Brain death at centre of legal, moral struggle
ORTHODOX FAMILY SEEKS TO KEEP SON ON LIFE SUPPORT
Doctors say Shalom Ouanounou is brain-dead, and has been for over a month after suffering a cardiac arrest.
His family, devout orthodox Jews who do not believe that neurological demise equals death, insist the 25-year-old is still alive.
On Wednesday, the Toronto residents launched an unprecedented court case against a hospital, doctors and coroners that could overturn the way end of life is handled in Canada.
Citing the Charter of Rights and Freedoms, they are pressing for an exemption from the brain-death declaration for patients whose religion does not accept the concept.
That would mean keeping Shalom on life support until his heart stops permanently, and the coroner’s office tearing up the death certificate it issued.
Father Maxime Ouanounou said his son had made his own views on the issue clear long before he got sick.
“Shalom’s belief is that discontinuing life support in these circumstances is murder and therefore contrary to his fundamental belief in the sanctity of human life,” the parent said in an affidavit filed in court. “Anything less than continuing Shalom’s life support is a failure to accommodate his lifelong, firmly held religious beliefs.”
An overflow crowd of more than 100 Orthodox supporters of the family packed a Toronto courtroom Wednesday for an emergency hearing in the case, with 100 or more filling the hallway outside. Some audience members estimated the total at closer to 1,000.
With four security guards and Toronto police officers keeping watch, they cheered and applauded repeatedly as Justice Glenn Hainey issued a temporary injunction preventing Humber River Hospital from taking Ouanounou off life support while the case is ongoing.
Doctors had been planning to disconnect him from the ventilator that keeps him breathing — and by extension his heart beating — on Thursday. Under the order, hospital staff are also obliged to try cardio-pulmonary resuscitation if Ouanounou’s heart stops.
Lawyers for the hospital in northwest Toronto and the doctors treating the young man said they were not authorized to comment on the case. But a spokeswoman for the Canadian Critical Care Society reacted with dismay at what she described as a “cascade” of recent cases calling brain death into question.
A family in Brampton, Ont., is in court challenging the judgment of doctors that overdose victim Taquisha McKitty, 27, is neurologically dead.
Many people have a fundamental misunderstanding of what the condition means, said Dr. Alison Fox-Robichaud, a critical-care medicine professor at Hamilton’s McMaster University.
Brain-dead patients can breathe and circulate blood only because a machine is pumping air into their lungs, which in turn keeps the heart beating, she noted.
“It’s not a trivial concern — if the brain is not functioning how can they be alive?” she said.
Requiring doctors to continue treating such patients is a strain on resources already at the limits of capacity, and on doctors and nurses themselves, said FoxRobichaud.
“I have ethical concerns about maintaining a dead body when that is incredibly expensive,” she said. “Can you imagine if your 20-yearold son is in a car accident … and there is no ICU bed available because the court has demanded we continue to breathe for somebody who has been dead for two weeks?”
But Hugh Scher, one of the Ouanounous’ lawyers, said the kind of legal change he is requesting is not something “out of left field.”
Laws allowing loved ones to demand continued treatment of the brain-dead for religious reasons already exist south of the border in New Jersey, New York state, California and Illinois, he said.
And it does not matter that there is a difference of opinion on the issue among Jewish leaders and scholars; what is important under human-rights law is an individual’s convictions, Scher said.
“We do many things in our multicultural society to reflect the firmly held beliefs of all members,” added lawyer Mark Handelman, also representing the family. “Now you have a person at his most vulnerable moments. Why is that different than any other accommodation?”
Shalom, a door and window installer who was studying business at a community college, suffered a severe asthma attack, had a cardiac arrest and was declared brain-dead Sept. 30.
At the hearing Wednesday, lawyers for the doctors and the hospital consented to the temporary injunction keeping him on life support, with issues at the heart of the case to be argued later.
A number of organizations are applying for intervener status, including the Jewish human rights group B’nai Brith, an association for Toronto’s orthodox rabbis and the Euthanasia Prevention Coalition.
Rochelle Travis, a nurse practitioner herself, was among the throng supporting the family.
“A doctor can’t decide to end a person’s life; God decides that,” she said. “I think it’s frightening that they can make this kind of decision.”
Physicians once considered death to be only the point where a person’s heart has permanently stopped beating.
But the concept of brain death — where most or all neurological functions has ended — became widely accepted in the 1970s as ventilators were able to keep heart and lungs going even when the brain had shut down.
Most organs taken from deceased patients for transplant come from people deemed brain-dead.