In cancer care, despite the many and significant advances in science, the matter of death and dying has not become trivial. Legal issues often arise throughout diagnosis and treatment and also as a complication of unresolved emotional or psychiatric complications of the events surrounding the end of life.
The study of the process of dying has been a late development in medicine. In the past, death was considered to be a familiar, fairly irreversible process, mostly held in the privacy of family and those who best knew the patient. It was generally supported by spiritual care, which has had centuries of experience in finding purpose in the passage as well as consolation of patients, family members, significant others, and caretakers who have become attached to those who are dying. In the 20th century, the process of dying and grieving began to be studied as a biological activity.1–3 As therapies were discovered and previously invincible forces such as infection and trauma became easily vanquished, dying became the enemy of health care workers, and hospitals turned into combat zones. The patient’s loved ones were not allowed to interfere with these heroic efforts, and the last moments of life became a lonely fight seen only by the patient and some strangers the patient hardly knew.
Modern research with people near the end of life is complex and unpredictable, requires methodologic flexibility, and is very difficult to negotiate in the constraints of a preapproved ethical regulatory framework. Therefore, it is difficult to define “best practices.”4 It is important to keep in mind that the process of dying and the moment of death will be as unique to each patient as their life was. The care of the patient does not end when the efforts to prolong survival have ended; it needs to continue as long as the patient is alive and even afterward, as will be discussed later in this chapter.
For the sake of clarification of legal issues, the discussion will be separated into (1) the process of dying and (2) the moment of death.
Dying is defined as “approaching death” or “gradually ceasing to be.”5 There is no legal definition for this process. Legal professionals, including attorneys and courts, will fully rely upon health care professionals to define the onset, existence, and termination of the process of dying in the performance of their own duties such as preparation of deeds or wills, execution of estates, and dying confessions or other statements that may relate to civil or criminal procedures. Physicians must be ready to assist in these processes by fulfilling the patient’s needs within the confines of the law.
Overall, the dying process is considered to be the period of time when the body begins to deteriorate in such a way that the probability of recovery ...