Chapter 7
Certainty about when death occurs


7.12Currently in New Zealand, in the absence of a statutory definition of death, a person needing to know whether “death” includes brain death must look to the common law for clarification. Unfortunately, the common law is unhelpful in this area. There have been only two cases in New Zealand that have discussed the definition of death, but neither provides clear guidance. Even if more case law is developed, each will consider only a narrow range of facts, which may or may not be relevant to future issues.

7.13In Auckland Area Health Board v Attorney-General,76 L suffered severe Guillain-Barré syndrome77 and had been on life support systems for 12 months but was not brain dead. The doctors sought a declaration from the High Court that the withdrawal of life support would not give rise to their criminal liability for homicide. The High Court acknowledged that the medical community no longer equates death with the cessation of a person’s heartbeat, instead using the concept of “brain death”, but it did not discuss a legal definition of death. It held that, on the facts of this case, the withdrawal of life support would not result in liability for homicide by the doctors because they were under no legal duty to provide life support and had a lawful excuse for withholding it (it provided no therapeutic benefit).
7.14In Joe v Joe,78 the Family Court had to consider whether to dissolve the marriage on the grounds that Mrs Joe was dead. Mrs Joe had suffered a severe stroke. She was permanently and irreversibly unconscious but was not brain dead and was able to breathe unassisted. Judge Inglis surveyed much of the literature on the definition of death and said:79

… advances in medical science and technology have taken us beyond the position where it is appropriate to think of death solely in terms of an irreversible cessation of respiration or circulation. But I find myself unable to accept that the Family Court, unaided by any statutory guidance, should go as far as declaring the common law in terms of [brain death].

[…] it could not be right for the common law to develop in such a way that the threshold of death could be fixed at different points depending on the individual circumstances. Some might find it acceptable to regard a state of permanent and irreversible unconsciousness, on its own, as a sufficient indication of death for the purposes of remarriage or for a grant of probate or administration. But it could be expected that there would be general difficulty in accepting the same criterion for the purpose of tissue or organ transplants, or for burial or cremation. […] It seems to me, however, that these are issues on which people’s values might be expected to differ quite widely and that if a threshold for death is to be fixed for any purpose below a level which attracts general acceptance in situations where there must be a high degree of certainty that death has occurred, that is function of Parliament, not the Courts.

7.15He then stated that Mrs Joe was not legally dead simply by attaining a state of permanent and irreversible unconsciousness. He added, however, that he might have been prepared to hold, as matter of law, that a person will be dead when there is irreversible cessation of brain stem function and when that person’s respiration and circulation can be sustained only by artificial cardiorespiratory processes. However, in this case, he was not required to do so nor thought it desirable to do so.

7.16We consider that these cases provide only limited assistance to a person with a legal duty under the new statute proposed in this Report arising after death. In Auckland Area Health Board, Thomas J described the medical profession’s established approach to determining when death has occurred, and he implied that the medical profession will decide in future on these issues “sensitive to the values of the community and alert to the requirements of the law”.80 However, he did not describe what currently amounts to death, and he did not suggest that this question should be determined solely by doctors. In Joe, Judge Inglis gave a strong indication that, if he had been required to decide, he would have concluded that death meant brain death, but he did not decide on the point and thought that this question should be determined by Parliament, not the courts.
76Auckland Area Health Board v Attorney General [1993] 1 NZLR 235 (HC).
77In Guillian-Barré syndrome, patients suffer inflammation of the peripheral nerves connecting the skin and muscles to the central nervous system leading to progressive weakness in the arms and legs. “Guillain Barré Syndrome Support Group NZ Trust” Neurological Foundation of New Zealand <é-syndrome-support-group-nz-trust>.
78Joe v Joe (1985) 3 NZFLR 675 (FC).
79At 682.
80Auckland Area Health Board v Attorney General, above n 76, at 247.