case, and current practice with respect to DCD and non-DCD patients. VII. REVERSIBLE AND CURABLE In response to the claim that the cessation of cardiorespiratory function can be regarded as permanent, Marquis (2010, 26) retorts that while irreversible entails permanence, permanence does not entail irreversibility. A condition that can be cured might not in fact be cured, because the bearer of the condition might not live in a country where it could be cured. But, nobody would say that his condition was irreversible or incurable (Marquis, 2010, 26). At most, it would be said that his condition is permanent (Marquis, 2010, 26). But in such a case, Marquis contends, it is patent that adopting “permanence” is inadequate as a criterion for determining death. Just as with the woman who lives in the wrong country, her condition is clearly reversible, notwithstanding that her condition is permanent, so we should recognize that the cessation of circulatory and respiratory function in DCD patients is reversible, even if it is permanent (Marquis, 2010, 26).45 In reply to Marquis, we agree that permanence does not entail irreversibility, if “irreversibility” means the impossibility of any successful outcomes of specific human actions. But, we believe that it does entail irreversibility if that term refers instead to the impossibility of “auto-reversal,” that is, to autoresuscitation, and the possibility of autoresuscitation has passed. As we have argued above, permanence applies in a context where a necessary condition for the possibility of reversal (in the sense of an outcome produced by human acts of attempting resuscitation) will not occur. These are the cases where we know that the only way that function could be restored is where CPR is attempted, but where we also know that, as with the frail old lady with a DNAR order, it is not appropriate even to try. The very question of whether it is reversible here does not even apply if it is not appropriate to try and reverse it. As we have said, we must remember that our only interest with irreversibility is with whether, in a given case, cardiorespiratory function is in fact going to restart. Once we have ruled that possibility out—in this case and in these circumstances—then we know all we need to know in order to make a diagnosis of death. Marquis’s analogy here is not apposite, because it does not compare what we mean when we say in a DCD case that cessation is irreversible, and what we mean when we say that the woman’s condition is incurable. There is of course a legitimate sense in which we can say that the woman’s condition is not curable if she does not live in a country with the technology or medicine to cure it, but we agree that it would be misleading to state that her condition is incurable. But that is because, regardless of her circumstances, it does remain appropriate to try and cure her if it should become possible for her to travel to the country she needs to get to, or should it become possible to import the needed medicine. A normative limit of the kind we have stressed—where it is not appropriate even to try and reverse a condition—and a mere factual limit should not be confused with each other. It seems to us that, in Marquis’s example, we are dealing only with a factual limit and not a normative one where it would not be appropriate even to try. For this reason, we believe that if we must keep using the word “irreversible”—and in the United States the UDDA does use that term—it is legitimate to read “irreversible” as including “nonreversible” and therefore as having a built-in reference in the circumstances to what it is normatively appropriate to do and therefore what is likely to happen. Another way of expressing this point is to say that a precondition for the applicability of the question of whether a condition is reversible in a given case is whether it is appropriate even to consider trying to find out. If that precondition is not met, then the question of reversibility in the circumstances cannot arise—hence, “nonreversible” is the appropriate term.46 VIII. DEFEASIBILITY AND THE REASONABLENESS OF DIAGNOSIS As with any diagnosis, a doctor diagnosing death can get it wrong. There is, according to Truog and Miller, a particularly interesting way in which a doctor can get the diagnosis wrong in cases where it is not ethically appropriate to try reversing the loss of circulatory and respiratory function. This is a case where a patient’s family might agree to donation, but subsequently change their mind (Truog and Miller, 2010, 17). In a variant of the case of A and B described in section II above, consider the case where A is declared dead after five minutes of asystole and is being wheeled down to the operating theatre for donation purposes, and the family have a change of heart and now want everything possible done to revive the patient. Was the patient dead when death was declared? Suppose that resuscitation is attempted and the patient revives. Has the patient been raised from the dead (Truog and Miller, 2010, 17)? There is a difficulty with this objection. On the authors’ own view, it should always and only have been decided that the patient should become a DCD candidate after a decision has been reached independently of donation that CPR is not appropriate. Thus, even in jurisdictions where consent of a surrogate governs the lawfulness of a decision to withdraw treatment, it should not at this stage be possible for a family to override the decision or to reasonably change their mind. This is all the more so in those jurisdictions where the doctors make the judgment on the basis of the patient’s best interests, and so where the family’s changing its mind could be irrelevant. This is important if, as we have argued, we are speaking of the reasonableness of the diagnosis and we are therefore deciding whether autoresuscitation only has to be ruled out, the times applicable if CPR were an option being inapplicable in this case. At the stage at which it has already been decided, independently of organ donation, that CPR should not be attempted, it is from that point on reasonable to diagnose that the condition will not be reversed, and hence to declare death once the requisite “safe” amount of time, which excludes the possibility of autoresuscitation, has passed. But, let us waive this problem for the sake of argument. If the family does change its mind and the patient revives, then has the patient been raised from the dead on our position? No. The change of mind could be regarded as one of the things we rule out as part of our diagnosis. If the doctor should turn out to be mistaken—the family does change their mind and the patient revives—then they were wrong. That should no more place a question mark on the rationality of diagnosing death in this way than it should place a question mark over any other kind of diagnosis doctors make. Diagnoses are defeasible. It is possible to be wrong. But, the possibility of being wrong—defeasibility—is not defeat. IX. CONCLUSION We do not believe that it is appropriate to have different practices of declaring death in the DCD context from the practices engaged in any other context, nor do we see that the dead donor rule requires any additional burden of proof. Our challenge to Marquis, Miller and Truog, and others sympathetic to their position is to explain how they think death should be declared both within and without that context, given the problems for relying on irreversibility (by reference to resuscitative efforts) that we have discussed in this paper. We have shown that the criterion for declaring death across all contexts is permanence. If irreversibility, as Marquis, Miller, and Truog understand that term, really were the criterion of declaring death, it would only be possible to know if the condition were reversible by attempting resuscitation and failing, or waiting in a death watch for several hours. This is not a reasonable practice of declaring death. We see no reason why DCD should be any different in that regard, because the practice of declaring death in that context is very safe. Although Miller and Truog might claim that there is no equivalent to the dead donor rule outside the DCD context, we have seen that this is not so. We have seen that their position might have implications for the practice of, for example, early autopsies. Here, they could not fall back on any claim that nothing is going to be done to the autopsy patient before they reach the point of being a stone-cold corpse, and it would be quite a significant development in their position if they were to claim that such early autopsies, too, could occur before the point of irreversibility being reached. We believe that the status quo is not, as Miller and Truog have implied, the radical position, in the sense of constituting a significant departure from our historical and current practices of declaring death in the non-DCD context. On the contrary, if we follow the logic of Miller and Truog’s arguments to their conclusion, it is they, we believe, who are offering a radical proposal: the logic of their arguments may require us, for reasons we have presented, to return to the practices for declaring death that were in operation before the development of modern medicine. It is neither necessary nor desirable to take that path. NOTES 1. Donation after Circulatory Death (DCD), or nonheart beating organ donation, was the original type of deceased organ donation before the acceptance of neurological criteria for human death that allowed donation after brain death or heart-beating organ donation. In DCD, warm ischemia begins as the circulation fails; organ viability for transplantation likewise rapidly falls (within 20 min for the liver), and this form of donation was effectively abandoned in most, but not all countries, for 25 years. Over the last two decades, DCD has seen a return in frequency and currently accounts for 40% of all UK deceased organ donation and up to 10% of worldwide deceased organ donation. To minimize warm ischemia and allow successful DCD, there must be either a delay to treatment withdrawal until a surgical team is in readiness to carry out the rapid recovery of the organs after the declaration of death (controlled DCD) or procedures are carried out to maintain organ viability after the declaration of death (uncontrolled DCD). Warm ischemia is also minimized if death can be declared within a short time of the circulation ceasing (five minutes is the most common standard for declaring death in DCD). It is this standard for declaring death that Miller and Truog, and others, criticize and what we defend in this article. 2. This is a surprising concession because in the original article to which Truog and Miller respond, Bernat claimed that these patients are dead (Bernat, 2010a, 13). Bernat explains this seeming inconsistency by claiming that there are two competing approaches to understanding death: the donor after the circulatory determination of death is dead according to the standard accepted by medical practice that requires permanent cessation of circulation but is not dead according to the biological standard that requires irreversible cessation of circulation (see Bernat, 2013). We shall take a different view in this article. We shall claim that the patient may actually be dead, as Miller and Truog concede, according to the biological standard and that this is one reason why the criterion of death adopted in medical practice is the permanent cessation of cardiorespiratory function. 3. Marquis (2010) and Truog and Miller (2010) concede that the possibility of autoresuscitation can be excluded from the debate. However, in their more recent book, Miller and Truog (2012) effectively renounce this claim. We remain unconvinced by their U-turn but cannot argue that point in this article. Similarly, Joffe et al. (2011) have raised questions concerning the widely accepted view that autoresuscitation after this period is not possible. If these authors are right, we concur that a longer period, beyond the typical two to five minutes, would be needed. But, we do not enter into that controversy in this article. 4. And, autoresuscitation was not possible. 5. This was achieved by use of extracorporeal membrane oxygenation (ECMO) resuscitation technology in ethics approved research into the feasibility of using DCD hearts for transplantation. 6. This point is developed further later in the article. It might be objected that it was not the intention of those who proposed the wording that “irreversible” should be understood as meaning permanence. This may be so, but, as any lawyer will be quick to point out, what matters are the intentions of Parliament as manifested in the words of the statute, and not the intentions of those who advised on what the wording should be. By adding the words “the determination of death must be in accordance with accepted medical standards,” Parliament has effectively opened the way for “irreversible” to be construed as having the meaning given to that term by modern medical practice, rather than as having the meaning given to the term by the intentions of those who first suggested it. 7. It might be objected that, while we do not know the precise point at which it is reached, we at least know roughly when it is so. It might be argued that we can know the point is reached, with patients on whom CPR is not attempted, at about an hour after death. It is true that nobody would attempt to bring such a patient back after an hour, but this is because the patient would either be brain dead or left in a vegetative state. It does not follow, however, that we know that the heart could not still be made to contract at least once or twice much further down the track than one hour. While this might seem pedantic, it must be recalled that it is our opponents here who are insisting on the irreversible cessation of circulatory–respiratory function, and so the possibility of the heart at least contracting once or twice means that the patient would still not be dead on their logic. As DeVita (2001, 62–5) points out, “If the potential for reversibility of arrest is the sole criteria [sic], then death should not be certified for several hours” and “a much longer duration of arrest must occur before determining death in a controlled setting because restoration of spontaneous circulation is possible hours after cessation of circulation.” 8. As noted above, we leave aside the separate controversy about whether we really know enough to rule out autoresuscitation between two and five minutes in controlled DCD. We believe that autoresuscitation would have to be ruled out and that if new studies show that autoresuscitation can indeed occur after five minutes in controlled cases, we would need to wait for a longer period than five minutes. 