Brain Death: A comparison of the legal criteria in three countries US, UK and India

Introduction

Brain death has been medically and legally defined as the irreversible cessation of all brain activity, for nearly 40 years. Death was defined by the cessation of blood circulation before the 1940s. Death from cessation of circulation became “reversible” after the development of mechanical ventilation and cardiopulmonary resuscitation during the 1950s and physicians started treating patients who were permanently comatose, unable to be liberated from life-support machines.¹ This led to a multidisciplinary committee of the Harvard Medical School assembling to “define irreversible coma as a new criterion for death,” and then established medical criteria for the permanently non-functioning brain.² The use of this criteria spread to other hospitals across the country. By the late 1970s, this criteria was still not legally binding and individual states had different criteria of death. A patient could be legally dead in one state but alive in another which warranted a further diagnostic criteria to define brain death.³

The United States of America

The American Academy of Neurology (AAN) Quality Standards Subcommittee established the diagnostic criteria for clinical diagnosis for brain death in adults in 1995.

It begins with a few pre conditions to be met prior to testing for brain death. Identification of a cause for brain dysfunction and excluding confounding conditions such as shock or systemic hypotension, Hypothermia (Temperature less than 36 degree celcius), Drug intoxication, sedative medication, Primary Brain stem injury, Metabolic encephalopathies and electrolyte disturbances. The patient should meet neurological criteria for brain death such as absence of the pupillary reflex, corneal reflex, oculocephalic reflex, and oculovestibular reflex, cough, gag and apnea testing.

When the components of the standard brain death examination cannot be performed or are inconclusive, such as facial trauma, incomplete apnea testing, and severe electrolyte or endocrine abnormalities ancillary tests are used to further confirm brain death.⁴

These include the following, Digital Subtraction Angiography of the Cerebral Vasculature, Brain Radionuclide imaging, Electroencephalogram, Transcranial Doppler, CT angiogram, MR angiogram, Somatosensory Evoked Potentials and Brain Tissue oxygenation.⁵

The United Kingdom

The United Kingdom further defines Brain Death according to the ‘Code of Practice for the diagnosis and confirmation of Brain Death’, approved by the Academy of Medical Royal Colleges.

In this document, act of diagnosing and confirming death was not confined to the medical profession even though the members of the Academy were predominantly medical professionals.  In case organ or tissue donation is considered in a patient who is dead in Scotland, it is legally required that the diagnosis and confirmation of death should be undertaken by a doctor.

However, in all four nations of the UK, the confirmation of suspected death can be and frequently is, undertaken by a wide range of individuals and there is no legal requirement that a doctor be involved. Nurses, paramedics and other pre-hospital clinical responders may be involved in the determination of death. Non-healthcare professionals, such as police officers, might undertake the diagnosis and confirmation of death in some circumstances.

The Code of Practice for the Diagnosis and Confirmation of Brain Death provides an authoritative diagnostic criteria for any person confirming death in the UK or the clinical foundation for writing profession-specific guidance. This has helped to ensure that all deaths were diagnosed and confirmed in an accurate, standardised and timely manner.

The diagnosis and confirmation of death of the person who has died has important implications for themselves, their family and friends, healthcare professionals and society. The consequences can include:

• The withholding of any medical intervention utilized to sustain or re-establish life.
• The initiation of after-death rituals, customs, grieving and mourning.
• The shifting of the person who has died to a funeral home, mortuary or another approved location.
• The care and preparation of the person who has died for burial, funeral or cremation.
• Post-mortem examination where required.
• Organ and tissue donation in certain circumstances.
• A change in the legal status of the person who has died and a change in the legal status of other family members (for example in relation to property ownership).

Since different organs, tissues and cells cease function and begin to decay at different rates Death is seen as a process rather than an event. Hence, it is necessary to define a point in this process where death can be diagnosed and confirmed in an accurate, standardised and timely manner.⁶

The Code of Practice for the diagnosis and confirmation of death by the Academy of Medical Royal Colleges has recently released a 2025 update, the highlights are as follows.

An outline of the Code

Since death occurs at all ages and in many settings, care homes, hospitals, individual residences, workplaces and public spaces, the primary purpose of the Code was to outline the criteria by which death can be diagnosed and confirmed in an accurate, standardised and timely manner, in whatever the circumstance in which the death occurred.

Section 2 of the Code defines the point at which death can be diagnosed and confirmed.

Section 3 introduces the three sets of diagnostic criteria which can be used to confirm death such as Somatic Criteria, Circulatory Criteria and Neurologic Criteria. It also highlights the clinical circumstances where a particular set of criteria would be most appropriate to use.

Somatic criteria said to be appropriately used when death follows overwhelming physical trauma or when death is suspected to have occurred a considerable time before. These criteria can be used by healthcare professionals or other competent individuals.

Circulatory criteria are to be appropriately used when death follows cardiorespiratory arrest and is the most common way death is diagnosed and confirmed. Ordinarily, only healthcare professionals are to use this criteria.

