Chapter 7
Certainty about when death occurs

7.1In this chapter we examine whether the proposed new statute should clarify the legal definition of death. When the law provides that rights, powers or duties arise (or cease) upon death, there can be uncertainty about whether those things apply when a person is in a state that resembles death, such as brain death.

7.2Dying is a process, rather than an event that happens at one particular point in time. Prior to the 1960s, people were diagnosed as dead when they stopped breathing. This is known as “circulatory death”. With the advent of artificial respiration in the 1960s, the medical profession was prompted to re-examine the determination of death for the purposes of removing artificial respiration and of organ transplantation. Over the following two decades, medical professionals increasingly added a determination of “brain death” to the criteria for death, on the basis that the determination of death indicates that an irrevocable point in the dying process has been reached (not that the process has ended), and patients that are brain dead have reached that irrevocable point. The Australian and New Zealand Intensive Care Society’s Statement on Death and Organ Donation66 therefore adopts the point of “brain death” as the point at which organ donation may proceed.
7.3In the past few decades, many jurisdictions also adopted a legal definition of death as meaning the irreversible cessation of all function of the brain (sometimes as an alternative to circulatory death).67 New Zealand is one of the few countries from those that we generally compare ourselves to, that has not adopted a statutory definition of death, although there have been a number of attempts to do so.68
7.4“Brain death” is determined by reference to evidence of sufficient intracranial pathology (meaning a brain injury) and by clinical testing or by imaging that demonstrates the absence of intracranial blood flow. There is no documented case of a person who fulfils the preconditions and criteria for brain death ever subsequently developing any return of brain function.69
66Australia and New Zealand Intensive Care Society The ANZICS Statement on Death and Organ Donation Edition 32 (2013) at 14.
67These statutes establish a general legal standard for determining death but do not determine the diagnostic tests and medical procedures required, leaving the medical profession free to formulate acceptable medical practices.
68The Crimes Bill 1989 provided that a person would be dead “[W]hen an irreversible cessation of all function in the person’s brain stem has occurred”. That Bill did not proceed. A similar definition was in the Human Tissue (Organ Donation) Amendment Bill promoted as a member’s bill by Dr Jackie Blue, primarily to establish a register of organ donors. That Bill did not progress because it was considered unnecessary to establish a register at that time.
69​Australia and New Zealand Intensive Care Society, above n 66, at 17.