9. It is worth noting here that it is sometimes lay parlance to describe someone who suffers a cardiac arrest but who is later revived as having died and then been brought back to life. For example, “I died three times on my way to hospital.” On that view, both A and B would be dead, but B would be brought back to life on successful CPR. In adopting this way of speaking, the layperson departs from the accepted medical use of the term “death”—barring some exceptions (Parnia, 2013), and it is simply a misguided vernacular way of describing the simple fact that the person never died to begin with. But, there is an important lesson to be derived from these differing uses. We could, in principle, define our words differently from the way we currently do. No definition of a word is absolutely necessary—all words, including the word “death,” are given their meanings by human beings. No word has its meaning dictated to us by the world, although the world does, of course, have a significant say. As Hart (1958, 607) puts it: “The facts and phenomena to which we fit our words and apply our rules are as it were dumb . . . Fact situations do not await us neatly labelled, creased, and folded.” We suggest, in the following paragraphs and in more detail later in the paper, that irreversibility was made a necessary condition for the correct application of “dead” to someone on the basis that doctors should not stop doing all they can for a patient until the patient is well and truly beyond the reach of anything doctors can do. But, we need not have done so. We could instead have allowed that death would have occurred in some circumstances, even if a person could later be revived. This is shown by the fact that even laypersons accept that we can apply the word death without fulfilling the requirement of irreversibility as understood by Miller and Truog. While adopting such a rule would also rule out our permanence criterion, that problem could be overcome by modifying the layperson definition to mean that the heart has permanently stopped. Our point here is this: if even on some uses of the word death, a person can be said to have died when his heart only temporarily stopped, it is all the more reasonable to claim that a person has died when his heart has permanently stopped, and it is only this latter claim that we wish to endorse. This debate could be partly semantic, with Miller and Truog recommending that we cleave to a definition of death in which biological irreversibility of, rather than permanent cessation of, cardiorespiratory function be the defining criterion for death. We say “partly” because, of course, which definition we choose will have different consequences—we will argue below that there are some unacknowledged consequences of the Truog and Miller recommendation. 10. For a much more detailed argument on this point, see McGee and Gardiner (2017a). 11. We thus reject Miller and Truog’s (2012, 70–1) proposed definition of death, “. . . as the moment at which the integrated functions of the organism as a whole irreversibly cease, as determined by when the forces tending to increase entropy irreversibly overcome those that are opposing it . . . irreversible cessation of [sustained circulation and respiration] is therefore a sufficient criterion for declaring death.” We would envisage that only the commencement of cellular disintegration and the onset of putrefaction would signal Miller and Truog’s point, but irreversible cessation of the circulation and respiration will have occurred before that point regardless of whether we are declaring death with donation in mind or not. 12. The argument that “irreversibility” as understood by the critics of death declaration in DCD is a normative requirement is developed much more extensively in McGee and Gardiner (2017a). 13. The criterion of permanence is based on intention (will the technology be used) and human physiology (the chances of autoresuscitation). 14. Parnia is a doctor and resuscitation researcher who in his bookThe Lazarus Effect (2013) has strongly advocated the use of more aggressive resuscitation technologies such as hypothermia and ECMO by highlighting the many cases where such resuscitation techniques have saved the life of a patient. 15. We discuss the implications for the declaration of death if relatives “change their mind” below. In section V, we also discuss the objection that the absence of an equivalent to the dead donor rule in the nondonation context means we need to distinguish DCD and non-DCD cases. 16. See also Miller and Truog (2012, 69): “We endorse the biological definition of death as the irreversible cessation of the functioning of the organism as a whole.” 17. We accept that this is not a claim that Truog and Miller expressly make, but we believe it is important to highlight the logical consequences of insisting on irreversibility and the radical changes in death behaviors that might arise if the criterion of irreversibility was simply accepted and adopted into clinical practice. We discuss the claim that irreversibility need only be insisted upon in the donation context below. 18. See Hagiwari, Yamada, and Furukawa (2011, 790–1): survival after 385 minutes of cardiopulmonary resuscitation with extracorporeal membrane oxygenation and rewarming with hemodialysis for hypothermic cardiac arrest. 19. Again, we discuss construals of the irreversibility criterion that might avoid this consequence below. 20. DeVita (2001) cites the early work of Kountz (1936). Perfusing hearts removed from 127 dead bodies, via the coronary arteries and great vessels, Kountz claimed that in two of ten cases, spontaneous contraction was initiated six hours after death. Given that highly selected hearts today are restarted in recipients of transplants many hours after removal from donors (though cooling of course assists in making these hearts viable), Kountz’s claim seems entirely credible. 21. Miller and Truog would, we believe, reject this contention that some of our practices would have to cease. We discuss this issue below. 22. Shewmon (1998, 142) is right to identify the importance of temperature, as hypothermia will slow the rate of decay in the body. Hypothermia explains why resuscitation can sometimes be successful in patients who have been drowned or in cardiac arrest for many hours. 23. See footnote 20. The resuscitation researcher Parnia goes even further and has claimed, when publicizing his book Erasing Death, “It is possible that in 20 years, we may be able to restore people to life 12 hours or maybe even 24 hours after they have died” (Spiegel Online International, 2013). 24. Miller and Truog would deny this, claiming that there are reasons for distinguishing other cases from DCD cases. We anticipate and deal with this possible reply below. 25. This is the case even if the doctors in question do not fully understand the history for their practice or the justification. 26. This balance between safety and timeliness is fundamental to doctors’ diagnostic criterion for death and the societal reason doctors are given the duty of declaring death. 27. There is an irony that 150 years after Bouchut there is significant debate in DCD practice between two and five minutes. 28. We leave aside the controversial practice that was reported in 2008 in the New England Journal of Medicine where a child’s heart was retrieved 75 seconds after asystole (Boucek et al., 2008). 29. Yet, as we have argued, it is difficult to see why we need to wait that extra period of time in cases where CPR is not itself applicable. 30. Warm autopsies allow the pathologist to remove tissue for ongoing examination (often for research purposes) before decomposition and hypothermia cause further damage. 31. This becomes important because the burials are in reality only going to occur between certain hours, say, 0800–1800. Assuming these hours, if such a patient dies at 0600 then he or she needs to be buried by 1800 (12 hours), because if we wait for burial the next day the deceased will miss the 24 hour requirement. 32. In the case of R v Malcherek; R v Steel [1981] 2 All ER 422, Lord Lane made the incidental remark that the postmortem was carried out 50 minutes after the death of the victim, suggesting that in the area of forensic cases there will be other examples where quick autopsies have occurred. 33. Miller and Truog are not able to reject this conclusion, as they might in the case of our 92-year-old lady, by claiming that nothing of any significance is going to be done to the patient before the patient becomes a stone-cold corpse. Clearly, the warm autopsy will be performed before this point. See, for more argument on this point, page 17. 34. Note that these points answer an objection raised by an anonymous reviewer. The reviewer objected that, for Miller and Truog, it would be just as unnecessary to have a “dead body autopsy rule” as it is to have the dead donor rule, and so we may be setting up a “straw man.” Miller and Truog’s point, according to the reviewer, is that only for those who hold that the DDR, or any equivalent to the DDR outside the donation context, is necessary is the difference between dying and death a crucial issue. We agree that Miller and Truog may answer our contentions in this way. But, in reply, as just noted, we should not declare death unless we believe it has actually occurred. If we know it has not occurred when we declare it, then we simply should not be declaring it when we do. This is one reason for cleaving to the DDR and any equivalent. Further, we also think that if Miller and Truog took the view that any equivalent to the dead donor rule in respect of non-DCD practices (such as autopsy, early burial, etc.) is not necessary or should be abandoned, this would be a significant development in their position and it is not one that they expressly endorse anywhere in their texts. They certainly have not claimed that it is permissible to perform autopsies and burials on people before they are actually dead (because, for example, they are “as good as dead”). Broadening their claims to these other practices, as the reviewer suggests, would be tantamount to the view that we need not declare death or be sure that it has occurred before carrying out an autopsy or early burial. Much argument would be needed to defend such a controversial claim. Note, too, that we are responding in the text to the point Truog and Miller expressly make that we have to be more careful when declaring death in organ donation contexts than we do when declaring death outside that context because, outside that context, we can rely on routine hospital practice to ensure that death actually does occur (they assert that “the routine flow of hospital activity will provide an adequate death watch to ensure that the criteria for irreversibility are satisfied” [italics added, Truog and Miller, 2010, 17]). This point is not compatible with taking Miller and Truog to be claiming that death need not occur before warm autopsies are undertaken, because the point they actually make (as cited here) expressly relies on death actually occurring in the non-DCD context. Their point is that death will eventually occur in the non-DCD contexts, but has not occurred in the DCD context at the time organs are procured—our response being that death will not have occurred outside the DCD context either in many cases, including the case of early autopsies. 35. Many of these points apply equally well internationally. 36. See Collicott (1985). 37. For examples of misdiagnoses reported in the media, see British Broadcasting Corporation (2008); Daily Mail (2013) and British Broadcasting Corporation (2014); for reports by health authorities, see National Patient Safety Agency (2012). 38. See our remarks on autoresuscitation in note 3. 39. This point is only relevant to controlled DCD, also known as Maastricht III category nonheart beating donation, which is the most common form of DCD in the United States and the United Kingdom. 40. The report by the Judicial Council was in the same edition in JAMA where the Ad Hoc Committee of the Harvard Medical School defined irreversible coma as a new criterion for death. The authors would have been well aware that donation up until that point had all been DCD, such that if there had been concern over the determination of death in DCD contexts, or a desire that a higher burden of proof be required in either death determination standard, one would have expected it would have been made. 41. The United Kingdom has adopted the same standard for all deaths after cardiorespiratory arrest, regardless of donation, and thus fully satisfies the 1968 Council’s wording and, were it applicable, the UDDA. 42. Thanks to an anonymous reviewer for this reference. 43. CPR is more accurately referred to as basic life support, and the public can be trained in CPR. What hospital staff and ambulance officers carry out is advanced life support (incorporating resuscitation drugs, defibrillation techniques, and airway treatments) and requires additional training. 44. It might be objected that this is not so, because the condition can be reversed in some cases by autoresuscitation, which clearly does not involve the actions and intentions to which we have just referred. This is true enough, but the normal term is simply that the patient has autoresuscitated. We can of course say that the condition reversed itself, or spontaneously reversed, but the reflexive use of the verb is different from its transitive use, and so differs from the verb we use in contexts where spontaneous resuscitation has been ruled out as a possibility. The difference remains between reversible and fragile discussed above in the context of CPR patients. Also, when critics of DCD make these points about reversibility, they are making them against those who acknowledge that autoresuscitation must be ruled out. They are therefore objecting that the condition is reversible, where “reversible” exclusively refers to actions of people acting on intentions, such as CPR. 45. We have very slightly modified and embellished Marquis’s example. 46. It might be objected that if the heart is the organ that is transplanted, and the heart is restarted in the recipient, then we know that it could have been restarted in the donor (Marquis, 2010, 25–6; Miller and Truog, 2012, 104–5). This is not quite right. It is harder to start the heart in the donor than in the recipient because dying leads to changes in the body resulting in conditions such as acidosis which, during CPR situations, makes successful CPR less likely. So we cannot necessarily infer from the fact that it is started in the recipient that it could have been restarted in the donor. Furthermore, as we have argued, the question is whether it is appropriate to attempt to restart the cardiorespiratory function in the donor; if it is not appropriate, then the cessation is permanent in the donor and death can be declared. If the heart is restarted in the recipient, it is not the donor who is revived. Rather, it is the cardiorespiratory function of the recipient that is restarted. Even champions of the irreversibility criterion must agree with this; otherwise, they are forced to claim that the donor remains alive long after the rest of the donor has been cremated, simply on account of the fact that the donor’s heart is beating in another person. We discuss heart transplantation in detail in McGee and Gardiner (2017a). See also McGee, Gardiner, and Murphy (2018), and McGee and Gardiner (2017b). ACKNOWLEDGMENTS We would like to thank Dr Melanie Jansen for patiently proof-reading the article and for her many comments and suggestions. We also thank Dr Franklin Miller for comments on our criticisms of Marquis in section VI. Finally, many thanks to two anonymous reviewers for very helpful comments. REFERENCES Ali, A., P. White, K. Dhital, M. Ryan, S. Tsui, and S. Large. 2009. Cardiac recovery in human non-heart-beating donor after extracorporeal perfusion: Source for human heart donations? Journal of Heart and Lung Transplant  28(3): 290– 3. Google Scholar CrossRef Search ADS   Bernat, J. 2010a. Point: Are donors after circulatory death really dead, and does it matter? Yes and yes. Chest  138(1): 13– 6. Google Scholar CrossRef Search ADS   ———. 2010b. Rebuttal. Chest  138(1): 18– 9. ———. 2013. On noncongruence between the concept and determination of death. Hastings Center Report  43(6): 25– 33. Boucek M., C. Mashburn, S. M. Dunn, R. Frizell, L. Edwards, B. Pietra, and D. Campbell. 2008. Pediatric heart transplantation after declaration of cardiocirculatory death. New England Journal of Medicine  359(7): 709– 14. Google Scholar CrossRef Search ADS   Bouchut, E. 1849. Traité des signes de la mort et des moyens de prévenir les enterrements prématurés [On-line]. Available: https://archive.org/details/traitdessignes00bouc (accessed December 11, 2017). British Broadcasting Commission. 2008. Patients wrongly certified dead. BBC News  [On-line]. Available: http://news.bbc.co.uk/1/hi/uk/7419652.stm (accessed December 11, 2017). ———. 