Legal and Ethical Considerations for Requiring Consent for Apnea Testing in Brain Death Determination.

The past decade has witnessed escalating legal and ethical challenges to the diagnosis of death by neurologic criteria (DNC). The legal tactic of demanding consent for the apnea test, if successful, can halt the DNC. However, US law is currently unsettled and inconsistent in this matter. Consent has been required in several trial cases in Montana and Kansas but not in Virginia and Nevada. In this paper, we analyze and evaluate the legal and ethical bases for requiring consent before apnea testing and defend such a requirement by appealing to ethical and legal principles of informed consent and battery and the right to refuse medical treatment. We conclude by considering and rebutting two major objections to a consent requirement for apnea testing: (1) a justice-based objection to allocate scarce resources fairly and (2) a social utility objection that halting the diagnosis of brain death will reduce the number of organ donors.

[Fourth update of the guidelines on determination of irreversible brain death. Procedural course and amendments]. / Vierte Fortschreibung der Richtlinie zur Feststellung des irreversiblen Hirnfunktionsausfalls. Verfahrensabläufe und Neuerungen.

In 2015 the fourth update of the directive for the determination of definitely irreversible loss of complete function of the cerebrum, cerebellum and brainstem was passed and came into force. This was preceded by several hearings of all professional societies and associations involved as well as a 2-year advisory process of an interdisciplinary working party. The directive is intended to determine irreversible brain death in the field of intensive care medicine and is independent of individual decisions about organ donation. Not only an update based on scientific data but also a clarification of the several procedures and a clear definition of the medical qualifications required were worked out. Furthermore, the technical procedures computed tomography (CT) angiography and duplex sonography were adopted for the diagnosis of cerebral circulatory arrest. The new directive including comprehensive explanatory notes was approved by the German Federal Ministry of Health and published by the German Medical Council (Bundesärztekammer).

[Non-heart-beating donors are ineligible]. / "Non-heart-beating donors" sind nicht geeignet.

The death of the donor is a mandatory prerequisite for organ transplantation (dead donor rule) worldwide. It is a medical, legal and ethical consensus to accept the concept of brain death, as first proposed in 1968 by the ad hoc committee of the Harvard Medical School, as a certain criterion of death. In isolated cases where the diagnosis of brain death was claimed to be wrong, it could be demonstrated that the diagnostic procedure for brain death had not been correctly performed. In March 2014 a joint statement by the German neuromedical societies emphasized that 1) the diagnosis of brain death is one of the safest diagnoses in medicine if performed according to accepted medical standards and criteria and 2) the concept of non-heart-beating donors (NHBD, i. e. organ donation after an arbitrarily defined duration of circulatory and cardiac arrest) practiced in some European countries must be absolutely rejected because it implicates a high risk of diagnostic error. According to the current literature it is unclear at what time cardiac and circulatory arrest is irreversible and leads to irreversible cessation of all functions of the entire brain including the brainstem, even though clinical signs of cessation of brain functions are always found after 10 min. Furthermore, is it often an arbitrary decision to exactly define the duration of cardiac arrest if continuous echocardiographic monitoring has not been carried out from the very beginning. Last but not least there are ethical concerns against the concept of NHBD because it might influence therapeutic efforts to resuscitate a patient with cardiac arrest. Therefore, the German Medical Council (BÄK) has repeatedly rejected the concept of NHBD for organ transplantation since 1995.

Neuroethics, neuroimaging, and disorders of consciousness: promise or peril?

The advent of powerful neuroimaging tools such as functional magnetic resonance imaging (fMRI) and positron emission tomography (PET) has begun to redefine how we diagnose, define, and understand disorders of consciousness such as the vegetative and minimally conscious states. In my paper, I review how research using these methods is both elucidating these brain states and creating diagnostic dilemmas related to their classification as the specificity and sensitivity of traditional behavior-based assessments are weighed against sensitive but not yet fully validated neuroimaging data. I also consider how these methods are being studied as potential communication vectors for therapeutic use in subjects who heretofore have been thought to be unresponsive or minimally conscious. I conclude by considering the ethical challenges posed by novel diagnostic and therapeutic neuroimaging applications and contextualize these scientific developments against the broader needs of patients and families touched by severe brain injury.

