We’ve previously blogged 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.

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

The decision is ground-breaking in that the court ruled on the criteria that is used by physicians in every hospital in Ontario and across Canada to determine brain death. The case also discussed important Charter and other issues of fundamental rights.

The Definition of Death in Ontario

The Statutory Definition of Death

Justice Lucille Shaw noted that unlike several other Canadian jurisdictions (Prince Edward Island, Nova Scotia, Manitoba, and the Northwest Territories), Ontario currently does not statutorily define death.

Instead, the determination of death is left to physicians in accordance with the neurological criteria laid out in the CMAJ Guidelines. Those guidelines essentially provide that brain death is declared, following clinical testing, when there is a lack of capacity for consciousness, brain stem reflexes, and the capacity to breathe.

Justice Shaw pointed out that doctors have significant discretion in determining death: there is no legislation that defines the medical criteria or the practice to be used in order to do so. Moreover, 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 Common Law Definition of Death

Justice Shaw went on to summarize caselaw addressing death from various parts of the world, including Canada, the U.K., and the U.S., noting that:

  • Courts have made findings of death where cardiorespiratory function has been maintained by mechanical ventilation;
  • Courts have accepted brain death as death;
  • Due to scientific and medical advancements, the definition of death has evolved from reliance on cardio-respiratory failure only;
  • The medical community has the responsibility of determining the criteria or guidelines for establishing brain death;
  • There has been no decision in any jurisdiction where a court has found that an individual’s views, wishes, and/or beliefs must be taken into consideration when making a determination about death;
  • There has been no decision in any jurisdiction where a court has found that a body which is brain dead but which may be physiologically and biologically functioning is alive.

Justice Shaw went on to find:

There is no basis for this court to deviate from the recognition in the jurisprudence and legislation from other jurisdictions that the medical and legal definition of death includes brain death. Furthermore, the medical determination of death cannot be subject to an individual’s values and beliefs.  Death, as in the diagnosis of any other medical condition, is a finding of fact.  To import subjectivity to the definition of death would result in a lack of objectivity, certainty and clarity.  Such subjectivity could lead to an unacceptable level of medical, legal and societal uncertainty as well as potential adverse impacts on the health care and organ donation system. [emphasis added]

Justice Shaw also added that the CMAJ Guidelines are used in all hospitals in the province and throughout Canada and have been endorsed by numerous medical associations nation-wide. Moreover, Canada is considered a leader internationally for having a set of guidelines that are uniformly applied throughout the country.

There is no basis for find that the CMAJ Guidelines are not the appropriate means by which neurologic death is to be determined by physicians in Ontario. Physiological and biological criteria should not be considered.

Justice Shaw concluded:

I find, 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.

Does McKitty Meet These Criteria?

Justice Shaw reviewed the evidence presented by numerous experts about McKitty’s observed movements since she was declared brain dead, noting that if the movements were not spinal cord reflexes then they must be the result of brain activity or function, meaning that the woman was not brain dead.

On this matter Justice Shaw concluded:

While the expert opinions differ with respect to the nature of Ms. McKitty’s movements, the one consistency is that each expert agrees that the test results do strongly suggest that the movements originate in the spinal cord and not the brain.  Based on the totality of the medical evidence, including the results of the tests performed as part of the CMAJ Guidelines and the ancillary tests, I find that Ms. McKitty is brain dead despite the movements of her body.

Charter Issues

Does the Charter Apply?

McKitty’s family argued that even if there had been a finding of death based on neurological criteria, McKitty’s religious beliefs should be accommodated so that she could not be legally declared dead until her heart stopped beating. To do otherwise would be a Charter violation, namely a violation of McKitty’s religious freedom.

Justice Shaw noted that before an analysis of whether the legal definition of death (which includes brain death) violates McKitty’s Charter rights could be undertaken, she first had to address whether the Charter even applied in this case.

Justice Shaw noted that McKitty had been declared brain dead. Therefore, a critical legal issue was whether she is a “person” to whom the Charter (which applies only to legal persons) applies. If so, then McKitty would be entitled to all Charter rights and freedoms. Justice Shaw ultimately went on to find:

As Ms. McKitty is brain dead, she is not a person and it would be incorrect to interpret the provisions of the Charter as conferring legal personhood upon Ms. McKitty.

Notably, Justice Shaw also determined that, for the same reasons, McKitty’s case does not fall under the jurisdiction of the Consent and Capacity Board, which only makes decisions involving living patients.

Is the Common Law Definition of Death Consistent with the Charter?

McKitty’s family argued that even if the Charter did not apply in this case, the common law should nevertheless be interpreted and applied in a manner consistent with Charter values.

Justice Shaw noted that this was the first time that the court was being asked to consider the values underlying the common law definition of death. On this she found that:

the values that underlie the common law is a definition of death that provides predictability, objectivity, and certainty for those who provide medical services but also for patients and family members.

Justice Shaw went on to say that:

A uniform definition, based on medical and secular criteria, avoids favouring one religion over another.  If Ms. McKitty’s Christian religious beliefs must be accommodated to comply with Charter values, so too must all religious beliefs regarding the determination of death.  That would lead to a lack of certainty and predictability in the provision of medical treatment following a declaration of death in accordance with the CMAJ Guidelines.  Physicians would be required to determine if the individual had any religious belief that would necessitate ongoing mechanical support of the body.  That could lead to the potential for disputes among family members regarding interpretation of their loved one’s religious beliefs and/or disputes regarding the type, extent, and duration of medical services to be provided.

Moreover:

Families of persons declared brain dead also need certainty and predictability in the determination of death, particularly during times of emotional distress and trauma. A clear, uniform and objective definition of death will provide clarity and certainty to families.

Based on this and several other reasons, Justice Shaw ultimately found that the common law definition of death, which includes brain death, is consistent with Charter values.

The Appeal

Pursuant to the Superior Court decision, McKitty was supposed to have been taken off life support on July 26. However, on the eve of this deadline, her family filed an appeal of Justice Shaw’s decision.

McKitty’s father told CBC News that the family is disappointed in the decision and believes that it ignores McKitty’s “ongoing biological functions” including the ability to shed tears, heal from injuries, and her strong heartbeat. He noted that “as far as our family’s concerned, she’s never stopped being alive.”

The Notice of Appeal states that: “the Court failed to recognize Taquisha’s individual wishes, values and beliefs as relevant to the decision to stop all life sustaining treatment” and calls for the court to rescind McKitty’s death certificate until her heart stops beating.  The appeal also states that Justice Shaw erred by:

  • “applying a legal definition of death that fails to conform with a biological definition of death”;
  • Not permitting independent experts to videotape or assess McKitty’s movements which “differ in nature, quality and duration from spinal cord reflexes”;
  • Not recognizing that McKitty’s Charter rights were breached in order to pronounce her dead and that “the Court’s predetermination of Taquisha’s death to justify non-application of the Charter of Rights and Freedoms … dehumaniz(es) Taquisha as a non-person from the outset”;

McKitty remains on life support in the interim.

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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