Chapter 7
Certainty about when death occurs


7.17We have concluded that the common law does not provide certainty as to whether a person who is brain dead is dead for the purposes of the law. However, there is a separate question about the extent to which the lack of certainty presents a problem to be resolved through this project.

7.18In the context of this Report, we consider that any uncertainty is unlikely to cause problems for the statutory duties that arise at the point of death, described above. Doctors do not certify death when a patient is diagnosed as brain dead. Rather, they wait until circulatory death has also occurred. We have not detected any suggestion that it should be otherwise. Similarly, no-one would suggest that the duty on the family to dispose of the body should arise while the body is still connected to a respirator.

7.19While it is outside the scope of this project, we suspect that greater difficulty arises in respect of organ transplantation due to the potential for doctors to carry liability for removing organs. However, it is interesting to note that few cases have reached the courts in New Zealand in the four and a half decades since the advent of artificial respiration. This may indicate that brain death is not particularly common and practical legal issues are usually resolved or avoided by good communication by health practitioners, by consensus or by alternative dispute resolution processes outside court.

7.20We have concluded that this Report should not make a recommendation for a statutory definition of death because the status quo does not present a significant practical problem for the statutory duties proposed in this Report. However, the lack of a statutory definition of death may present a greater problem in other areas of the law. Consequently, this issue would benefit from thorough analysis in the form of a separate specific reference. Such a project should analyse the current international thinking on brain death, whether the statutory definitions of death in other jurisdictions have in fact produced greater certainty and whether it is desirable or practical to have one definition of death for all legal purposes.