Appeal court to issue ruling in Ontario family’s brain death legal battle

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The Ontario Court of Appeal has elected to issue a decision for a case that challenges the legal definition of death – though the central figure in that case, a woman on life support whose parents challenged her diagnosis of brain death in a Brampton hospital, succumbed to cardiac arrest in late December.

Taquisha McKitty was 27 years old when she overdosed on a potent cocktail of drugs; six days later, at Brampton Civic Hospital, doctors declared her brain dead. But Ms. McKitty’s Christian parents believed that as long as their daughter’s heart was beating, even with medical assistance, she was still alive.

The two perspectives proved irreconcilable, and a legal battle was launched between physician and family over what constitutes death, and who decides when that line has been crossed. There is no clear legislative answer to those questions across much of Canada – they pit science versus faith, prompt examinations of Charter rights and challenge the role of cultural practices in modern medicine. Most Canadian provinces and territories lack a statutory definition of death. The determination is left up to physicians, based on either a stopped heart or a deceased brain. The idea of brain death can be incongruous with the beliefs of some Christians, Muslims, Orthodox Jews and other groups. As such, several families worldwide have taken their medical providers to court over similar brain-death cases.

Ms. McKitty was sustained on ventilator life support for more than 15 months while her case made its way through Ontario courts. Her family kept watch by her side round-the-clock. Arguments were made before the appeal court, after a loss at Superior Court, just weeks before her heart stopped beating around 2 a.m. on Dec. 31. Her family subsequently conceded that Ms. McKitty’s life was over.

The question, then, became whether the legal case was moot.

Both sides agreed, said Hugh Scher, who represents Ms. McKitty’s family: They still wanted a ruling. Senior legal officer Falguni Debnath wrote last Thursday to Mr. Scher and Erica Baron, the lawyer representing the physician who made the death declaration, saying the court would “address the merits of the appeal.” When a decision will be issued is up to the judge, court staff told The Globe and Mail.

Ms. Baron declined to comment on the case Monday, citing the matter still being before the courts.

“It is of critical importance for the court to determine the question of the accommodation of religious beliefs as part of the legal process to determine and certify death,” Mr. Scher wrote in an e-mail about the decision. “The law provides little or no guidance on the point to date. Also important is the process by which such disputes are to be resolved in the future.” He floated the possibility of the Supreme Court of Canada weighing in, depending on the result and whether either party wanted to seek leave.

But Ms. McKitty’s father, Stanley Stewart, says this decision may be the end of the road for him. He’s been trying to keep himself busy since his daughter’s heart stopped, keeping his mind off what happened. Mr. Scher distributed a statement on his behalf, saying the complexity and expense of the legal process was out of reach for most families; and for them, it had been “unbearably difficult.”

In a Monday phone call with The Globe, he said he was happy to hear through Mr. Scher that the appeal court would rule on his daughter’s case. There are several important issues there to address, he believes. But he’s inclined to accept the court’s conclusion, whichever way it goes.

“There’s not much more we can do about it. I don’t want to keep beating the horse,” he said.

“Whatever the Court of Appeal decides, I think that’ll be the final word on it.”