When, and by what definition or criteria, are we legally deceased? Dying is a process but at what point is the process over? Is it unreasonable to expect a common understanding and definition in medicine and law? Currently, it appears to depend on the trigger for determining death, which may differ depending on where you are located. Some refer to this as a postal code definition of death.

The standard could be when the heart stops beating. What if the standard is brain death? Which standard is more appropriate? How much time is required following the triggering event? It appears to vary by jurisdiction and hospital policy. It apparently can range from just seventy-five seconds to ten minutes.

The issues are critically important. They affect when organs can be donated to save or improve other lives. They impact decisions on continuing life support services. Who then can provide the answers?

Taquisha McKitty

We’ve previously written about the ongoing battle by an Ontario family seeking to keep their daughter, who has been in a coma since September 2017, on life support. The family argues that 27-year old Taquisha McKitty continues to show signs of life and that, based on her Christian fundamentalist beliefs, she is alive as long as her heart continues to beat. They argued that doctors should have taken McKitty’s religious beliefs into consideration before declaring her dead, rather than simply using a medical definition of death after she became brain dead.

Trail Decision in McKitty v. Hayani

However, in a decision released in late June of 2019, the Ontario Superior Court of Justice (ONSC) found that McKitty was legally dead and ordered her removal from life support within 30 days.

The decision is groundbreaking in that the court defined death. The decision reviewed the criteria and legislation used by physicians in Ontario and across Canada to determine the fact of death. There is no statutory definition of death in Ontario. The dispute boiled down to which definition of death does the common law accept: when a person is neurologically non-functioning (brain dead) or when the person’s heart stops beating? Here, there clearly was brain death but Ms. McKitty was still breathing due to mechanical support. Her family’s position was that whatever the medical definition of death, the health care providers must enquire about the patient’s religious beliefs and accommodate them even where they conflict with the medical definition. After the review the court stated:

  • The three provinces and one territory which define death do so as including brain death or loss of brain function;
  • In all provinces, even where death is not defined, legislation states that death is determined by doctors in accordance with generally accepted medical criteria or practice;
  • There is no legislation in any province that defines the medical criteria or practice that is to be used by physicians to determine death;
  • There is no legislation in Canada that defines death as the cessation of cardiorespiratory function;
  • 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;
  • The accepted medical practice used by all physicians in not only Ontario but throughout Canada to determine death based on neurologic criteria is set out in guidelines that were published in the Canadian Medical Association Journal in 2006 (the “CMAJ Guidelines”).

The following can be concluded from a review of the jurisprudence regarding the definition of death:

  • Courts have made findings of death in cases where the cardiorespiratory function has been maintained by mechanical ventilation;
  • Courts have accepted brain death as death;
  • This definition of death has evolved from a traditional reliance on cardiorespiratory failure as a result of scientific and medical advancements;
  • It is left to the medical community to determine the criteria or guidelines to establish brain death;
  • There is no decision where the court has found that an individual’s views, wishes and beliefs must be considered as part of the determination of death;
  • There is no decision where the court has found that a body that may be physiologically and biologically functioning, in the presence of brain death, is alive.

The Court of Appeal

The matter was appealed to the Ontario Court of Appeal (ONCA) but was unsuccessful. The court upheld the common law definition of death to be that a person is considered dead where there is either the irreversible cessation of cardiorespiratory function or the irreversible cessation of all brain function.

It stands to reason, therefore, that at common law, death includes brain death and brain death is to be determined based on medical criteria as set out in the CMAJ Guidelines.  It is important that the law keeps up with technological and medical advancements which, in turn, is consistent with permitting the medical community to establish the practice or guidelines to determine brain death.  

We will continue to follow any further developments in this case, and in others involving legal challenges to end of life decision making and will provide updates as they become available. At Wise Health Law, we are passionate about helping health professionals and healthcare organizations understand and protect their legal rights. Our lawyers have significant trial and appellate experience and will skillfully represent clients whenever litigation is required. Contact us online, or at 416-915-4234 for a consultation.


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