Neurological criteria are appropriately used when death follows a traumatic brain injury but where the circulation is being maintained by ongoing mechanical ventilation and other intensive care interventions.

Somatic criteria finds importance in forensic, midwifery, the ambulance services and other community medical, nursing and emergency services. The Association of Ambulance Chief Executives (AACE) and Joint Royal Colleges Ambulance Liaison Committee (JRCALC) in the United Kingdom, provide guidance for paramedics and other relevant healthcare professionals called ‘Conditions unequivocally associated with death.’ 

CPR will not be effective and should not be attempted if there are the presence of signs associated with these conditions. This can include doctors, registered nurses, advanced practitioners, paramedics, pre-hospital clinical responders; and other non-healthcare professionals. 

The somatic criteria include, Decapitation, Massive cranial and cerebral destruction, Hemicorporectomy, incineration, and time based signs such as post mortem hypostasis, rigor mortis, decomposition, putrefaction and foetal maceration in a new born. 

When circulatory criteria confirms death there is no requirement to attempt resuscitation or diagnose death using somatic or neurological criteria. Before diagnosing and confirming death using circulatory criteria, there must be a decision not to attempt or continue resuscitation. Circulatory criteria is also applied in incidents where resuscitation was attempted but was unsuccessful. After 5 minutes of continuous absence of the circulation permanent cessation of brain stem can be safely diagnosed, allowing death to be confirmed . This is because at 5 minutes the possibility of spontaneous resumption of cardiac function (autoresuscitation) will have passed.

Ordinarily a healthcare professional such as doctors, nurses, advanced practitioners and paradmedics, who are physically present with the patient being diagnosed deceased should carry out the diagnosis of Death using Circulatory criteria. Endorsed, profession-specific guidance is provided for registered nurses for use in expected adult deaths.

There are a few preconditions for the application of circulatory criteria

1. Death should have not been confirmed using somatic criteria or neurological criteria.
2. The patient should appear to be unconscious and in cardiorespiratory arrest.
3. The healthcare professional must be satisfied there are no further appropriate therapeutic options which would benefit the patient before using the circulatory criteria to diagnose and confirm death.

One of the following must be fulfilled:

1. A decision has been made not to commence resuscitation. When there is a valid and documented ‘DNACPR’ (Do Not Attempt CPR) recommendation, ReSPECT form (Recommended Summary Plan for Emergency Care and Treatment. It is a document that summarizes a person’s wishes for their medical care in an emergency when they cannot make or express their own choices.) advance decision or equivalent.
2. Attempts at resuscitation have been made but have been unsuccessful and stopped. Before stopping resuscitation, healthcare professionals are to carefully consider relevant national resuscitation guidance and consider the possibility of reversing any contributing cause to the cardiorespiratory arrest. The need to attempt or continue CPR must be considered if there is any doubt.

Special Circumstances

Professional organisations in the UK such as Resuscitation Council UK, Royal College of Emergency Medicine, ECMO services or the National Health Service (NHS) Blood and Transplant may choose to implement additional safety criteria for the diagnosis and confirmation of death when special circumstances such as Extra corporeal membrane oxygenation, prolonged CPR or other modes of mechanical circulatory support are utilised.

In patients following a traumatic brain injury who remain in a deep coma (Glasgow Coma Scale score 3), and have no observed brainstem reflexes, are apnoeic with their lungs being mechanically ventilated, but in whom circulation and other bodily functions persist, Neurologic criteria are then used.

The confirmation of death using neurological criteria is a clinical diagnosis that should be made by at least two doctors who have had full registration with the General Medical Council (GMC) – or equivalent international professional body recognised by the GMC – for more than 5 years and are competent to diagnose and confirm death using neurological criteria in the UK. It is mandatory that at least one of the doctors must be a consultant. Each should independently diagnose Brain Death and must be satisfied that all the necessary preconditions for the application of neurological criteria are met or can be confirmed by the addition of an ancillary investigation.

The two doctors are then to work together to perform a full set of clinical tests. The clinical tests are then repeated and must always be performed on two occasions i.e. a total of two sets of clinical tests (including two apnoea tests) should be performed. 

It is to be noted that there may be non-brain mediated movements such as spontaneous or stimulated spinal reflexes, automatisms and muscle fasciculations which are recognized after confirming death using neurologic criteria. These movements are independent of the brain and are initiated at the spinal cord or at a neuromuscular level. They may appear or remain while mechanical ventilation and other interventions deliver oxygenated blood to the spinal cord and other parts of the body. The longer somatic support is continued after the diagnosis and confirmation of death using neurological criteria, the more likely non-brain mediated movements will remain. These movements do not indicate that there is any form of consciousness associated with human life nor any brainstem function.

The significance of these movements are to be explained by the Healthcare professionals to the patient’s family, and other staff, to help them understand that they do not originate from the brain. 

The UK being a socially, religiously and culturally diverse country, it is considered important for the healthcare professionals to be sensitive and ensure that any specific cultural, faith, belief or needs of the person who has died and the bereaved are considered when diagnosing and confirming death. Healthcare professionals are encouraged to ask family and friends what practices around the time of death are important to them and the person who has died^.

