We’ve previously blogged about end of life decision making and current Canadian guidelines on brain death. This week, we delve into a lengthy legal battle over whether a 27-year-old woman can be taken off life support. The dispute is expected to come to end this month with a decision that will determine who gets to decide what death is.

What Happened?

The woman at the centre of the dispute has been on life support since September 2017. That month, she was admitted in hospital after going into cardiac arrest following a drug overdose. Initially, physicians used ice to treat the swelling in the woman’s brain and she was breathing on her own and moving (albeit unconsciously).

However, after 72 hours of observation, her condition worsened and she stopped breathing on her own. The woman’s heart continued beating but she remained in a coma. Doctors declared her neurologically dead and a death certificate was issued on September 20.

The Proceedings to Date

Emergency Injunction

The day after the issuance of the death certificate, the family obtained an emergency injunction to keep the woman on a respirator and to conduct more tests while they contested the hospital’s decision. Life support was ordered to remain connected until a decision can be made by the Consent and Capacity Board.

Battle Over Expert Witnesses

In October, the case was adjourned to allow the family time to find a new expert witness. The first expert witness they had sought to rely on was Dr. Byrne, an expert in pediatrics who has written about brain death and testified about brain death in the United States. Dr. Byrne is also the president of Life Guardian Foundation, a Christian organization which disagrees with the concept of brain death. Dr. Byrne told the court that he believes brain death is a “made-up concept” intended to, among other things, facilitate organ collection for donations. Dr Byrne stated that he would never pronounce a patient dead only because their brain ceased functioning, even though brain death was a respected medical opinion and legal standard in the United States.

The judge found that Dr. Byrne lacked understanding of Canadian medical guidelines, which he had never reviewed prior to this case, and also lacked independence on the matter of brain death. The judge told the court: “Dr. Byrne cannot be an independent witness . . . when he opposes the concept of brain death.”

The judge acknowledged that in most cases, when someone is disqualified as an expert, that does not usually give rise to the right for the party intending to rely on that witness to seek another expert. However, the judge went on to note that this case involved “extraordinary circumstances” and adjourned the proceedings to give the woman’s family time to find another expert.

Court Would Not Rely on Video of the Woman

In November, the judge denied the family’s request to allow a 72-hour videotaping of the woman, which they argued would provide evidence that she is alive and would better allow physicians to ascertain whether her movements were spinal reflexes or something else. The judge found that there was no medical or scientific evidence that showed that such an exercise would be helpful.

The Woman’s Religious Beliefs

In December, the woman’s father told the court that he had never had a chance to inform doctors of his daughter’s religious beliefs (the woman attended an Apostolic Pentecostal Church), but acknowledged that he had never raised any objections to brain death based on religious grounds when he initially spoke to the doctors or in a series of affidavits he subsequently filed in his attempts to have his daughter’s death certificate revoked.

The father also told the court that while he did not remember explicitly talking to his daughter about her wishes in the event that she was ever brain dead, he knew that his daughter believed that a person is alive so long as their heart is still beating because that is what he taught her growing up.

The family’s position is that in concluding that the woman is dead, physicians had only applied medical criteria without considering the woman’s express religious beliefs. Such a consideration is fundamental to Canada’s multicultural society and to the respect that Canadian society gives to everybody’s religious beliefs. By failing to inquire about the woman’s beliefs and values before making a decision about brain death, physicians essentially imposed their own values upon her.

What Now?

A decision is expected later this month, which should provide some legal guidance on what constitutes death in Ontario.

Such legal guidance may serve to be helpful in other ongoing matters, including that of the patient we discussed in our previous blog on end of life decision making.

While the woman’s family is hopeful as it awaits a decision, others are raising some concerns. Kerry Bowman, a bioethicist at the University of Toronto points to relevant questions about the allocation of resources. While Bowman concedes that individual lives should not be viewed in “monetary terms”, there needs to be a discussion about the ethics of resource allocation in medicine. This includes a discussion about hundreds of thousands of dollars spent on medical care and intervention (including use of drugs that may be in short supply in the hospital system) on patients who doctors consider to be dead.

We will continue to follow 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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