On these pages we honour the intellectual contributions of our esteemed colleague and dear friend, Ken Mason, in the broad field of medical jurisprudence. We invite short academic posts up to 1,000 words that are inspired by Ken Mason’s writing in the field. Anyone who knew Ken or has been influenced by his work is welcome to submit a proposal to Graeme.Laurie@ed.ac.uk.

Ken Mason was an Honorary Fellow in the School of Law at the University of Edinburgh for 32 years, from 1985 until his death on 26 January 2017. Even before joining the School of Law officially, Ken was publishing significant contributions in medical law and ethics during his time as Regius Professor of Forensic Medicine, also in Edinburgh, from 1973-1985. During that early period he established honours and masters courses in medical jurisprudence with his colleague Alexander (Sandy) McCall Smith, and this work formed the basis of their textbook, Law and Medical Ethics, that was first published in 1983. It was the first such textbook of its kind in the United Kingdom and helped to establish Ken Mason has an unassailable founding father of the discipline in the UK. The book has been used by multiple generations of undergraduate and postgraduate students since its first appearance, and many of Ken’s former students offer contributions on these pages that speak of the ways in which Ken and his intellectual ideas have inspired them.

Ken Mason was a prodigious scholar. He was fascinated by all aspects of medical law and ethics, which in Edinburgh we call Medical Jurisprudence. This both reflects the historical links between medicine and law that have existed in our institution since the 18th century, and also captures the idea that our field transcends disciplines and requires input across different specialities to make genuinely influential contributions. While Ken’s command of the law was often superior to that of many of his legal colleagues, his interests were particularly engaged by reproduction & the law, as well as by end-of-life issues. True to form, however, Ken was always open to changing his mind. It was not unusual from one academic year to the next for colleagues to be wrong-footed by a 180-degree volte face by Mason on any given topic! On more than one occasion, he declared himself a feminist - as much to his own surprise as to anyone else’s.

Still, Ken often professed to having a ‘bee in his bonnet’ about stubborn issues and questions in medical jurisprudence. In particular, we recall the following:

- he strongly supported the view that a mature minor should not be allowed to refuse treatment, even is she has capacity to consent (Gillick)

- he took issue that that law affords the fetus ‘no rights’;

- he was vexed by the ‘individualistic’ turn in medical law, and was drawn to notions such as relational autonomy;

- he often called himself a communitarian, and he was intrigued by areas of law and ethics that reflected this idea;

- he was engaged by assisted dying legislation, especially on what would count as adequate safeguards and whether medical practitioners should be involved;

- he insisted that death was a process, and not a moment, and he was frustrated by law’s failure to reflect this: this has implications for his view on transplantation;

- he vehemently disagreed with the rule that you cannot recover for the birth of a healthy child even when there is negligence;

- he would have been fascinated by the current revisitation of the 14-day rule in embryo preservation and use.

You will find contributions here that reflect these and many other of Ken Mason’s ideas. As stated above, we welcome contributions from anyone who knew him or his work. As a reminder, here are some links to Ken’s contributions to medical jurisprudence over the years as well as to other examples of the work of people who have honoured him:

-Ken Mason's publication list on Edinburgh Research Explorer

-Ken Mason’s monograph, The Troubled Pregnancy (CUP, 2007)

-Ken Mason’s festschrift, First Do No Harm (SAM McLean (ed), Ashgate, 2006)

We will continue to populate this site with contributions as and when the come in. We will alert audiences via the Mason Institute and its Twitter account @masoninstitute.

If you would like to contribute, please contact Graeme.Laurie@ed.ac.uk

If you would like to become a member of the Mason Institute, please contact Annie.McGeechan@ed.ac.uk

If you would like to leave a message of condolence, please visit the official site here: www.inmemoryofkenmason.law.ed.ac.uk

Please scroll down this page to read our latest blog posts.

Tuesday, 25 April 2017

Taking up the Ken Mason baton: organ transplantation and defining death

By Murray Earle, School of Law, University of Edinburgh

I arrived in Edinburgh in 1993, with the intention of completing a one-year taught LLM degree. The fact that I am still here is in no small part due to the intellectual seeds that were sown that year, by Ken Mason and Sandy McCall Smith, who led some very lively and engaging discussions in medical jurisprudence. They were to go on to jointly supervise my PhD thesis in informed consent – an area of the discipline that was at the time in danger of being academically overworked, but which has enjoyed something of a revival with the decision in Montgomery v Lanarkshire Health Board from the Supreme Court in 2015.[1]

Towards the end of that first year, I saw Liz Lochhead’s play Mary Queen Of Scots Got Her Head Chopped Off, at the Lyceum Theatre. Written in Scots, the play was accessible because of the many Scots words that are still in common usage. ‘Ken’, I had already mused, is transitive of ‘to know’ – and to my great benefit had taken on the personified causative form of ‘to make known’.