The Indian Approach to Legally Defining Brain Death

The concept of Brain death and brain-stem death, its legal implications and its relevance to organ donation are new to most of the general population and is still unclear to many medical practitioners and students. India first enacted a law in 1994 to legalize brain-stem death and most Indian states passed this act in their assemblies, however, a few states have yet to accept it. ⁷

The Transplantation of Human Organs (THO) Act was passed by Indian parliament in 1994 which legalized the Brain-stem death. The state of Maharashtra recently passed a resolution making it mandatory to declare and certify “brain-death”. The Government Resolution made the responsibility of hospitals registered under THO (Transplantation of Human Organs) Act 1994 as authorized transplant centers. 

Since a large number of brain-death occurred in non-transplant hospitals, it authorized the Director of Health Services to register all hospitals in the state that have an operation theatre and ICU as Non-Transplant Organ Retrieval Centers (NTORCs). These hospitals were permitted to certify brain-death as per procedure and then conduct organ retrieval for therapeutic purposes but were not permitted to perform actual transplantation.

Diagnosis of Brain stem Death in India

Brain-stem death is medically and legally defined as the total and irreversible cessation of all brain-stem functions. Diagnosis of brain-stem death is necessary to discontinue artificial ventilation and to ask legal consent for organ donation from relatives.

In India the THO Act 1994 and the THO Rules, 1995 are the only laws wherein brain-death certification procedures have been laid down. Brain-Death Certification format according to Form 8 of the THO Act and Rules is to be utilized to certify brain-stem death.  It states:

• A Team of four medical experts should diagnose brain death such as:
  • Medical Administrator In charge of the hospital.
  • Authorized Specialist
  • Authorized Neurologist/Neuro-Surgeon
  • Medical Officer treating the patient.

Amendments in the THO Act (2011) have allowed selection of a surgeon/physician and an anesthetist/intensivist, in case the approved neurosurgeon/ neurologist is not available.

In addition to the tests described by the American Academy of Neurology, (1995) all the prescribed tests are required to be repeated, after minimum interval of 6 hours, “to ensure that there has been no observer error” and persistence of the clinical state can be documented. ⁸

Conclusion

As newer ancillary tests are being included into determining Brain Death, it is imperative that nations come to a consensus regarding the diagnosis of Brain Death. This forms special emphasis with regards to patients dying in other countries and if required, the need for organ transplantation. This review compares the practice followed in three nations, the United States of America, the United Kingdom and India. It is noteworthy that this is an area that is still under study and newer case reports under review add to the case laws further augmenting the deliberation of the determination of Brain Death in the same countries.

Foonotes

1. Lofstedt S, Von Reis G. Intracranial lesions with abolished passage of X-ray contrast throughout the internal carotid arteries. Opuscula Medica. 1956;8:199–202. [Google Scholar], Mollaret P. Le coma dépassé. Rev Neurol. 1959;1:5–15. [Google Scholar], Wertheimer P, Jouvet M, Descotes J. A propos du diagnostic de la mort du systeme nerveux-dans les comas avec arret respiratoire traites par respiration artificielle. Presse Med. 1959;67(3):87–88. [PubMed] [Google Scholar] ↩︎
2. A Definition of Irreversible Coma. JAMA. 1968;205(6):337. doi:10.1001/jama.1968.03140320031009. [PubMed] ↩︎
3. Truog RD, Pope TM, Jones DS. The 50-year legacy of the Harvard report on brain death. JAMA. 2018;320(4):335–336. doi: 10.1001/jama.2018.6990. [DOI] [PubMed] [Google Scholar] ↩︎
4. Wijdicks EFM. Determining brain death in adults. Neurology. 1995;45(5):1003–1011. doi: 10.1212/wnl.45.5.1003. [DOI] [PubMed] [Google Scholar] ↩︎
5. Biel S, Durrant J. Controversies in Brain Death Declaration: Legal and Ethical Implications in the ICU. Curr Treat Options Neurol. 2020;22(4):12. doi: 10.1007/s11940-020-0618-6. Epub 2020 Mar 18. PMID: 38624320; PMCID: PMC7223748. ↩︎
6. A code of practice for the diagnosis and confirmation of death 2025 update. Available at: https://www.aomrc.org.uk/wp-content/uploads/2025/01/Code_of_Practice_Diagnosis_of_Death_010125.pdf (Accessed: 09 November 2025). ↩︎
7. Dhanwate AD. Brainstem death: A comprehensive review in Indian perspective. Indian J Crit Care Med. 2014 Sep;18(9):596-605. doi: 10.4103/0972-5229.140151. PMID: 25249744; PMCID: PMC4166875. ↩︎
8. Government of India. Ministry of Law, Justice and Company Affairs (Legislative Department) New Delhi. The Transplantation of Human Organs (Amendment) Act, 2011. (No. 16 of 2011) [Last accessed on 2014 Jul 11]. Available from: http://www.mohanfoundation.org/THO-amendment-act-2011.pdf . ↩︎