When will a person be declared legally dead under Australian law?

It’s often remarked that there are two certainties in life: death and taxes. We’ll ignore the taxes component and instead, we’ll take a closer look at the laws relating to death, because that’s always an uplifting topic. It’s understandable if you have never really thought too much about the legal implications relating to death, and when a person can be declared deceased. However, there are a number of legalities associated with death and if you have a morbid curiosity to learn more, please read on (insert ominous music).

The definition of death

If we use s 41 of the Human Tissue Act 1982 (VIC) as our guide, a person has died when there has been an:

• irreversible cessation of circulation of blood in the body of the person; or
• irreversible cessation of all function of the brain of the person.

The majority of jurisdictions in Australia have laws that mirror Victoria’s laws. However, interestingly in Western Australia, the Human Tissue and Transplant Act 1982 (WA) has provisions dealing with transplants from someone who is deceased, yet, there is no definition of death. Maybe no one really dies in Western Australia? If that’s the case, we should all move there pronto!

Brain death

When looking at brain death, tests that may exclude brain death can include seizures either general or focal, or abnormal postures to name two examples.

When determining brain death, some of the signs that may be illustrative of brain death can include some of the following:

• the pupils are unresponsive to light;
• when the eye surface is touched, there is no blinking (corneal reflex);
• no eye movement when the head is moved (oculocephalic reflex);
• no eye movement when ice is poured into the ear (oculo-vestibular reflex);
• no cough or gag reflex;
• complete apnoea when the ventilator is disconnected from the person;
• no brain activity when an electroencephalogram test is conducted.

With all that morbidity in this piece, the only thing left to say is we hope that you live long and prosper.

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