2014. Kenyan ‘corpse’ wakes up in Naivasha Mortuary. BBC News  [On-line]. Available: http://www.bbc.co.uk/news/world-africa-25681048 (accessed December 7, 2017). Collicott, P. 1985. Advanced Trauma Life Support Course for Physicians . Chicago: American College of Surgeons. Daily Mail. 2013. ‘Dead’ baby wakes up and starts screaming at Chinese funeral parlour just moments before cremation. Daily Mail News  [On-line]. Available: http://www.dailymail.co.uk/news/article-2511120/Dead-baby-wakes-starts-screaming-Chinese-funeral-parlour-just-moments-cremation.html (accessed December 11, 2017). DeVita, M. 2001. The death watch: Certifying death using cardiac criteria. Progress in Transplantation  11(1): 58– 66. Google Scholar CrossRef Search ADS   Gardiner, D., and D. Shaw. 2014. Time to diagnose death in modern hospital practice. Functional Neurology, Rehabilitation, and Ergonomics  4(2–3): 107– 11. Goldberger, Z., P. S. Chan, R. A. Berg, S. L. Kronick, C. R. Cooke, M. Lu, M. Banerjeeet al.   2012. Duration of resuscitation efforts and survival after in-hospital cardiac arrest: An observational study. The Lancet  380(9852): 1473– 81. Google Scholar CrossRef Search ADS   Hagiwari, S., T. Yamada, and K. Furukawa. 2011. Survival after 385min of cardiopulmonary resuscitation with extracorporeal membrane oxygenation and rewarming with haemodialysis for hypothermic cardiac arrest. Resuscitation  82(6): 790– 1. Google Scholar CrossRef Search ADS   Hart, H. L. A. 1958. Separation of law and morals. Harvard Law Review  71(4): 593– 629. Google Scholar CrossRef Search ADS   Hornby, K., L. Hornby, and S. Shemie. 2010. A systematic review of autoresuscitation after cardiac arrest. Critical Care Medicine  38(5): 1246– 53. Google Scholar CrossRef Search ADS   Joffe, A., J. Carcillo, N. Anton, A. deCaen, Y. Han, M. Bellet al.   2011. Donation after cardiocirculatory death: A call for a moratorium pending full public disclosure and fully informed consent. Philosophy, Ethics, and Humanities in Medicine  6(1): 17– 20. Google Scholar CrossRef Search ADS   Judicial Council of the American Medical Association. 1968. Ethical guidelines for organ transplantation. JAMA  205(6): 341– 2. Knipe, M., and J. Hardman. 2013. Past, present and future of ‘Do not attempt resuscitation’ orders in the perioperative period. British Journal of Anaesthesia  111(6): 861– 3. Google Scholar CrossRef Search ADS   Kountz, W. 1936. Revival of human hearts. Annals of Internal Medicine  10(3): 330– 6. Marquis, D. 2010. Are DCD donors really dead? Hastings Center Report  40(3): 24– 31. Google Scholar CrossRef Search ADS   McGee, A., and D. Gardiner. 2017a. Permanence can be defended. Bioethics  31(3): 220– 30. Google Scholar CrossRef Search ADS   ———. 2017b. The Papworth donation-after-circulatory-death heart technique and its challenge to the permanence standard. Journal of Heart and Lung Transplantation  37(2):311. McGee, A., D. Gardiner, and P. Murphy. 2018. Determination of death in donation after circulatory death: an ethical propriety. Current Opinion in Organ Transplantation  23:114–9. McKitrick, J. 2003. A case for extrinsic dispositions. Australasian Journal of Philosophy  81(2): 155– 74. Google Scholar CrossRef Search ADS   Miller, F., and R. Truog. 2012. Death, Dying and Organ Transplantation . New York: Oxford University Press. National Conference of Commissioners of Uniform State Lawyers. 1981. Uniform Determination of Death Act [On-line]. Available: http://www.uniformlaws.org/shared/docs/determination%20of%20death/udda80.pdf (accessed December 9, 2017). National Patient Safety Agency. 2012. Diagnosis of death after cessation of cardiopulmonary resuscitation. NPSA . http://www.nrls.npsa.nhs.uk/resources/?entryid45=132973 (accessed December 11, 2017). Parnia, S. 2013. The Lazarus Effect . London, United Kingdom: Random House. Shah, S., and F. Miller. 2010. Can we handle the truth? Legal fictions in the determination of death. American Journal of Law and Medicine 36(4):540–85. Shah, S., R. Truog, and F. Miller. 2011. Death and legal fictions. Journal of Medical Ethics  37(12): 719– 22. Google Scholar CrossRef Search ADS   Shewmon, A. 1998. “Brainstem death,” “brain death” and death: A critical re-evaluation of the purported equivalence. Issues in Law and Medicine  14(2): 125– 45. Spiegel Online International. 2013. Back from the dead: Resuscitation expert says end is reversible. Spiegel Online International  [On-line]. Available: http://www.spiegel.de/international/world/doctor-sam-parnia-believes-resurrection-is-a-medical-possibility-a-913075.html (accessed December 11, 2017). Truog, R., and F. Miller. 2010. Counterpoint: Are donors after circulatory death really dead, and does it matter? No and not really. Chest  138(1): 16– 8. Google Scholar CrossRef Search ADS   © The Author(s) 2018. Published by Oxford University Press, on behalf of the Journal of Medicine and Philosophy Inc. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png The Journal of Medicine and Philosophy Oxford University Press

Donation After the Circulatory Determination of Death: Some Responses to Recent Criticisms

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Abstract

Abstract This article defends the criterion of permanence as a valid criterion for declaring death against some well-known recent objections. We argue that it is reasonable to adopt the criterion of permanence for declaring death, given how difficult it is to know when the point of irreversibility is actually reached. We claim that this point applies in all contexts, including the donation after circulatory determination of death context. We also examine some of the potentially unpalatable ramifications, for current death declaration practices, of adopting the irreversibility criterion. cardiopulmonary standard, circulatory–respiratory criterion, CPR, criterion for declaring death, DCD, dead donor rule, declaration of death, definition of death, donation after circulatory determination of death, ECMO, irreversibility, organ donation, organ transplantation, permanence, permanent cessation of circulatory function, reversible I. INTRODUCTION For donation after circulatory determination of death, the dead donor rule requires that, before organs can be procured from donors, the donors must be determined to be dead (Miller and Truog, 2012, 113). For such a donor to be dead, the relevant part of the legal definition of death requires that the cessation of circulation be irreversible. In standard medical practice, “irreversible” has been construed to mean either (a) not capable of being reversed by resuscitative efforts, or (b) not capable of autoresuscitation. The latter construal is used to determine death where the resuscitative efforts referred to in (a) are not appropriate and so are ethically ruled out—the patient might have a do not attempt resuscitation order (DNAR), for example, and so, with these patients, it is only considered necessary to exclude the possibility in (b). A number of critics have objected to this standard practice, claiming that patients declared dead on the basis of the impossibility of autoresuscitation alone are not dead (Marquis, 2010, 31; Truog and Miller, 2010, 17; Miller and Truog, 2012, 99)1—or, in an important qualification whose implications they do not address, they are at least not known to be dead—and we should therefore stop “pretending” that they are (Marquis, 2010, 31; Truog and Miller, 2010, 17). Truog and Miller, in particular, have argued that a consequence of this conclusion is that the dead donor rule must be abandoned (Truog and Miller, 2010, 18; Miller and Truog, 2012, 113). Given that patients are not dead—or not known to be dead—when the organs are recovered, Truog and Miller claim that we need to shift the focus of ethical inquiry from when it is legitimate to declare a patient dead to when it is legitimate to procure vital organs (Truog and Miller, 2010, 18). Abandonment of the dead donor rule, they claim, does not necessarily mean that procuring the organs from these patients is unethical. Bernat, in a debate with Truog and Miller, disagrees with these claims. Perhaps surprisingly, he concedes that, strictly speaking, the patients are not dead2 at the time at which they are declared to be dead. He claims that it is perfectly legitimate to engage in what he calls the “early practice” of declaring death on the basis of a “valid surrogate marker for irreversibility,” namely, permanence (Bernat, 2010b, 19). Medical practitioners declare death in this way all the time in a very different range of contexts. Most hospital death determinations are made at the moment of asystole (Bernat, 2010b, 19; Truog and Miller, 2010, 17). Society permits practitioners to declare death earlier in this way for social benefits, rather than awaiting signs of rigor mortis, putrefaction, or other unequivocal signs of circulatory irreversibility (Bernat, 2010b, 19). For this reason, it is unnecessary to abandon the dead donor rule. We aim here to mount conceptual challenges to the claims made by each of these authors from both sides of the debate. For reasons we shall see, it is legitimate to declare death in donation contexts because, unless autoresuscitation is a genuine possibility, the patient will actually be dead. In defense of this claim, we will advance the following points, for which we will provide detailed arguments in the rest of the article: Being dead and being known to be dead are different things (a person may be dead without our knowing that the person is dead). By recognizing this distinction when they add the qualification “or at least not known to be dead,” Marquis, Truog, and Miller effectively concede that the patient might in fact be dead when death is declared. If this were not so, the qualification would be unnecessary. This has significant ramifications for their criticisms of death declaration in donation after circulatory death (DCD). The question, however, is: when is it reasonable to claim that we know someone has died? What has to be ruled out? What has to be ruled out is a counter-possibility that is a genuine possibility in the circumstances. If there is no reason to believe that autoresuscitation is a genuine possibility (we are beyond the time at which this can occur),3 then that possibility has been ruled out. If cardiopulmonary resuscitation (CPR) is, from that point on, the only gateway to resuscitation, and if CPR is inappropriate, we know all there is to know to justifiably declare that a patient has died. This does not mean that death is declared early, before it has occurred. Rather, it means that death has occurred. We can say that circulatory and respiratory function is “irreversible” at the point at which circulatory and respiratory function has stopped and autoresuscitation is not possible. To reject the current practice for death determination in DCD may logically require us, for reasons we shall provide, to reject many more death determinations in modern hospitals as equally wrong—far more than critics of DCD would themselves acknowledge. For example, it could mean warm autopsies could no longer be carried out. This is because nobody knows the precise point at which it would be impossible to get the heart to contract, for at least one beat after asystole, even if the commencement of CPR is delayed for a substantial period of time. We must distinguish here between whether we would attempt to revive someone after a certain time has passed, and whether we could in principle make the heart contract after such time has passed. Irreversibility (defined by reference to the failure of all attempted or attemptable human efforts at resuscitation) requires the latter be ruled out in all situations for death to be declared. The dead donor rule (DDR) is best interpreted in its historical context, as a self-evident rule advanced to protect vulnerable patients from a relaxation of the usual standard for death determination, not as an additional requirement on medical practitioners, owing to the consequences of organ donation, for a higher burden of proof. Contra Marquis, “irreversible” is not like “insoluble” but more like “irreparable” and “inoperable.” It partly depends on skill, and on what we are prepared to do, so it should be understood as meaning permanence. It is also, however, unlike “incurable”—at least as Marquis himself explains the application of that term—for reasons we explain. If the patient’s relatives changed their mind and required an attempt at CPR after the declaration of death, and the patient actually revived, that would be a defeating condition. If no defeating conditions are actualized, the patient was actually dead when he was declared to be dead, rather than later on, when the defeating conditions were not in fact actualized. This is because the cessation of circulatory function was permanent from that time. If the defeating conditions are actualized, by contrast, then the patient was not dead when we thought he was. Declarations of death are defeasible. But, defeasibility is not defeat. II. BEING DEAD AND BEING KNOWN TO BE DEAD In several places, as stated in our introduction, Miller and Truog qualify their claim that DCD patients are not dead by adding the rider “or at least are not known to be dead” at the time the organs are recovered (Truog and Miller, 2010, 17; Miller and Truog, 2012, 99, 112). This qualification concedes that the patients might actually be dead on the irreversibility criterion after all. If this were not so, the qualification “or at least not known to be dead” would not be necessary. We believe this problem to have significant ramifications for their position, because it shows that the question is really about the reasonableness of the diagnosis of death, given the uncertainty about when death, on the irreversibility criterion, occurs and how it can be verified to have occurred. The reason they add the qualification “or at least not known to be dead” is that any attempt at CPR may be unsuccessful, even if given immediately. In the case of controlled DCD, a decision has already been taken, independently of organ donation, to withdraw life-sustaining measures from the patients and, even if CPR were wrongly attempted on them after the onset of asystole, many would still not revive due to the negative inotropic effects of acidosis and other metabolites in the donor. If CPR would not be successful, the patient was already dead, even on irreversibility criterion. Loss of respiratory and circulatory function can be irreversible at any stage after it is lost, even though reversal is much less likely, the further down the track we go. There is a stage at which any attempt at CPR is pointless regardless of the category of patient, but it does not follow from this that it is only from that stage onward that the loss of respiratory and circulatory function is irreversible. It might have been irreversible much earlier, because CPR attempts would have failed.4 And if it were irreversible, it was so from the time the heart stopped. Also, leaving aside the cases where negative inotropic effects of acidosis and other metabolites render CPR futile, there are “DCD like” cases where restoration of spontaneous circulatory function inside the body has been achieved, in one case 23 minutes after cardiorespiratory arrest (Ali et al., 2009),5 but where it would normally have been reasonable to declare death before this point. We need an account of the reasonableness of declaring death that deals with these unusual cases. We provide this account later in this article. In brief, we contend that it is far more defensible to adopt permanent cessation of circulatory–respiratory function if the patient is notknown to be dead on the irreversibility criterion, than it is if the patient is knownnot to be dead on the irreversibility criterion. In the latter case, there is a blatant falsehood. In the former case, there is not—the patient could be irreversibly lifeless. Pragmatic reasons to do with the timeliness of the diagnosis, the difficulty of stating the moment of irreversibility with any precision, and the inappropriateness of CPR (CPR being a precondition to the possibility of a reversal of the cessation of circulatory–respiratory functioning) can combine to lead society reasonably to adopt the criterion of permanence in these cases. This is all the more so when we consider (as we shall see later) that “irreversibility” was itself a requirement that was only built into our understanding of death on the development of modern forms of resuscitation as these methods became widely practiced. So Miller and Truog’s rider is a significant qualification on their view. When they claim that these patients are not irreversibly dead, their case looks strong because it looks like