The Legal Determination of Death in Ontario

Published on: June 2018 | What's Trending

Legal determination death

The pain and anguish facing a family whose loved on is on life support is unfathomable. Families and medical teams can sometimes disagree when deciding whether to continue or remove life-support.  When such conflicts arise, hospitals and families may turn to the courts to determine the best course of action, as determined by law.

Taquisha McKitty

In a potentially precedent setting Ontario decision, the Honourable Justice Shaw of the Ontario Superior Court of Justice rejected a Toronto area family’s plea to keep their 27-year old daughter on life-support.

The case involved and highlighted the conflict of science, law and religion that arise in situations like this.

Taquisha McKitty had been on life-support since late September 2017 when she went into cardiac arrest in Brampton, Ontario following an apparent drug overdose. She was declared neurologically dead (“brain-dead”) by doctors on September 20, 2017, and a death certificate was completed on September 21, 2017.

The family sought an order to keep her on a mechanical ventilator, arguing that she continued to show signs of life and that her Christian fundamentalist beliefs provide that she is alive so long as her heart is still beating.

Justice Shaw however, ruled that Ms. McKitty can be considered dead and can be removed from life-support.

Unlike some other provinces, Ontario does not have a statutory definition of death. Instead death is determined by physicians in accordance with accepted medical practice.

Of significant impact and import was the statement by Justice Shaw in her ruling that “There is no legislation that requires physicians to consider an individual’s views, wishes or religious beliefs as factors to be considered in the determination of death.”

Justice Shaw’s decision further notes that the doctors found “uncontroverted medical evidence” that there was no blood flow to Ms. McKitty’s brain and that her brain would not be able to recover.

Shalom Ouanounou

Of further significance is the fact that another case currently before the Ontario Court raises many of the same issues as the case involving Ms. McKitty. Shalom Ouanounou, a 25-year old devout Orthodox Jewish man was declared brain dead following a severe asthma attack. His family, like that of Ms. McKitty, argued that Mr. Ouanounou should be kept on life support on the grounds of his belief as an Orthodox Jew that death occurs only when the heart stops beating. Mr. Ouanounou subsequently passed away while on life support, but this matter is currently still before the Court.

With respect to Ms. McKitty, there is no question that she was biologically alive, at least in terms of breathing and a heartbeat and other signs of life. Many doctors however see the issue quite differently arguing that brain death has been a widely accepted medical standard since the late 1960s regarding the determination of death.  This standard appears to have been accepted by Justice Shaw and was one of the guiding principles in her ruling.

Justice Shaw’s decision in Ms. McKitty’s case appears to have the potential to provide significant guidance regarding when a person can be declared legally dead and when a person can be removed from any artificial means of keeping the person biologically alive.

If Justice Shaw’s decision is subsequently upheld and not over-turned or otherwise distinguished by the Court, it would appear that the views, wishes or religious belief of the person and their family, will have little impact on the determination of death, and that determination will be left to the treating doctors on the basis of the medical evidence and accepted medical practice. This may greatly simplify the determination of death by in effect leaving it with the doctors, but will do so at the expense of the wishes, values and religious beliefs of those most directly affected by that determination.

Ms. McKitty’s, as well as Mr. Ouanounou’s, case raises serious questions as to when death occurs in Ontario and in Canada, and will have far-reaching impact with respect to the rights of the person and their family; the right of a hospital to remove a person from life support; and the effect on the Estate of a person, such as when it can be administered and disbursed.  There will no doubt be additional jurisprudence to analyze the intersection of medicine and religion, science, law and faith as it impacts our understanding of these difficult issues.

If you have any questions about this difficult issue, please do not hesitate to contact us.