Professor Thaddeus Pope, JD, PhD, HEC-C, has published a chapter entitled “Is Consent Required for Clinicians to Make a Determination of Death by Neurologic Criteria?” in the recently released book Death Determination by Neurological Criteria: Areas of Controversy and Consensus, edited by Ariane Lewis and James L. Bernat (Springer, 2022). To learn more, see https://link.springer.com/book/10.1007/978-3-031-15947-3.
Abstract: “ The overwhelming weight of authority in the United States, Canada, and the United Kingdom holds that clinicians are not legally or ethically required to obtain family consent before making a determination of death by neurologic criteria. There is a consensus among professional guidelines, a consensus in statutes, and a near consensus among court decisions. Moreover, prevailing practice does not require consent. Accordingly, increasingly vocal proponents of a consent requirement bear a heavy burden to overcome the presumptive legitimacy of the status quo. While their arguments have some validity, proponents cannot surmount the weightier considerations against imposing a consent requirement. Nevertheless, even though clinicians and hospitals are not legally required to obtain consent, they should still notify families about the intent to make a determination of death by neurologic criteria and offer temporary reasonable accommodations when feasible.”