the adoption of permanence is the adoption of a blatant falsehood. When instead they claim that the patients are not known to be irreversibly dead, their case is weaker because they are conceding that in fact the patients may be irreversibly dead. Given (as we shall show) the difficulty in identifying with precision the point at which irreversibility is achieved, it is far more reasonable to adopt the pragmatic solution of relying on permanence if these patients might already be irreversible. Bernat rightly recognizes that we declare death on the basis that the cessation of respiratory and circulatory function is permanent (Bernat, 2010a). However, he misdescribes the practice by stating that “[p]ermanent cessation of circulation constitutes a valid proxy for its irreversible cessation because it quickly and inevitably becomes irreversible and because there is no difference in outcome between using a permanent or an irreversible standard” (Bernat, 2010a, 14). Formulating the point in this infelicitous way leaves him open to precisely the objection that Truog and Miller make, namely, that this confuses a prognosis with a diagnosis (Truog and Miller, 2010; Joffe et al., 2011). We believe he is pushed into doing so because of the wording of the United States’ Uniform Determination of Death Act (UDDA), on which most death statutes in the United States are based (Bernat, 2010a, 13, 15). This relevantly requires that “a person who has sustained . . . irreversible cessation of circulatory and respiratory functions . . . is dead.” Because the word “irreversible” is used, Bernat has to equate death with irreversible cessation of circulatory and respiratory function, but the act also adds that a “determination of death must be made in accordance with accepted medical standards,” and, in practice, the standard of death determination in modern hospitals is permanent cessation of circulatory and respiratory function (National Conference of Commissioners of Uniform State Lawyers, 1981).6 It is this latter requirement, in combination with the former wording in the section where the word “irreversible” is used, that leads Bernat to claim that permanence is a “valid proxy” for irreversibility. By contrast, we believe that permanence is not merely a proxy for irreversibility, but a way of knowing whether circulatory and respiratory function will be reversed or not; in many cases, we only need to rule out the possibility of autoresuscitation before diagnosing death. We do not need to rule out resuscitation via CPR (or other resuscitative efforts), because CPR in these cases is not appropriate, yet CPR is the only way resuscitation could occur. Requiring us to rule out the possibility of resuscitation via CPR, when CPR does not apply, is like requiring us to judge whether a train is on time by reference to the timetable for a different train. So, we believe that the requirement of determination of irreversibility “in accordance with accepted medical standards” effectively means that we can interpret “irreversibility” to mean permanence, rather than merely to stand proxy for it, for reasons we shall now explain. How can we justifiably have different standards of death determination, depending on the category of patient? In a given patient in front of us, once we know that the point of possible auto-reversal has passed, what else we need to rule out can depend on the circumstances, including how it is permissible to treat the patient. To take a different case, if a certain treatment is contraindicated (say, e.g., that a treatment would foreseeably cause an anaphylactic reaction), then, once it has been adjudged contraindicated, it is not necessary to take into account any possible benefits that treatment may have had in ascertaining whether the patient can be cured by that treatment or whether instead the patient’s condition is terminal. For this has already been taken into account in assessing whether the treatment is contraindicated. Death determination is no different in principle from this case. In any given case, we want to know if the cessation of circulation is final or not; we do not want to know if the cessation could, in other circumstances, be reversed in principle. For instance, when declaring the death of a 92-year-old frail lady with DNAR order, we are not interested in whether her heart could be restarted in principle because she has clearly indicated that the treatment required to achieve this is not permissible in her case. Remember that if the heart can be made to contract at least once, regardless of the quality of function to which it could be restored, then irreversibility proponents are committed to the claim that this patient is not (known to be) dead. If irreversibility, understood by reference to CPR, really were the criterion for determining whether this lady had died, we would need either to make efforts to resuscitate her, and fail, or wait for sufficient time to have passed until CPR would never be effective before we could declare her dead. If, instead of trying CPR, we wait for a period of time until we believed irreversibility had been achieved, there is a difficulty which we discuss in detail below. This is the difficulty that nobody can identify with any precision the point at which irreversibility is reached. These facts make it rational to distinguish between patients for whom CPR is appropriate and those for whom it is not. If we do not know when the point of irreversibility with CPR is reached,7 but CPR is not appropriate, then, in these cases, the difficulty of identifying the latest point at which a person can revive with CPR is not a relevant question. To put the point another way: if the only gateway to reversibility is CPR, but CPR is not appropriate, then we know all there is to know to declare death. This is a diagnosis, not a prognosis, because we are not predicting that, at some point in the future, an attempt at CPR will fail. We are relying instead on the fact that CPR is inapplicable. One problem with this approach highlighted both by Truog and Miller and by Marquis is that it seems to lead to the conclusion that A might be in exactly the same biological condition as B, yet A will be dead and B will be alive. Thus, if A is a donor candidate two to five minutes after asystole, and it is inappropriate to attempt CPR, A will be dead. Whereas B, a CPR candidate also two to five minutes after asystole, will not be (Truog and Miller, 2010, 17). This seems absurd. However, it is important to recall the distinction between being dead and being known to be dead. First of all, the physiological state of a controlled DCD candidate may be different from the footballer who collapses during a football game and whose heart has stopped for at least two to five minutes. As discussed above, the condition of the DCD patient may be different because the cardiorespiratory arrest follows a period of profound hypoxia and acidosis rather than a direct cardiac event. This may mean the controlled DCD patient would be harder to resuscitate successfully than the footballer. Second, if the condition is biologically irreversible (i.e., by human efforts), both A and B will be dead. The condition could be biologically irreversible after two to five minutes in both A and B. If it is only normatively irreversible (it is not appropriate even to try and resuscitate) in one of the two cases (case A), then only A will be known to be dead. But, A will be known to be dead on the basis that autoresuscitation will not occur.8 A is not known to be irreversibly dead, that is, on the basis that CPR efforts would be unsuccessful. But unless we try CPR, we do not know this even after many hours (for argument on this point, see below)—long after the point at which both A and B would be adjudged to be dead in current medical practice. Again, at two to five minutes, only an attempt at CPR would tell us this—A might already be dead on the irreversibility criterion, as might B. It is because we do not know whether either A or B are truly irreversible even for several hours that we declare death on the basis of permanence in both A and B.9 Are we not nonetheless conceding here that A is not biologically dead? Even if, for the sake of argument, we accepted that biological death is defined as exclusively irreversible cessation of circulatory–respiratory functioning rather than its permanent cessation, we are still not conceding that A is alive (a claim that would entail that A is knownnot to be biologically dead). At most, we are conceding that A is notknown to be biologically dead on the irreversibility criterion as tied to human efforts. But, we reject the claim that a person is not known to be biologically dead unless and until the patient would not revive even with CPR. We do not accept that irreversibility, where that concept is defined by reference to human actions of resuscitation, is an essential requirement for biological death.10 Death, we contend, should be defined as the condition of being permanently lifeless in any relevant circumstance.11 “Relevant circumstance” refers either to cases where CPR is appropriate, or to cases where it is not. In circumstances where CPR is not appropriate, we do not need to apply the time frame that applies where CPR could be given for the first time and the patient not revive, which is what we need to know in order to know a patient is irreversibly dead. We can invoke an imaginary case to help with this argument. Imagine that it became possible to make the heart contract in someone’s body 2 days after asystole, but that it is never worthwhile restarting the heart because all brain and body function could not be restored sufficiently to provide any quality of life. On the views of these authors, nobody would now be known to be dead on the cardiopulmonary criterion until after this 2 day period. All death declarations before this point would have to be made on the permanence standard. We see no argument as to why it would be wrong or irrational to adopt this permanence standard for declaring death in such a case. But if that is so, why should the fact that it is a time period of 2 days rather than two to five minutes make a difference? The focus should therefore be on the fact that the heart has stopped and on whether the cessation of the heart is permanent or not. “Irreversibility” is no less a criterion of death of our choosing than is the criterion of permanence, and the concept of irreversibility itself embodies a norm stipulating that everything should be done before we call a patient dead.12 Before the advent of resuscitation techniques, for example, the concept of irreversibility as defined by human efforts to resuscitate had not even been forged. “Irreversibility” was only built in to our modern concept of death when CPR and other resuscitative measures became widely practiced, and rather than holding that we had discovered ways to bring people back from the dead (in spite of some lay parlance that persists with this way of describing such cases), society chose to say that we should not declare these people to be dead until all efforts have been made to revive them. The requirement to do all that is possible to revive a patient is not, however, always appropriate, so we need a definition of death that reflects this and the current practice that relies on it. Permanence does so because in both cases—cases where CPR is not appropriate and cases where it is—we do not declare death until confident the cessation is permanent. The category of the patient enables us to know when permanent cessation is reached. There is another reason for preferring permanence over irreversibility. This is that irreversibility is always and inevitably technology dependent, whereas a diagnosis of permanence is not.13 For example, consider the existence of extracorporeal membrane oxygenation (ECMO) resuscitation technology. What stops us using this technology in the countless cases in which we do not use it?14 Considerations of its appropriateness or suitability for the circumstances in question are the factors that determine its use or suitability. The creation of ECMO technology did not suddenly result in the invalidation of all deaths declared in cases where we would not even contemplate using this technology, nor does it invalidate all such declarations now in cases where it might have been used but is simply not available. Given, as we have stated previously, using ECMO, a heart in a DCD context has been restarted at 23 minutes (Ali et al., 2009) and the function was good, can we no longer declare death within 23 minutes because relatives might demand ECMO or change their mind about the appropriateness of resuscitation within this time?15 We contend that the answer is a resounding no. We do not believe that any reasonable doctor, or any reasonable system of rules and guidelines, would impose this requirement, and that is, of course, why questions such as these will sound to anyone in practice as rhetorical questions that invite the “reductio ad absurdum” conclusion. Notice, however, that, if this is so, the very same points apply to CPR. Before CPR, we had no option of resuscitating such patients, and so they were diagnosed dead. Within the era of CPR, we may still choose in many circumstances not to carry out CPR, in which case those patients are justifiably diagnosed dead at the same time as they would have been 150 years ago. If we can validly and accurately declare death in those cases where it is not appropriate to use ECMO resuscitation technology, then it must follow, on the same logic, that we can validly and accurately declare death in cases where conventional CPR is not appropriate. There is no reason to privilege CPR over other forms of resuscitation. Once we index death to irreversibility, then all forms of resuscitation must be on the table, not just conventional CPR. We tend to become fixated on CPR when thinking about reversibility, but there is no logical reason to privilege CPR over other forms of resuscitation, and even opponents of DCD would not index the time of death to times beyond which a patient could revive, using these other forms of resuscitation such as ECMO. But if that is so, the same point can also apply to conventional CPR itself. In all cases, DCD and non-DCD, we judge whether the patient’s condition is reversible by reversing it or by failing to reverse it, or by not even trying. It is this latter way of telling whether a person is dead that we believe critics of DCD overlook, yet it accounts for a significant percentage of practice. It is estimated that in some jurisdictions up to 80% of patients dying in hospital have a DNAR decision (Knipe and Hardman, 2013). Finally, irreversibility is relative to human capabilities, and so not purely biological. If tomorrow we could bring cryopreserved people back, A could be in the same bodily state today and tomorrow, yet dead today and alive tomorrow. If this is acceptable, then why not permanence? III. TAKING THE CRITERION OF IRREVERSIBILITY TO ITS LOGICAL EXTREME Death is an irreversible condition . . . As long as attempting resuscitation can restore circulation, the cessation of circulatory functioning is not irreversible. (Shah, Truog, and Miller, 2011, 720)16 It might be argued that it is unsafe to declare death at the time we currently do because we may not know all we need to know. But, to accept this is to change most death practices in modern hospitals. It is important to note what is actually implied for practice if biological irreversibility via human action should always be the criterion for declaring death. Logically, if we adopted this criterion of irreversibility we should do so in all the contexts in which death is currently declared, not just in the donation context.17 Using this criterion would make it necessary to attempt CPR and any other possible resuscitative measures, including ECMO, before declaring death. Alternatively, it would require a death watch of potentially several hours. The former option would represent the end of DNAR orders in hospitals and an attempt at resuscitation even in patients dying in palliative care hospices with terminal malignancy would be necessary before declaring death. Goldberger