Abstract

This note showed how easily the concept of death, the legal definition of death and the medical diagnostic criteria to determine the exact moment of death are confused. What may appear to be a question of semantics is actually a complex issue, especially when considering whether a medical practitioner has a duty to confer the status of death on a brain dead patient or whether the status of brain death merely provides the medical practitioner with the opportunity to do so.
To determine the moment of death is very important for various purposes in medico-legal practice. The moment of death may not only assist and be regarded as valuable evidentiary material in criminal investigations but it is also important in the context of organ transplantation, questions regarding euthanasia, insurance claims, the termination of a marriage or business partnership as well as in the legal domain of succession. A diagnosis of death is furthermore important and necessary for society to commence with religious and/or traditional rituals, burials etcetera (Farrell and Levin “Brain Death in the Pediatric Patient: Historical, Sociological, Medical, Religious, Cultural, Legal and Ethical Considerations” Dec 21(12) 1993 Crit Care Med 1951ff). In order to determine the exact moment of death, however, is not an easy task, least of all a very simple and straightforward undertaking as Prof Christiaan Barnard suggested by asserting that a person is dead when the doctor says that the person is dead! (Barnard Good Life, Good Death: A Doctor’s Case for Euthanasia and Suicide (1980) 11.) To determine the exact moment of death, a definition of death is required as well as a standard to diagnose death – diagnostic criteria (Joffe “The Neurological Determination of Death: What Does it Really Mean?” 2007 23(2) Issues in Law & Medicine 120). This note will show that what initially may be regarded as general medical and legal requirements as well as basic semantics when referring to a definition of death, a concept of death and the criteria for the purposes of diagnosing death, is actually a very complicated, multifaceted and unsettled area of debate.