That is what Ken constantly undertook: as well as a prodigious publications list, he was always committed to teaching. His method was Socratic, posing consistently challenging questions so that arguments and points of view would emerge through discussion and debate.

The baton that Ken passed to me came in the form of an update to his chapter in Principles of Medical Law, for the 4th edition.[2] On learning from his invitation to ‘take over’, of his anxiety to ‘keep it in the family’, I experienced that odd combination of honour and gratification – and absolute anxiety that the shoes I was set to fill were several sizes too spacious.

As well as updating the case law, Ken listed what he called ‘snags’, but which I preferred to understand as comprising the baton being passed. He insisted that while death may be a process rather than an event, it is an ‘absolute’ state, and that a chapter that carries the title ‘Death’ should not contain a substantive discussion of topics like the permanent vegetative state, the minimally conscious state, nor indeed organ transplantation. And so, my first task in continuing Ken’s legacy turned out to be a kind of editorial diplomacy. Despite the undeniably pleasing ‘well done!’ from Ken, it was the willingness of others – in particular Professor Jonathan Herring – that secured the location of many of those topics in the chapter ultimately called ‘Ending Life’.

It is to Ken’s credit that there are many readers that are now able to see and understand the links among and between these different topics, as well as their most fitting location.

My next task was less straightforward.

Among the few issues that Ken wanted to discuss in detail was the ‘agonal period’, between somatic and cellular death, which has not benefitted from a wealth of legal attention, but which has significant implications for transplant medicine.

We were agreed on two critical issues: that despite editorial exclusion in Principles, transplantation and death are intertwined subjects;[3] and that to distinguish between types of death involves a misconception that runs counter to our understanding of death as an absolute state. That misconception would hold that the type of death accepted as definitive (cardio-respiratory and brain-death), is determined by the utility of that diagnosis. This would have the dangerous consequence of placing the transplantation needs of others ahead of the diagnosis of the primary patient.

There may not be different types of death, but before that absolute anoxic state is reached, and during the process that has death as its culmination, a person may be in a number of different states (rather than stages which suggest a defined sequence of events). This, however, is a medical understanding. Legally and socially, an identifiable time is required that marks the occurrence of death.

The cellular tissues of the brain are distinguishable from all other tissues by their capacity for cognitive function and their incapacity to regenerate. If our definition of ‘life’ is dependent on cognition, then ‘death’ must be dependent on its absence.[4] This final period in a person’s life marks a transition between a status deserving of respect for the person, to one of respect for the corpse. This underlines the call for a legally identifiable watershed moment. This is to be contrasted with the medical reality that death, or at least natural death, is a process not an event.

The often brief liminal period between brain and cellular death can be extended by artificial cardio-respiratory systems, giving rise to the (brain-stem dead) ‘beating heart organ donor’, and which raises the utilitarian controversies already mentioned. The usefulness to transplantation medicine of organs that have remained well oxygenated, is undeniable. It is also only possible with reliance on brain-stem death as the criterion for ‘death’ to have legal effect.[5]

The conflation of organ procurement provisions and diagnostic criteria is ethically troublesome, and open to confusion. Can the use of neurological criteria truly be dissociated from the pragmatics of organ procurement, when individuals diagnosed as ‘brain-dead’ are the source of the organs without which transplants cannot take place,[6] and when brain death and brain-stem death are often used interchangeably? If we accept the pervasiveness of the neurological criteria for death, and most crucially its reference to irreversibility, will that involve the moral acceptance of the utilitarian perspective of deriving some good from a life that cannot continue?

The very use of the words ‘cannot continue’, must admit the view that this life has not yet ended, albeit that life is being artificially sustained, the biologically inevitable process of death held in abeyance at its threshold. During that period a person has not, in the views of many including Ken Mason, achieved the end of the process, and any definition or definitive criterion that casts its net widely enough to include those people, does so to the valid criticism of many.

There are those who hold that the term ‘death’ should only be applied to those whose heart has ceased beating, and that those diagnosed as brain-dead have not died in the accepted cardio-vascular sense, but are in a ‘near death’ state and should be legally available as organ donors.[7] This, according to Miller et al, requires the acceptance of the ‘moral fiction’ that, ‘[d]onating vital organs is believed to be ethical only insofar as it conforms to [the Dead Donor Rule].’[8] That, in turn, raises the question of whether the donor is in fact dead, when the artificially ventilated brain-dead patient is still able to perform a range of integrated biological functions such as temperature control and the metabolising of food. If the patient is dead only in the sense of the irreversibility of their artificially-maintained vital functioning, and examples exist of patients resuscitated following asystole, the argument may be advanced that the condition is ‘irreversible as a matter of intention rather than as an unalterable fact.’[9] The legal fiction, then, justifies the patient’s death as resulting from their underlying medical condition. It also exposes the need to distinguish brain-death from brain-stem death, as thermoregulation is impaired in the latter state.