et al. (2012) found that the longer CPR was attempted, the higher the likelihood of return of spontaneous circulation. As technology and resuscitation advanced, this would require longer and longer attempts at resuscitation before the point of accepted irreversibility would be reached and death could be declared. In one remarkable case of survival, 385 minutes of resuscitation (over six hours), which included ECMO, saved a 30-year-old Japanese woman who had been found hypothermic and in cardiac arrest following overdose and overnight exposure in a forest.18 She had been in this state, before the attempt at resuscitation, for an unknown period. It seems unlikely she arrested only seconds before she was found and CPR commenced. On the irreversibility criterion, the fact that we now have ECMO technology means that we should not, strictly speaking, declare death if we have not used the best resuscitation technology available to us to check whether the cessation of cardiorespiratory function is irreversible.19 One could be irreversibly dead in one center but not in another with ECMO technology. But of course, the fact that we have this technology should not invalidate the one million hospital deaths declared by doctors every year in the United Kingdom and United States. We see no reason why the same point should not likewise apply to conventional CPR: if we can validly declare death when we do not use ECMO technology, we can validly declare death when we do not use CPR. It might be objected that these points concerning CPR and ECMO are irrelevant. It might be argued that, in controlled DCD, we want to know how much of a delay to starting resuscitation makes any first attempt at resuscitation subsequent to that delay doomed to failure; we do not want to know, if we start immediate resuscitation, how long we need to wait until we know that such resuscitative efforts are doomed to failure. So, we simply should distinguish between those patients on whom resuscitation is immediately started and who may take longer to die (if, e.g., cooling techniques are used on them to preserve their organs and their brain), and those for whom resuscitative efforts are not appropriate and therefore on whom no resuscitative efforts will be made. These patients, according to this objection, would reach the point of irreversibility much sooner than patients on whom resuscitative techniques of the kind we have mentioned are attempted, and so insisting on irreversibility does not have the consequences we are claiming that it does. In reply, it should be noted that there is no medical consensus about when this point is reached. There is extensive variability across patients (one pragmatic reason for favoring permanence where CPR is not appropriate). Furthermore, we must distinguish between whether it is worthwhile to restart the heart in someone who will be dead anyway on brain death criteria, and whether we could restart the heart even if we could, at best, only make the heart contract one or two times. Many attempts to start CPR, or to continue it, would not be made or would be stopped because, even if circulatory and respiratory function could be restored, the patient would have severe brain damage anyway. By stopping at the time we do, or not starting resuscitation, we would not know whether the heart might have been restarted at a later point—yet on the irreversibility by human action criterion, that is what we would need to know. Indeed, there is evidence that a heart can be restarted even after six hours with no prior CPR.20 As we shall see shortly, if this figure is accepted—or any figure between one hour and six hours—then many of our other practices after the declaration of death, and not merely organ donation, would have to cease if we adopted the irreversibility criterion. And some of our practices would have to cease, even if a figure of about an hour were accepted.21 The only alternative to attempting CPR in all diagnoses of death (in order to be sure of the point at which irreversibility is reached) would be a death watch. Here, owing to the length of time that has elapsed since the respiration and circulation has ceased, irreversibility is believed to have occurred and attempts at CPR at this point would always fail. But, in cases where no CPR is even started at any stage, what are we watching for if we do this? It seems that we are watching for two possibilities: autoresuscitation and that someone might still come along and attempt CPR. Autoresuscitation is widely regarded to have been ruled out after a number of minutes and in most DCD protocols this is why there is a death watch of between two and ten minutes. In spite of some doubts about autoresuscitation, evidence suggests it will not occur beyond ten minutes in uncontrolled DCD (where CPR has initially been given but is now thought to be no longer appropriate) and, if CPR has not been used (controlled DCD), at a much earlier point (Hornby, Hornby, and Shemie, 2010; see Joffe et al., 2011). When longer periods are in question, any reversal of the cardiac arrest would rely on the application of CPR or another resuscitative technology. Few opponents to diagnosing death in DCD are willing to offer a suggested time after which death can be safely diagnosed. Alan Shewmon, however, is an exception, and has claimed that “under normal circumstances (i.e., normal temperature), an educated guess is that twenty to thirty minutes probably suffice to surpass the point of no return” (1998, 142).22 This point, according to Shewmon, would satisfy a state of thermodynamically supracritical microstructural damage diffusely throughout the body. Unfortunately, the time he suggests is too short for the state he desires to have developed. From the work of Ali et al. (2009) in DCD-like cases, ECMO can easily restart the heart at 23 minutes and the heart can be of very good function. This suggests that it could be restarted, albeit with worse function, at a time much later than 23 minutes and certainly beyond Shewmon’s 30-minute threshold. The work by DeVita (2001) on possible death watch durations, where he reviewed historic experiments on restoring brain and heart activity after death, suggests that if irreversible brain activity is the state desired before death can be declared, 60 minutes is required, and if irreversible cardiac activity is the state desired, “several hours.”23 Assuming DeVita’s claims are plausible, are we to enter an era where either CPR must be attempted in all dying individuals regardless of their wishes, or where a death watch of many hours will be required, such that a doctor will have to say, “Mrs. Smith, I’m sorry Mr. Smith’s heart and respiration has ceased, I’ll be back in three hours to confirm his death. In the meantime we will put a warming blanket over his body to prevent him cooling too quickly and please, let either me or one of the nurses know if you see him come back to life”? The radicalism of insisting on irreversibility as the criterion for death has not been sufficiently recognized. One of the authors (DG) in his tertiary university hospital evaluated time taken by junior doctors for certification of expected and unexpected deaths, after hours. Over a six-month period 17% of patients were declared deceased within 30 minutes, 37% within 60 minutes and 83% within 180 minutes. It is estimated there are 360,000 deaths in UK hospitals each year. Using DeVita’s deathwatch criteria in order to satisfy a definition of irreversibility as “impossible to reverse,” these results would suggest that over 133,000 patients (37%) each year would have to have the way their deaths were diagnosed altered to satisfy a sixty-minute standard and 300,000 (83% of all UK hospital deaths) to satisfy a three-hour standard (Gardiner and Shaw, 2014). We believe that the logic of the biological irreversibility criterion should commit its strict proponents to recommending these changes.24 IV. MODERN DEATH DETERMINATIONS An alternative proposal, one that modern doctors use every day to diagnose death, was made in 1846 (Bouchut, 1849).25 It is based on a criterion of permanence and relies on human physiology, which is remarkably similar between individuals and changes much more slowly over time than technology. In the mid-19th century, in revulsion against the German waiting mortuaries and in an effort to calm public concern over premature burial, the Academy of Sciences in Paris offered a prize to the physician who could successfully make the diagnosis of death safe, prompt, and easy.26 Eugène Bouchut won this prize in 1846. He advocated the use of an 1819 device, the stethoscope, where after two minutes of absent heart beat on auscultation, he claimed that death could be safely diagnosed. In the face of opposition, he extended this period to five minutes.27 This French discovery was only slowly adopted worldwide. Today, in nearly every hospital in the world, a doctor will listen to the heart with a stethoscope for a variable length of time, usually between one and five minutes, before declaring death. The length of time is determined mostly by the individual doctor’s own judgment rather than by any official standard, as there is little published guidance. In the United Kingdom, it was only in 2008 that official guidance was issued for the diagnosis of death after cardiorespiratory arrest and the 1846 five-minute standard adopted. Four years later in 2012, the UK National Patient Safety Agency (NPSA) had to issue an alert regarding five patients prematurely declared deceased after cardiorespiratory arrest and failed CPR. The recommendation from the NPSA was not that the UK observation time of five minutes to declare death after cardiorespiratory arrest was too short; it was that the doctors had not waited even this length of time. In 1846, Bouchut, using empirical and animal evidence, showed that at five minutes death is permanent. Five minutes is safe, even perhaps two minutes, and we see nothing in the last 150 years to tell us we need to sacrifice the timeliness his standard brings for any supposed requirement for increased safety. To repeat, the truth is that we do not need to know cessation is irreversible in the vast majority of cases. We only need to know that it is permanent. And it is upon this criterion that doctors routinely diagnose and confirm death in modern hospitals. To reject permanence is to reject modern death determination and return society to an era when only putrefaction was considered a safe and irrefutable sign of death—though even putrefaction was unable to assuage the public fear of premature burial. V. IS DCD DIFFERENT TO NON-DCD CONTEXTS? Readers may claim that the points we have made concerning non-DCD contexts—for example, patients outside the DCD context who have DNAR orders and others for whom it would not be appropriate to attempt CPR—only show that nothing of any ethical or legal significance turns on declaring death in these contexts at the moment of asystole. Ethically and legally, they may claim, it does not matter if death is declared in non-DCD contexts on the basis of permanence, because the dead donor rule does not apply outside the DCD context. They may also point out that an unofficial death watch usually occurs after death is declared, ensuring that the criteria of irreversibility are fulfilled. In a debate with Bernat, Truog and Miller (2010, 17) make the following claim: In today’s hospitals, we commonly declare death at the moment of asystole, confident that nothing consequential will happen to the patient over the next several minutes and that the routine flow of hospital activity will provide an adequate death watch to ensure that the criteria for irreversibility are satisfied. Thus, Truog and Miller believe that, although these non-DCD patients are not known to be dead when death is declared at the moment of asystole, this does not matter because they will certainly become dead over the next several minutes, and the routine flow of hospital activity will provide an adequate death watch. On this view, there is no need to wait for an extended period of time after asystole before declaring death in these contexts. Such a position would not have the absurd implication that CPR (or other technology like ECMO) must be attempted and fail before declaring death. By contrast, in the DCD context there is a specific, established ethical norm, the dead donor rule, that requires that donors must be known to be dead before vital organs can be procured. Because we do not know that DCD patients are actually dead when death is declared, so the objection continues, this rule is being routinely violated. This distinction between DCD and non-DCD contexts is in our view problematic for several reasons. First, Miller and Truog have objected to the claim that we can know a patient is dead even over the few minutes following asystole. On their view, even waiting five minutes after asystole is not sufficient to know that a patient is dead—this is the very objection they make concerning the use of DCD donors whose organs are retrieved five minutes following asystole.28 Yet, their claim here that, outside the DCD context, we can declare death at the moment of asystole confident that “nothing consequential will happen to the patient over the next several minutes” seems to be making a quite different point, namely, that we can declare death at the moment of asystole outside the DCD context because, even if the patient is not known to be dead at the moment of asystole, we know that the patient is dead after the next several minutes—after which period we can tell whether anything consequential has happened or not (Truog and Miller, 2010, 17). If this is their claim, however, then they appear to be endorsing the view that it suffices to rule out autoresuscitation in such cases, that is, that the patient would be known to be dead after “the next several minutes” have passed, even if they are not known to be dead at the moment of asystole. In fact, their criticisms of the practice in the DCD context, where five minutes must pass after asystole before organ retrieval, should commit them to the view that the patient is not known to be dead even after “the next several minutes,” but that this does not matter because nothing of any ethical significance arises from the practice of declaring death. Miller and Truog must actually be relying on the routine flow of hospital activity, following the period of several minutes, to ensure that the patient is in fact known to be dead in these non-DCD cases. But, this creates a problem of its own: the time provided by routine hospital activity after the period of several minutes would only be necessary to ensure that someone does not come along and try to resuscitate the patient with CPR,29 and we do not know with any real precision when it is no longer possible to revive a person using CPR. The problem is that Miller and Truog do not state at what point a patient is known to be dead. We have seen that widely diverging times have been proposed from 23 minutes (with good function) to “several hours.” Resuscitation researchers such as Parnia believe this time can be extended much further. Yet for some post mortem practices and procedures, for example, warm autopsies where tissues are removed within hours of death,30 or cultural requirements for burials within 24 hours that currently have no statutory or medical imposed minimum wait time,31 is it possible these too are routinely being carried out before biologic irreversibility (by reference to the actual or possible failure of human resuscitative efforts) is established? If so, then it may not be possible for Miller and Truog to say that death declaration practices outside the DCD context do not give rise to the same ethical problems as death declaration practices within the DCD context. Indeed, the claim that the problem arises only in the organ donation context by reason of the existence of the dead donor rule is misleading. The dead donor rule is no more than an express formulation, in the organ donation context, of what is already a general rule that also applies to other contexts. For instance, in forensic cases, autopsies have been performed within the first