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When someone was legally dead? This is a question discussed by the Law Commission.
It released a 252-page report Death, Burial and Cremation – a new law for contemporary New Zealand, last week.
The report is a response to a request to undertake a first principles review of the Burial and Cremation Act 1964.
While the report is directed at laws governing burial and cremation, Chapter 7, Certainty about when death occurs, does examine whether there is a need to clarify the legal definition of death.
The commissioners concluded that common law does not provide certainty as to whether a person who is brain dead is dead for the purposes of the law.
However they did not recommend any change in the law regarding a legal definition of death “because the status quo does not present a significant practical problem for the statutory duties proposed in this Report.”
They say however that the lack of a statutory definition of death may present a greater problem in other areas of the law.
The commissioners conclude that “While 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.”
They note however 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.”
The report made 127 recommendations for change burial and cremation laws.
It has been tabled in Parliament for ministers to consider developing new legislation.
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