And yet it is impractical in the clinical setting to fulfill the neurological diagnostic criteria to establish the absence of higher brain function following cardio-respiratory collapse, which may go some way to explain why the available guidance – at last in the United Kingdom – is not based on brain function, but on the possibility of auto-resuscitation.[10] The lack of standardisation and guidance is an issue that vexed Ken, not least due to the variation, internationally, in the required period between anoxia and cessation of brain function (ranging from two to fifteen minutes) that will justify non-heart-beating organ donation. The protocols developed are applicable to ‘planned decisions to withdraw life support’, and involve the legal fiction already considered.[11]

It has been argued that brain death has, since its introduction in 1965, had the ‘principal’ and statistically successful aim of facilitating organ transplantation.[12] Its acceptance also paved the way for the Uniform Determination of Death Act 1980 in the United States,[13] which uses irreversible cessation of the whole brain in the alternative to irreversible cessation of circulatory and respiratory functions to determine that death has occurred. Avoidance of the confusion of diagnosis of death and organ procurement will require an understanding that artificially maintaining cardio-respiratory function merely slows the pace of assessment and prognosis, such that a diagnosis of brain-stem death merely confirms what is already known from clinical observation.

As well as those questions already raised in this blog post, further issues are open for exploration through future research:

What do we mean by ‘law’s failure to reflect that death is a process’ – a failure that frustrated Ken?

Would legal recognition mean a return to a triadic definition of death?

Would a consequence of that approach be to reduce further the number of viable organs available for transplantation, just as the use of brain-stem criteria is able to increase that number?

End-of-life issues other than the procurement of organs for transplantation also arise. Some of these issues may, or even should, involve broadening our notion of the liminal period between life and death, to include those with a terminal prognosis, yet not requiring artificial cardio-respiratory support. During that period – be it leading to a permanent vegetative state or a minimally conscious state,[14] or during a terminal disease stage in which legal capacity may or may not be compromised – there is a call for a greater understanding of that person’s preferences as to their care.[15] This raises questions of how those preferences are known, whether the patient and their family have been consulted, and whether current guidelines are in line with the case law.[16]

I certainly look forward to running with the baton that has been passed by Ken Mason.

[1] Montgomery v Lanarkshire Health Board [2015] UKSC 11 https://www.supremecourt.uk/decided-cases/docs/UKSC_2013_0136_Judgment.pdf
[2] Judith Laing and Jean McHale (Eds) Principles of Medical Law (4ed). Oxford University Press. 2017. https://global.oup.com/academic/product/principles-of-medical-law-9780198732518
[3] On the relationship between the definition of death and organ transplantation, see S D Shemie, ‘Clarifying the paradigm for the ethics of donation and transplantation: was ‘dead’ really so clear before organ donation?’ (2007) 2 Philos Ethics Hummanit Med 18.
[4] Academy of the Medical Royal Colleges. A Code of Practice for the Diagnosis and Confirmation of Death. London, 2010. http://www.aomrc.org.uk/publications/reports-guidance/ukdec-reports-and-guidance/code-practice-diagnosis-confirmation-death/
[5] See Human Tissue Act 2004, s.43 on maintaining and preserving bodies prior to transplantation
[6] Margaret M Lock, Twice Dead: Organ Transplants and the Reinvention of Death. University of California Press. 2001.
[7] R D Truog, and W M Robinson, ‘Role of Brain Death and the Dead- donor Rule in the Ethics of Organ Transplantation’ (2003) 31 Crit Care Med 2391.
[8] F G Miller, R D Truog, and D W Brock, ‘The Dead Donor Rule: Can It Withstand Critical Scrutiny?’ (2010) 35 J Med Philos 299– 312
[9] Ibid.
[10] Code of Practice for the Diagnosis and Confirmation of Death, Academy of Medical Royal Colleges (2008), and An ethical framework for controlled donation after circulatory death. Academy of Medical Royal Colleges (2011).
[11] S K Shah, R D Truog, and F G Millar, ‘Death and legal fictions’, (2011) 37 J Med Ethics 719-22 and S K Shah and F G Millar, ‘Can we handle the truth? Legal fictions in the determination of brain death’ (2010) 36 Amer J Law Med 540.
[12] I H Kerridge et al, Death, dying and donation: organ transplantation and the diagnosis of death, (2002) 28 J Med Ethics 94
[13] United States Uniform Acts, Uniform Determination of Death Act 1980: www.lchc.ucsd.edu/cogn_150/Readings/death_act.pdf
[14] Vegetative and Minimally Conscious States, Parliamentary Office of Science and Technology Note, March 26, 2015. http://researchbriefings.parliament.uk/ResearchBriefing/Summary/POST-PN-489
[15] Our Commitment to you for end of life care. The Government Response to the Review of Choice in End of Life Care. Department of Health. July 2016.
[16] Tracey v Cambridge University Hospital NHS Foundation Trust [2014] EWCA Civ 822 https://www.judiciary.gov.uk/wp-content/uploads/2014/06/tracey-approved.pdf

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