What’s the mean­ing of death?

Court cases raise ques­tions about le­gal def­i­ni­tion

Kenora Daily Miner and News - - ONTARIO NEWS - PAOLA LORIGGIO

TORONTO — Two On­tario court cases in­volv­ing peo­ple deemed brain dead are rais­ing ques­tions about whether what con­sti­tutes death should be clearly spelled out un­der Cana­dian laws.

The is­sue is at the crux of sep­a­rate le­gal bat­tles to keep 27-year-old Taquisha McKitty of Brampton, Ont., and 25-year-old Shalom Oua­nounou of Toronto on life sup­port. Both cases in­volve re­li­gious ob­jec­tions to the con­cept of brain death.

The lawyer rep­re­sent­ing both fam­i­lies ar­gues the ab­sence of a le­gal def­i­ni­tion of death cre­ates some­what of a grey area, par­tic­u­larly when it comes to is­sues such as re­li­gious ac­com­mo­da­tion.

Only Man­i­toba has leg­is­la­tion that ex­plic­itly de­fines death, which it says takes place “at the time at which ir­re­versible ces­sa­tion of all that per­son’s brain func­tion oc­curs.”

Most other prov­inces and ter­ri­to­ries al­lude to the mat­ter in leg­is­la­tion sur­round­ing or­gan do­na­tion, typ­i­cally by say­ing death will be de­ter­mined ac­cord­ing to ac­cepted med­i­cal prac­tices, with­out spec­i­fy­ing what those are.

But some le­gal and med­i­cal ex­perts say en­shrin­ing the def­i­ni­tion of death in law wouldn’t change much, nor would it nec­es­sar­ily pre­vent fu­ture court chal­lenges.

And im­pos­ing a rigid def­i­ni­tion could cre­ate is­sues down the road, they say.

“A lot of this stuff is not pre­cisely de­fined for the sim­ple rea­son that there are med­i­cal stan­dards and med­i­cal ex­per­tise that in some cases evolve,” said Dr. James Dow­nar, who serves on the board of the Cana­dian Crit­i­cal Care So­ci­ety, an as­so­ci­a­tion rep­re­sent­ing crit­i­cal care physi­cians.

“The fact that some­thing is not de­fined in law does not mean that it doesn’t have le­gal back­ing, as a con­cept. There are many (in­stances in law) where it makes ref­er­ence to ac­cepted med­i­cal stan­dards.”

Hi­lary Young, a law pro­fes­sor at the Univer­sity of New Brunswick, said it’s ex­tremely rare for the na­ture of death to be at the heart of a court case, partly be­cause brain death is widely rec­og­nized.

In Que­bec, the court was called to weigh in on the is­sue in the early 2000s in a case in­volv­ing a fa­tal car crash. The court had to de­cide ex­actly what con­sti­tutes brain death in or­der to fig­ure out whether a woman or her tod­dler had died first, which would then de­ter­mine who would in­herit.

It found that the baby boy had briefly out­lived his mother based on the fact that he was able to breathe au­tonomously for a short time af­ter the crash, which showed some brain stem func­tion, doc­u­ments show.

Cana­dian med­i­cal guide­lines de­fine brain death as the ir­re­versible loss of the ca­pac­ity for con­scious­ness com­bined with the ir­re­versible loss of all brain stem func­tions, in­clud­ing the ca­pac­ity to breathe au­tonomously.

Ce­ment­ing some­thing as fun­da­men­tal as death in law can be tricky, Young said, not­ing that Man­i­toba law­mak­ers were care­ful to en­sure their word­ing would sur­vive any changes in di­ag­nos­tic tools and al­low physi­cians to ex­er­cise some dis­cre­tion, par­tic­u­larly when work­ing out­side of a hospi­tal set­ting.

“My view is that leg­is­la­tion might be help­ful, but I don’t think it would change any­thing, as­sum­ing the stan­dard leg­is­lated was brain death,” she said.

Even al­low­ing for re­li­gious ac­com­mo­da­tion, like the states of New York and New Jersey have done, wouldn’t ac­tu­ally change the def­i­ni­tion of death, she said. It lets pa­tients deemed brain dead stay on a res­pi­ra­tor un­til their heart fails, which “buys the fam­ily a lit­tle time,” she said.

“The ac­com­mo­da­tion is not, ‘you get to de­cide for your­self what death means,’ ” she said. “Even with­out leg­is­la­tion, I ex­pect hos­pi­tals some­times ac­com­mo­date re­li­gious be­lief by al­low­ing the ven­ti­la­tor to re­main on un­til car­diac death oc­curs.”

Oua­nounou’s fam­ily is seek­ing to keep him on a res­pi­ra­tor un­til his heart fails, which is how Ortho­dox Ju­daism de­fines death, their lawyer Hugh Scher has said.

McKitty’s fam­ily, which is Chris­tian, is seek­ing to re­tain a new ex­pert who can as­sess whether her move­ments are spinal re­flexes or some­thing more. An ex­pert pre­vi­ously hired by the fam­ily was dis­qual­i­fied from tes­ti­fy­ing af­ter telling the court he does not be­lieve in brain death.

Both fam­i­lies want their loved one’s death cer­tifi­cate re­voked.

Dow­nar, of the Cana­dian Crit­i­cal Care So­ci­ety, said these le­gal chal­lenges could cre­ate a slip­pery slope in which other es­tab­lished sci­en­tific or med­i­cal facts are ques­tioned and ruled on by the courts.

“What has hap­pened in both of these cases is a gob­s­mack­ing tragedy of mo­men­tous pro­por­tions,” he said. “And for all of that, you can­not di­min­ish or undo the tragedy of what’s hap­pened by re­defin­ing death.”

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