hour after death is declared.32 Autopsies are occasionally carried out when the patient is, as Miller and Truog would put it, still “warm to the touch.” If we sometimes carry out autopsies soon after the heart has stopped, it goes without saying that we should not perform such autopsies until after the person has died. Although this norm is not expressly formulated in debates, this is only because we have not had debates in other contexts, such as the autopsy context, akin to the debates that we have had in the organ donation context. If we do not have such an expressly formulated rule, this is only because it goes without saying, not because there is a laxer attitude about death and the things we can do to dead people outside the donation context than the attitudes and permissible things we can do within the donation context. Nonetheless, we could call this obvious rule the “dead body autopsy rule.” We also take people to the mortuary within hours of the heart stopping. This sometimes happens even within an hour. If irreversibility rather than permanence were our criterion for declaring death, we would have to stop these practices because they would show that we could not know that these patients were biologically dead when the autopsies are performed or the body bags are used. So, it would not be correct to reply that, since this is a nondonation context, there is no ethical impediment to declaring death when we do. Adopting the irreversibility criterion would involve more than abandoning DCD. We would need to abandon early autopsies and the practice of sending dead patients to the morgue within an hour of declaring death.33 And this may extend to practices that take place even after “several hours,” if we accept DeVita’s view outlined above. Even if we waive these problems and grant Miller and Truog’s point for the sake of argument, we still have to explain why it is that non-DCD patients can be declared dead when, strictly speaking, they are not known to be dead. It is no answer to our contention to claim that this does not matter and is not necessary in the non-DCD context because the dead donor rule does not apply in that context. Nor is it an answer to say that subsequent events in routine hospital practice will ensure that the criterion of irreversibility will be fulfilled. For surely, we should only declare death when we reasonably believe that it has actually occurred, and not when we think it should be declared on other grounds, safe in the putative assurance that an ad hoc death watch, determined by routine hospital practice, will mean that the patient will die at some indeterminate point after death has been declared. It seems absurd to distinguish between declaring death insincerely and sincerely stating that death has occurred; the whole point of declaring death is to sincerely state that death has occurred. We want to be able to declare death when we believe it has occurred, not declare it when it is convenient, on the basis that, in truth, we all simply do not know when it really has occurred.34 One claim by Truog and Miller is that DCD needs to have more stringent standards than declarations of death in other contexts, for the consequences of our assessments being wrong in the donation context are greater (Truog and Miller, 2010, 16–17). In illustration of this point, they cite the example of a physician being about to amputate a limb for what is believed to be a local malignancy (Truog and Miller, 2010, 17). They claim that, in such a case, the physician will use more precise criteria to rule out metastatic disease than if amputation is not a feasible therapeutic option (Truog and Miller, 2010, 17). They draw from this the conclusion that the criteria physicians use to establish the presence or absence of a clinical condition are context dependent (Truog and Miller, 2010, 17), and so appealing to the case of a 92-year-old with a DNAR, as we do, would not on their view invalidate the claim that at the moment she is declared dead, she is not known to be dead. Our criteria for declaring her dead do not need to be so precise here as they need to be in the case of DCD. By contrast, the fact that the few minutes following asystole will require lethal actions such as surgical incision and the removal of vital organs means that the methods of declaring death must be more precise (Truog and Miller, 2010, 17). In reply to this point, note again first that, on Truog and Miller’s logic, the same point would apply to warm autopsies, given that incisions are certainly going to be made for the purpose of carrying out the warm autopsy—yet warm autopsies are a non-DCD case about which they have remained silent. This undermines the distinction they draw here between DCD and non-DCD contexts. Second, we believe this putative difference between DCD and non-DCD contexts is exaggerated. In fact, the reintroduction of DCD programs has resulted in improved safety in the medical declarations of death in all contexts. Before the reintroduction of DCD, death was diagnosed in most UK hospitals35 by the most junior doctor in the hospital, with no national guidelines or accepted practice on how to do it (and well known huge variability in practice), with no mention in the medical curricula or in medical textbooks. Most doctors will have difficulty feeling a pulse less than 60 mmHg (i.e., a weak pulse may not be felt),36 heart sounds are difficult to hear in noisy environments, and detection of shallow breathing has been known to be problematic for hundreds of years. It was in this context that death determination was once carried out, and it is not surprising that there are cases of misdiagnosis.37 When the reintroduction of DCD programs was proposed, the organ donation community agreed with Truog and Miller that the consequences of a wrong diagnosis require greater stringency and consistency than doctors had up to that time been demonstrating. DCD programs now provide that stringency and consistency. First, unlike in failed CPR, there is no evidence of autoresuscitation beyond 65 seconds following the withdrawal of life sustaining treatment,38 such that a two to ten minute standard is actually conservative (DeVita 2001; Hornby, Hornby, and Shemie, 2010).39 Second, and in contrast to most other death determinations in a hospital, in DCD cases the diagnosis of death is carried out by senior doctors, following national guidelines based on the best evidence, with an explicit demand for use of critical care monitoring—ECG/EKG to observe electrical activity of heart, arterial lines to watch beat to beat blood pressure, and an observation time that insists a doctor stays and observes the patient for the duration (probably the most important part). Through these changes, DCD is driving all hospital deaths to be diagnosed more safely by introducing standardization in death determinations and featuring more in medical education. It is worth noting, in this context, one of the earliest formulations of what will become known as the “dead donor rule”40: When a vital, single organ is to be transplanted, the death of the donor shall have been determined by at least one physician other than the recipient’s physician. Death shall be determined by the clinical judgment of the physician. In making this determination, the ethical physician will use all available, currently accepted scientific tests. (Judicial Council of the American Medical Association, 1968) The intention, in other words, was to protect donors from those with a vested interest in gaining organs and from those who might not fully apply accepted standards. The passage seeks to protect the donor from a relaxing of the usual standard, rather than to impose a higher standard, given the consequences of the declaration. This is reinforced by the UDDA, an Act drafted to give clarity for the declaration of death primarily to allow for deceased donation, where the requirement is that, “A determination of death must be made in accordance with accepted medical standards.”41 In neither the Judicial Council’s ethical advice nor the UDDA did the consequences of organ donation persuade their drafters that a standard higher than usual was required to determine death safely. As we have demonstrated, the usual and accepted standard is permanence. VI. IS IRREVERSIBILITY LIKE INSOLUBILITY? In criticism of the permanence criterion, both Marquis (2010, 28–9) and Truog and Miller (2010, 17) point out that irreversibility is an exclusively biological phenomenon. Note that this point is aimed at those who believe that one way of proving irreversibility is to prove permanence. On this view, permanence is equivalent to “normative irreversibility,” that is, to whether or not it is appropriate even to try and reverse circulatory and respiratory function (a biological element remains on the permanence criterion, however, in that autoresuscitation must no longer be physiologically possible). Against this, Truog and Miller (2010, 17) argue that whether or not a condition is reversible does not “depend on the intentions and actions of those surrounding the patient at the time of death.” In response to the proposal for a normative notion of irreversibility, Marquis (2010, 27) points out that “irreversibility” is what he calls a dispositional property of the patient, in just the same way that being soluble or breakable are dispositional properties of objects: those objects have the capacity to dissolve in water, or to break. These properties seem to stand independently of whether in fact they will actually be dissolved or broken. Marquis (2010, 27) claims that the normative irreversibility (permanence) proposal can be put in the following way: when moral or legal norms apply, terms that are ordinarily dispositional acquire an ethical or normative meaning. He then dismisses this claim with an analogy. It would be wrong for me to dissolve your gold ring in aqua regia (Marquis, 2010, 27). A norm therefore applies in this case. However, no one would say that “insoluble” has an ethical meaning and that the ring is insoluble in aqua regia (Marquis, 2010, 27). Similarly, the fact that it might not be permissible to attempt the reversal of the loss of respiratory and circulatory function does not show that this condition is irreversible (Marquis, 2010, 28). Miller and Truog (2012, Ch. 5) concur. Basing the idea of irreversibility on ethical or legal restrictions “does not conform to our ordinary understanding of irreversibility” (Shah and Miller, 2010, 555). It should be noted that this argument is contestable. Terms like “soluble” and “insoluble” never bear a normative meaning. “Irreversible,” by contrast, can do so. The moot point is which sense can be legitimately applied to DCD cases, and it does not suffice to answer this question to appeal to cases that never bear a normative meaning, for this only begs the question against permanence proponents who claim that the appropriate sense is the normative one. Consider “inoperable,” when said by a doctor of a patient’s condition. Here, the doctor can clearly have in mind the pros and cons of the operation and decide that the cons outweigh the pros, and therefore consider it inappropriate to operate. This can, without any absurdity of the kind Marquis mentions with “insoluble,” quite naturally be reported by saying that it is not possible to operate on the patient, and that the patient’s condition is inoperable, meaning at least partly thereby that it is not ethically appropriate to operate, given the patient’s health and condition. “Inoperable” therefore differs from the dispositional terms that Marquis uses to criticize DCD protocols. Why can’t the appropriate sense of “irreversible” be like “inoperable”? The term “reversible,” particularly as that term is applied to patients, unlike the terms “soluble” or “breakable,” carries an intrinsic reference to possible actions that could be carried out by appropriate experts acting on intentions. For example, whereas a vase is breakable in the sense that even the wind might knock it over and break it, an engine is not reparable unless there is somebody with the appropriate skills and abilities willing to try and mend it. “Being repaired” is not the kind of thing that can happen without the appropriate application of skill and diligence from a willing subject. “Reparable” is what Jennifer McKitrick calls “a success term” (McKitrick, 2003, 163).42 This does not mean that we cannot distinguish between whether something is reparable, and whether there is anyone willing to try. But, it does mean that we can say that, in some circumstances, how we describe the object has built into it a reference to what someone is capable of doing and willing to do. “Capable of being repaired” here carries a reference to what we are willing to do—at least in the sense that this ability and willingness are background conditions within which we use a term. For example, when we speak of a car being irreparable, the background conditions include standard expectations concerning the expense to which it is reasonable for a person to go in attempting to repair the vehicle, and these partly determine the meaning of “irreparable” in applying that term to a motor vehicle. With this last remark, we are not implying that someone can be declared dead if it is too expensive to treat him. Expense is a background condition for the application of “irreparable” when used of a car, but it is clearly not a background condition of the application of “dead” when applied to patients. The point of the analogy is to show that we do in some cases predicate features of objects by reference in part to what we are willing or able to do. In our view, the fact that we use predicates in this way rebuts the criticisms of Marquis and Miller and Truog, who analyze “reversible” and “irreversible” exclusively in terms of dispositional properties. In this respect, “reversible” is more like “reparable” than “soluble.” Similar points apply to the concept of something being retrievable. For something to be retrievable, there must be someone capable of retrieving it; “irretrievable” in this sense does not merely refer to an intrinsic property of the object concerned, but has an intrinsic reference to actions of persons acting on intentions. Whether a situation is retrievable, for example, might depend on whether the person who might have an opportunity to retrieve it is willing to do so. Or it may depend on whether, indeed, they will have an opportunity to do so. We cannot rule out the use of “irretrievable” to mean that there is no opportunity to retrieve a situation, because this is a standard meaning of the term. It makes perfect sense to declare a situation irretrievable and mean by that only that the opportunity to retrieve it, but not the capacity to do so, is not present or not available. We would suggest that “reversible” is more akin to retrievable than soluble. Although CPR need not be performed by doctors or even medically qualified experts, it does require training. Not everyone can perform CPR.43 There is an intrinsic reference to persons acting on intentions in the notion.44 In addition, for the reasons we have already presented, there can be a built-in reference to whether attempts at reversal are even appropriate. Perhaps this aspect of the dispute comes down simply to two different but equally plausible ways of looking at things. Commenting on our analogy with irretrievable, Miller, Truog, and Marquis might say to us: if the only reason a situation is irretrievable is that the opportunity to retrieve it is not available, then you should not call it “irretrievable.” Rather than stating that it is not possible to retrieve it, you should say instead that it is not going to be retrieved in these circumstances. Whereas we are claiming that we simply often mean, by saying that a situation is irretrievable, that the opportunity to retrieve it is not present—and if the opportunity is not present, then it is not possible to retrieve it. We see nothing linguistically or logically awry with this. For the same reasons, these remarks apply to the concept of “reversible.” Finally, it is worth noting that “irreversible” can be used to refer simply to the time at which