Is Consent Required for Clinicians to Make a Determination of Death by Neurologic Criteria?

Is Consent Required for Clinicians to Make a Determination of Death by Neurologic Criteria?
Book Chapter
Thaddeus Mason Pope
Death Determination by Neurologic Criteria, 1 January 2023; pp 287–303 [Springer]
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.