Epistemological considerations on neuroimaging--a crucial prerequisite for neuroethics.

PURPOSE: Whereas ethical considerations on imaging techniques and interpretations of neuroimaging results flourish, there is not much work on their preconditions. In this paper, therefore, we discuss epistemological considerations on neuroimaging and their implications for neuroethics. RESULTS: Neuroimaging uses indirect methods to generate data about surrogate parameters for mental processes, and there are many determinants influencing the results, including current hypotheses and the state of knowledge. This leads to an interdependence between hypotheses and data. Additionally, different levels of description are involved, especially when experiments are designed to answer questions pertaining to broad concepts like the self, empathy or moral intentions. Interdisciplinary theoretical frameworks are needed to integrate findings from the life sciences and the humanities and to translate between them. While these epistemological issues are not specific for neuroimaging, there are some reasons why they are of special importance in this context: Due to their inferential proximity, 'neuro-images' seem to be self-evident, suggesting directness of observation and objectivity. This has to be critically discussed to prevent overinterpretation. Additionally, there is a high level of attention to neuroimaging, leading to a high frequency of presentation of neuroimaging data and making the critical examination of their epistemological properties even more pressing. CONCLUSIONS: Epistemological considerations are an important prerequisite for neuroethics. The presentation and communication of the results of neuroimaging studies, the potential generation of new phenomena and new 'dysfunctions' through neuroimaging, and the influence on central concepts at the foundations of ethics will be important future topics for this discipline.

Neuroethics and neuroimaging: moving toward transparency.

Without exaggeration, it could be said that we are entering a golden age of neuroscience. Informed by recent developments in neuroimaging that allow us to peer into the working brain at both a structural and functional level, neuroscientists are beginning to untangle mechanisms of recovery after brain injury and grapple with age-old questions about brain and mind and their correlates neural mechanisms and consciousness. Neuroimaging, coupled with new diagnostic categories and assessment scales are helping us develop a new diagnostic nosology about disorders of consciousness which will likely improve prognostication and suggest therapeutic advances. Historically such diagnostic refinement has yield therapeutic advances in medicine and there is no reason to doubt that this will be the case for disorders of consciousness, perhaps bringing relief to a marginalized population now on the periphery of the therapeutic agenda. In spite of this promise, the translation of research findings into the clinical context will be difficult. As we move from descriptive categories about disorders of consciousness, like the vegetative or minimally conscious states, to ones further specified by integrating behavioral and neuroimaging findings, humility not hubris should be the virtue that guides the ethical conduct of research and practice.

Neuroimaging and disorders of consciousness: envisioning an ethical research agenda.

The application of neuroimaging technology to the study of the injured brain has transformed how neuroscientists understand disorders of consciousness, such as the vegetative and minimally conscious states, and deepened our understanding of mechanisms of recovery. This scientific progress, and its potential clinical translation, provides an opportunity for ethical reflection. It was against this scientific backdrop that we convened a conference of leading investigators in neuroimaging, disorders of consciousness and neuroethics. Our goal was to develop an ethical frame to move these investigative techniques into mature clinical tools. This paper presents the recommendations and analysis of a Working Meeting on Ethics, Neuroimaging and Limited States of Consciousness held at Stanford University during June 2007. It represents an interdisciplinary approach to the challenges posed by the emerging use of neuroimaging technologies to describe and characterize disorders of consciousness.

How Should Physicians Manage Organ Donation after the Circulatory Determination of Death in Patients with Extremely Poor Neurological Prognosis?

Organ donation after the circulatory determination of death (DCDD) accounts for a growing percentage of deceased organ donations. Although hospital DCDD protocols stipulate donor death determination, some do not adhere to national guidelines that require mechanical, not electrical, asystole. Surrogate decisions to withdraw life-sustaining therapy should be separated from decisions to donate organs. Donor families should be given sufficient information about the DCDD protocol and its impact on the dying process to provide informed consent, and donors should be given proper palliative care during dying. An unresolved ethical question is whether and how donor consent should be seen as authorizing manipulation of a living donor during the dying process solely for to benefit of the organ recipient.