autoresuscitation is no longer possible, and therefore to the reflexive use of the correlative verb (“autoresuscitate,” “auto-reverse”). When a person autoresuscitates, the person does not do something to himself (he does not attempt CPR on himself); rather, something happens to him. By contrast, when doctors reverse the cessation of circulatory–respiratory function, they are doing something to the patient, and so “reverse” refers to the successful outcome of human actions. Those who rely on permanence believe that the point of irreversibility is reached (a) once the possibility of autoresuscitation has passed and (b) where it is inappropriate to try to reverse the cessation of circulatory–respiratory functioning. We see nothing unreasonable in such a position. It simply clarifies what is otherwise an ambiguity in “reversible”—between the reflexive, nonaction involving use of the term, and its transitive use to refer to the human action of resuscitating someone. If all these remarks still do not convince, consider the following variation of our earlier example. Suppose in 2019, we developed technology that allowed us to restart circulation in some people after two days. Imagine this technology worked best on people under the age of 50 and even then had a moderate success rate of only 30%. On Marquis’s view, we could no longer accurately declare our 92-year-old frail lady to be dead until after the 2 days, because there is a chance, however remote, that she could be revived if the technology were used on her, even though it works best on people under 50. This consequence of his view makes it much less plausible, because it is surely rational here to consider adopting different rules, depending on the category of patient (the under fifty-year-old, on whom it is appropriate to use the technology, and those over 50 on whom it is not). Yet, we see no difference in principle between this imaginary case, and current practice with respect to DCD and non-DCD patients. VII. REVERSIBLE AND CURABLE In response to the claim that the cessation of cardiorespiratory function can be regarded as permanent, Marquis (2010, 26) retorts that while irreversible entails permanence, permanence does not entail irreversibility. A condition that can be cured might not in fact be cured, because the bearer of the condition might not live in a country where it could be cured. But, nobody would say that his condition was irreversible or incurable (Marquis, 2010, 26). At most, it would be said that his condition is permanent (Marquis, 2010, 26). But in such a case, Marquis contends, it is patent that adopting “permanence” is inadequate as a criterion for determining death. Just as with the woman who lives in the wrong country, her condition is clearly reversible, notwithstanding that her condition is permanent, so we should recognize that the cessation of circulatory and respiratory function in DCD patients is reversible, even if it is permanent (Marquis, 2010, 26).45 In reply to Marquis, we agree that permanence does not entail irreversibility, if “irreversibility” means the impossibility of any successful outcomes of specific human actions. But, we believe that it does entail irreversibility if that term refers instead to the impossibility of “auto-reversal,” that is, to autoresuscitation, and the possibility of autoresuscitation has passed. As we have argued above, permanence applies in a context where a necessary condition for the possibility of reversal (in the sense of an outcome produced by human acts of attempting resuscitation) will not occur. These are the cases where we know that the only way that function could be restored is where CPR is attempted, but where we also know that, as with the frail old lady with a DNAR order, it is not appropriate even to try. The very question of whether it is reversible here does not even apply if it is not appropriate to try and reverse it. As we have said, we must remember that our only interest with irreversibility is with whether, in a given case, cardiorespiratory function is in fact going to restart. Once we have ruled that possibility out—in this case and in these circumstances—then we know all we need to know in order to make a diagnosis of death. Marquis’s analogy here is not apposite, because it does not compare what we mean when we say in a DCD case that cessation is irreversible, and what we mean when we say that the woman’s condition is incurable. There is of course a legitimate sense in which we can say that the woman’s condition is not curable if she does not live in a country with the technology or medicine to cure it, but we agree that it would be misleading to state that her condition is incurable. But that is because, regardless of her circumstances, it does remain appropriate to try and cure her if it should become possible for her to travel to the country she needs to get to, or should it become possible to import the needed medicine. A normative limit of the kind we have stressed—where it is not appropriate even to try and reverse a condition—and a mere factual limit should not be confused with each other. It seems to us that, in Marquis’s example, we are dealing only with a factual limit and not a normative one where it would not be appropriate even to try. For this reason, we believe that if we must keep using the word “irreversible”—and in the United States the UDDA does use that term—it is legitimate to read “irreversible” as including “nonreversible” and therefore as having a built-in reference in the circumstances to what it is normatively appropriate to do and therefore what is likely to happen. Another way of expressing this point is to say that a precondition for the applicability of the question of whether a condition is reversible in a given case is whether it is appropriate even to consider trying to find out. If that precondition is not met, then the question of reversibility in the circumstances cannot arise—hence, “nonreversible” is the appropriate term.46 VIII. DEFEASIBILITY AND THE REASONABLENESS OF DIAGNOSIS As with any diagnosis, a doctor diagnosing death can get it wrong. There is, according to Truog and Miller, a particularly interesting way in which a doctor can get the diagnosis wrong in cases where it is not ethically appropriate to try reversing the loss of circulatory and respiratory function. This is a case where a patient’s family might agree to donation, but subsequently change their mind (Truog and Miller, 2010, 17). In a variant of the case of A and B described in section II above, consider the case where A is declared dead after five minutes of asystole and is being wheeled down to the operating theatre for donation purposes, and the family have a change of heart and now want everything possible done to revive the patient. Was the patient dead when death was declared? Suppose that resuscitation is attempted and the patient revives. Has the patient been raised from the dead (Truog and Miller, 2010, 17)? There is a difficulty with this objection. On the authors’ own view, it should always and only have been decided that the patient should become a DCD candidate after a decision has been reached independently of donation that CPR is not appropriate. Thus, even in jurisdictions where consent of a surrogate governs the lawfulness of a decision to withdraw treatment, it should not at this stage be possible for a family to override the decision or to reasonably change their mind. This is all the more so in those jurisdictions where the doctors make the judgment on the basis of the patient’s best interests, and so where the family’s changing its mind could be irrelevant. This is important if, as we have argued, we are speaking of the reasonableness of the diagnosis and we are therefore deciding whether autoresuscitation only has to be ruled out, the times applicable if CPR were an option being inapplicable in this case. At the stage at which it has already been decided, independently of organ donation, that CPR should not be attempted, it is from that point on reasonable to diagnose that the condition will not be reversed, and hence to declare death once the requisite “safe” amount of time, which excludes the possibility of autoresuscitation, has passed. But, let us waive this problem for the sake of argument. If the family does change its mind and the patient revives, then has the patient been raised from the dead on our position? No. The change of mind could be regarded as one of the things we rule out as part of our diagnosis. If the doctor should turn out to be mistaken—the family does change their mind and the patient revives—then they were wrong. That should no more place a question mark on the rationality of diagnosing death in this way than it should place a question mark over any other kind of diagnosis doctors make. Diagnoses are defeasible. It is possible to be wrong. But, the possibility of being wrong—defeasibility—is not defeat. IX. CONCLUSION We do not believe that it is appropriate to have different practices of declaring death in the DCD context from the practices engaged in any other context, nor do we see that the dead donor rule requires any additional burden of proof. Our challenge to Marquis, Miller and Truog, and others sympathetic to their position is to explain how they think death should be declared both within and without that context, given the problems for relying on irreversibility (by reference to resuscitative efforts) that we have discussed in this paper. We have shown that the criterion for declaring death across all contexts is permanence. If irreversibility, as Marquis, Miller, and Truog understand that term, really were the criterion of declaring death, it would only be possible to know if the condition were reversible by attempting resuscitation and failing, or waiting in a death watch for several hours. This is not a reasonable practice of declaring death. We see no reason why DCD should be any different in that regard, because the practice of declaring death in that context is very safe. Although Miller and Truog might claim that there is no equivalent to the dead donor rule outside the DCD context, we have seen that this is not so. We have seen that their position might have implications for the practice of, for example, early autopsies. Here, they could not fall back on any claim that nothing is going to be done to the autopsy patient before they reach the point of being a stone-cold corpse, and it would be quite a significant development in their position if they were to claim that such early autopsies, too, could occur before the point of irreversibility being reached. We believe that the status quo is not, as Miller and Truog have implied, the radical position, in the sense of constituting a significant departure from our historical and current practices of declaring death in the non-DCD context. On the contrary, if we follow the logic of Miller and Truog’s arguments to their conclusion, it is they, we believe, who are offering a radical proposal: the logic of their arguments may require us, for reasons we have presented, to return to the practices for declaring death that were in operation before the development of modern medicine. It is neither necessary nor desirable to take that path. NOTES 1. Donation after Circulatory Death (DCD), or nonheart beating organ donation, was the original type of deceased organ donation before the acceptance of neurological criteria for human death that allowed donation after brain death or heart-beating organ donation. In DCD, warm ischemia begins as the circulation fails; organ viability for transplantation likewise rapidly falls (within 20 min for the liver), and this form of donation was effectively abandoned in most, but not all countries, for 25 years. Over the last two decades, DCD has seen a return in frequency and currently accounts for 40% of all UK deceased organ donation and up to 10% of worldwide deceased organ donation. To minimize warm ischemia and allow successful DCD, there must be either a delay to treatment withdrawal until a surgical team is in readiness to carry out the rapid recovery of the organs after the declaration of death (controlled DCD) or procedures are carried out to maintain organ viability after the declaration of death (uncontrolled DCD). Warm ischemia is also minimized if death can be declared within a short time of the circulation ceasing (five minutes is the most common standard for declaring death in DCD). It is this standard for declaring death that Miller and Truog, and others, criticize and what we defend in this article. 2. This is a surprising concession because in the original article to which Truog and Miller respond, Bernat claimed that these patients are dead (Bernat, 2010a, 13). Bernat explains this seeming inconsistency by claiming that there are two competing approaches to understanding death: the donor after the circulatory determination of death is dead according to the standard accepted by medical practice that requires permanent cessation of circulation but is not dead according to the biological standard that requires irreversible cessation of circulation (see Bernat, 2013). We shall take a different view in this article. We shall claim that the patient may actually be dead, as Miller and Truog concede, according to the biological standard and that this is one reason why the criterion of death adopted in medical practice is the permanent cessation of cardiorespiratory function. 3. Marquis (2010) and Truog and Miller (2010) concede that the possibility of autoresuscitation can be excluded from the debate. However, in their more recent book, Miller and Truog (2012) effectively renounce this claim. We remain unconvinced by their U-turn but cannot argue that point in this article. Similarly, Joffe et al. (2011) have raised questions concerning the widely accepted view that autoresuscitation after this period is not possible. If these authors are right, we concur that a longer period, beyond the typical two to five minutes, would be needed. But, we do not enter into that controversy in this article. 4. And, autoresuscitation was not possible. 5. This was achieved by use of extracorporeal membrane oxygenation (ECMO) resuscitation technology in ethics approved research into the feasibility of using DCD hearts for transplantation. 6. This point is developed further later in the article. It might be objected that it was not the intention of those who proposed the wording that “irreversible” should be understood as meaning permanence. This may be so, but, as any lawyer will be quick to point out, what matters are the intentions of Parliament as manifested in the words of the statute, and not the intentions of those who advised on what the wording should be. By adding the words “the determination of death must be in accordance with accepted medical standards,” Parliament has effectively opened the way for “irreversible” to be construed as having the meaning given to that term by modern medical practice, rather than as having the meaning given to the term by the intentions of those who first suggested it. 7. It might be objected that, while we do not know the precise point at which it is reached, we at least know roughly when it is so. It might be argued that we can know the point is reached, with patients on whom CPR is not attempted, at about an hour after death. It is true that nobody would attempt to bring such a patient back after an hour, but this is because the patient would either be brain dead or left in a vegetative state. It does not follow, however, that we know that the heart could not still be made to contract at least once or twice much further down the track than one hour. While this might seem pedantic, it must be recalled that it is our opponents here who are insisting on the irreversible cessation of circulatory–respiratory function, and so the possibility of the heart at least contracting once or twice means that the patient would still not be dead on their logic. As DeVita (2001, 62–5) points out, “If the potential for reversibility of arrest is the sole criteria [sic], then death should not be certified for several hours” and “a much longer duration of arrest must occur before determining death in a controlled setting because restoration of spontaneous circulation is possible hours after cessation of circulation.” 8. As noted above, we leave aside the separate controversy about whether we really know enough to rule out autoresuscitation between two and five minutes in controlled DCD. We believe that autoresuscitation would have to be ruled out and that if new studies show that autoresuscitation can indeed occur after five minutes in controlled cases, we would need to wait for a longer period than five minutes. 9. It is worth noting here that it is sometimes lay parlance to describe someone who suffers a cardiac arrest but who is later revived as having died and then been brought back to life. For example, “I died three times on my way to hospital.” On that view, both A and B would be dead, but B would be brought back to life on successful CPR. In adopting this way of speaking, the layperson departs from the accepted medical use of the term “death”—barring some exceptions (Parnia, 2013), and it is simply a misguided vernacular way of describing the simple fact that the person never died to begin with. But, there is an important lesson to be derived from these differing uses. We could, in principle, define our words differently from the way we currently do. No definition of a word is absolutely necessary—all words, including the word “death,” are given their meanings by human beings. No word has its meaning dictated to us by the world, although the world does, of course, have a significant say. As Hart (1958, 607) puts it: “The facts and phenomena to which we fit our words and apply our rules are as it were dumb . . . Fact situations do not await us neatly labelled, creased, and folded.” We suggest, in the following paragraphs and in more detail later in the paper, that irreversibility was made a necessary condition for the correct application of “dead” to someone on the basis that doctors should not stop doing all they can for a patient until the patient is well and truly beyond the reach of anything doctors can do. But, we need not have done so. We could instead have allowed that death would have occurred in some circumstances, even if a person could later be revived. This is shown by the fact that even laypersons accept that we can apply the word death without fulfilling the requirement of irreversibility as understood by Miller and Truog. While adopting such a rule would also rule out our permanence criterion, that problem could be overcome by modifying the layperson definition to mean that the heart has permanently stopped. Our point here is this: if even on some uses of the word death, a person can be said to have died when his heart only temporarily stopped, it is all the more reasonable to claim that a person has died when his heart has permanently stopped, and it is only this latter claim that we wish to endorse. This debate could be partly semantic, with Miller and Truog recommending that we cleave to a definition of death in which biological irreversibility of, rather than permanent cessation of, cardiorespiratory function be the defining criterion for death. We say “partly” because, of course, which definition we choose will have different consequences—we will argue below that there are some unacknowledged consequences of the Truog and Miller recommendation. 10. For a much more detailed argument on this point, see McGee and Gardiner (2017a). 11. We thus reject Miller and Truog’s (2012, 70–1) proposed definition of death, “. . . as the moment at which the integrated functions of the organism as a whole irreversibly cease, as determined by when the forces tending to increase entropy irreversibly overcome those that are opposing it . . . irreversible cessation of [sustained circulation and respiration] is therefore a sufficient criterion for declaring death.” We would envisage that only the commencement of cellular disintegration and the onset of putrefaction would signal Miller and Truog’s point, but irreversible cessation of the circulation and respiration will have occurred before that point regardless of whether we are declaring death with donation in mind or not. 12. The argument that “irreversibility” as understood by the critics of death declaration in DCD is a normative requirement is developed much more extensively in McGee and Gardiner (2017a). 13. The criterion of permanence is based on intention (will the technology be used) and human physiology (the chances of autoresuscitation). 14. Parnia is a doctor and resuscitation researcher who in his bookThe Lazarus Effect (2013) has strongly advocated the use of more aggressive resuscitation technologies such as hypothermia and ECMO by highlighting the many cases where such resuscitation techniques have saved the life of a patient. 15. We discuss the implications for the declaration of death if relatives “change their mind” below. In section V, we also discuss the objection that the absence of an equivalent to the dead donor rule in the nondonation context means we need to distinguish DCD and non-DCD cases. 16. See also Miller and Truog (2012, 69): “We endorse the biological definition of death as the irreversible cessation of the functioning of the organism as a whole.” 17. We accept that this is not a claim that Truog and Miller expressly make, but we believe it is important to highlight the logical consequences of insisting on irreversibility and the radical changes in death behaviors that might arise if the criterion of irreversibility was simply accepted and adopted into clinical practice. We discuss the claim that irreversibility need only be insisted upon in the donation context below. 18. See Hagiwari, Yamada, and Furukawa (2011, 790–1): survival after 385 minutes of cardiopulmonary resuscitation with extracorporeal membrane oxygenation and rewarming with hemodialysis for hypothermic cardiac arrest. 19. Again, we discuss construals of the irreversibility criterion that might avoid this consequence below. 20. DeVita (2001) cites the early work of Kountz (1936). Perfusing hearts removed from 127 dead bodies, via the coronary arteries and great vessels, Kountz claimed that in two of ten cases, spontaneous contraction was initiated six hours after death. Given that highly selected hearts today are restarted in recipients of transplants many hours after removal from donors (though cooling of course assists in making these hearts viable), Kountz’s claim seems entirely credible. 21. Miller and Truog would, we believe, reject this contention that some of our practices would have to cease. We discuss this issue below. 22. Shewmon (1998, 142) is right to identify the importance of temperature, as hypothermia will slow the rate of decay in the body. Hypothermia explains why resuscitation can sometimes be successful in patients who have been drowned or in cardiac arrest for many hours. 23. See footnote 20. The resuscitation researcher Parnia goes even further and has claimed, when publicizing his book Erasing Death, “It is possible that in 20 years, we may be able to restore people to life 12 hours or maybe even 24 hours after they have died” (Spiegel Online International, 2013). 24. Miller and Truog would deny this, claiming that there are reasons for distinguishing other cases from DCD cases. We anticipate and deal with this possible reply below. 25. This is the case even if the doctors in question do not fully understand the history for their practice or the justification. 26. This balance between safety and timeliness is fundamental to doctors’ diagnostic criterion for death and the societal reason doctors are given the duty of declaring death. 27. There is an irony that 150 years after Bouchut there is significant debate in DCD practice between two and five minutes. 28. We leave aside the controversial practice that was reported in 2008 in the New England Journal of Medicine where a child’s heart was retrieved 75 seconds after asystole (Boucek et al., 2008). 29. Yet, as we have argued, it is difficult to see why we need to wait that extra period of time in cases where CPR is not itself applicable. 30. Warm autopsies allow the pathologist to remove tissue for ongoing examination (often for research purposes) before decomposition and hypothermia cause further damage. 31. This becomes important because the burials are in reality only going to occur between certain hours, say, 0800–1800. Assuming these hours, if such a patient dies at 0600 then he or she needs to be buried by 1800 (12 hours), because if we wait for burial the next day the deceased will miss the 24 hour requirement. 32. In the case of R v Malcherek; R v Steel [1981] 2 All ER 422, Lord Lane made the incidental remark that the postmortem was carried out 50 minutes after the death of the victim, suggesting that in the area of forensic cases there will be other examples where quick autopsies have occurred. 33. Miller and Truog are not able to reject this conclusion, as they might in the case of our 92-year-old lady, by claiming that nothing of any significance is going to be done to the patient before the patient becomes a stone-cold corpse. Clearly, the warm autopsy will be performed before this point. See, for more argument on this point, page 17. 34. Note that these points answer an objection raised by an anonymous reviewer. The reviewer objected that, for Miller and Truog, it would be just as unnecessary to have a “dead body autopsy rule” as it is to have the dead donor rule, and so we may be setting up a “straw man.” Miller and Truog’s point, according to the reviewer, is that only for those who hold that the DDR, or any equivalent to the DDR outside the donation context, is necessary is the difference between dying and death a crucial issue. We agree that Miller and Truog may answer our contentions in this way. But, in reply, as just noted, we should not declare death unless we believe it has actually occurred. If we know it has not occurred when we declare it, then we simply should not be declaring it when we do. This is one reason for cleaving to the DDR and any equivalent. Further, we also think that if Miller and Truog took the view that any equivalent to the dead donor rule in respect of non-DCD practices (such as autopsy, early burial, etc.) is not necessary or should be abandoned, this would be a significant development in their position and it is not one that they expressly endorse anywhere in their texts. They certainly have not claimed that it is permissible to perform autopsies and burials on people before they are actually dead (because, for example, they are “as good as dead”). Broadening their claims to these other practices, as the reviewer suggests, would be tantamount to the view that we need not declare death or be sure that it has occurred before carrying out an autopsy or early burial. Much argument would be needed to defend such a controversial claim. Note, too, that we are responding in the text to the point Truog and Miller expressly make that we have to be more careful when declaring death in organ donation contexts than we do when declaring death outside that context because, outside that context, we can rely on routine hospital practice to ensure that death actually does occur (they assert that “the routine flow of hospital activity will provide an adequate death watch to ensure that the criteria for irreversibility are satisfied” [italics added, Truog and Miller, 2010, 17]). This point is not compatible with taking Miller and Truog to be claiming that death need not occur before warm autopsies are undertaken, because the point they actually make (as cited here) expressly relies on death actually occurring in the non-DCD context. Their point is that death will eventually occur in the non-DCD contexts, but has not occurred in the DCD context at the time organs are procured—our response being that death will not have occurred outside the DCD context either in many cases, including the case of early autopsies. 35. Many of these points apply equally well internationally. 36. See Collicott (1985). 37. For examples of misdiagnoses reported in the media, see British Broadcasting Corporation (2008); Daily Mail (2013) and British Broadcasting Corporation (2014); for reports by health authorities, see National Patient Safety Agency (2012). 38. See our remarks on autoresuscitation in note 3. 39. This point is only relevant to controlled DCD, also known as Maastricht III category nonheart beating donation, which is the most common form of DCD in the United States and the United Kingdom. 40. The report by the Judicial Council was in the same edition in JAMA where the Ad Hoc Committee of the Harvard Medical School defined irreversible coma as a new criterion for death. The authors would have been well aware that donation up until that point had all been DCD, such that if there had been concern over the determination of death in DCD contexts, or a desire that a higher burden of proof be required in either death determination standard, one would have expected it would have been made. 41. The United Kingdom has adopted the same standard for all deaths after cardiorespiratory arrest, regardless of donation, and thus fully satisfies the 1968 Council’s wording and, were it applicable, the UDDA. 42. Thanks to an anonymous reviewer for this reference. 43. CPR is more accurately referred to as basic life support, and the public can be trained in CPR. What hospital staff and ambulance officers carry out is advanced life support (incorporating resuscitation drugs, defibrillation techniques, and airway treatments) and requires additional training. 44. It might be objected that this is not so, because the condition can be reversed in some cases by autoresuscitation, which clearly does not involve the actions and intentions to which we have just referred. This is true enough, but the normal term is simply that the patient has autoresuscitated. We can of course say that the condition reversed itself, or spontaneously reversed, but the reflexive use of the verb is different from its transitive use, and so differs from the verb we use in contexts where spontaneous resuscitation has been ruled out as a possibility. The difference remains between reversible and fragile discussed above in the context of CPR patients. Also, when critics of DCD make these points about reversibility, they are making them against those who acknowledge that autoresuscitation must be ruled out. They are therefore objecting that the condition is reversible, where “reversible” exclusively refers to actions of people acting on intentions, such as CPR. 45. We have very slightly modified and embellished Marquis’s example. 46. It might be objected that if the heart is the organ that is transplanted, and the heart is restarted in the recipient, then we know that it could have been restarted in the donor (Marquis, 2010, 25–6; Miller and Truog, 2012, 104–5). This is not quite right. It is harder to start the heart in the donor than in the recipient because dying leads to changes in the body resulting in conditions such as acidosis which, during CPR situations, makes successful CPR less likely. So we cannot necessarily infer from the fact that it is started in the recipient that it could have been restarted in the donor. Furthermore, as we have argued, the question is whether it is appropriate to attempt to restart the cardiorespiratory function in the donor; if it is not appropriate, then the cessation is permanent in the donor and death can be declared. If the heart is restarted in the recipient, it is not the donor who is revived. Rather, it is the cardiorespiratory function of the recipient that is restarted. Even champions of the irreversibility criterion must agree with this; otherwise, they are forced to claim that the donor remains alive long after the rest of the donor has been cremated, simply on account of the fact that the donor’s heart is beating in another person. We discuss heart transplantation in detail in McGee and Gardiner (2017a). See also McGee, Gardiner, and Murphy (2018), and McGee and Gardiner (2017b). ACKNOWLEDGMENTS We would like to thank Dr Melanie Jansen for patiently proof-reading the article and for her many comments and suggestions. 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