From Healthcare to Warfare and Reverse: How Should We Regulate Dual-Use Neurotechnology?

Recent advances in military-funded neurotechnology and novel opportunities for misusing neurodevices show that the problem of dual use is inherent to neuroscience. This paper discusses how the neuroscience community should respond to these dilemmas and delineates a neuroscience-specific biosecurity framework. This neurosecurity framework involves calibrated regulation, (neuro)ethical guidelines, and awareness-raising activities within the scientific community.

Ethical issues in neuroscience.

PURPOSE OF REVIEW: The study gives an overview of ethical questions raised by the progress of neuroscience in identifying and intervening in neural correlates of the mind. RECENT FINDINGS: Ethical problems resulting from brain research have induced the emergence of a new discipline termed neuroethics. Critical questions concern issues, such as prediction of disease, psychopharmacological enhancement of attention, memory or mood, and technologies such as psychosurgery, deep-brain stimulation or brain implants. Such techniques are capable of affecting the individual's sense of privacy, autonomy and identity. Moreover, reductionist interpretations of neuroscientific results challenge notions of free will, responsibility, personhood and the self which are essential for western culture and society. They may also gradually change psychiatric concepts of mental health and illness. These tendencies call for thorough, philosophically informed analyses of research findings and critical evaluation of their underlying conceptions of humans. SUMMARY: Advances in neuroscience raise ethical, social and legal issues in relation to the human person and the brain. Potential benefits of applying neuroimaging, psychopharmacology and neurotechnology to mentally ill and healthy persons have to be carefully weighed against their potential harm. Questions concerning underlying concepts of humans should be actively dealt with by interdisciplinary and public debate.

Emerging neurotechnologies for lie-detection: promises and perils.

Detection of deception and confirmation of truth telling with conventional polygraphy raised a host of technical and ethical issues. Recently, newer methods of recording electromagnetic signals from the brain show promise in permitting the detection of deception or truth telling. Some are even being promoted as more accurate than conventional polygraphy. While the new technologies raise issues of personal privacy, acceptable forensic application, and other social issues, the focus of this paper is the technical limitations of the developing technology. Those limitations include the measurement validity of the new technologies, which remains largely unknown. Another set of questions pertains to the psychological paradigms used to model or constrain the target behavior. Finally, there is little standardization in the field, and the vulnerability of the techniques to countermeasures is unknown. Premature application of these technologies outside of research settings should be resisted, and the social conversation about the appropriate parameters of its civil, forensic, and security use should begin.

Imaging or imagining? A neuroethics challenge informed by genetics.

From a twenty-first century partnership between bioethics and neuroscience, the modern field of neuroethics is emerging, and technologies enabling functional neuroimaging with unprecedented sensitivity have brought new ethical, social and legal issues to the forefront. Some issues, akin to those surrounding modern genetics, raise critical questions regarding prediction of disease, privacy and identity. However, with new and still-evolving insights into our neurobiology and previously unquantifiable features of profoundly personal behaviors such as social attitude, value and moral agency, the difficulty of carefully and properly interpreting the relationship between brain findings and our own self-concept is unprecedented. Therefore, while the ethics of genetics provides a legitimate starting point--even a backbone--for tackling ethical issues in neuroimaging, they do not suffice. Drawing on recent neuroimaging findings and their plausible real-world applications, we argue that interpretation of neuroimaging data is a key epistemological and ethical challenge. This challenge is two-fold. First, at the scientific level, the sheer complexity of neuroscience research poses challenges for integration of knowledge and meaningful interpretation of data. Second, at the social and cultural level, we find that interpretations of imaging studies are bound by cultural and anthropological frameworks. In particular, the introduction of concepts of self and personhood in neuroimaging illustrates the interaction of interpretation levels and is a major reason why ethical reflection on genetics will only partially help settle neuroethical issues. Indeed, ethical interpretation of such findings will necessitate not only traditional bioethical input but also a wider perspective on the construction of scientific knowledge.