The family of a Toronto-area woman who was declared brain dead more than a month ago has lost its bid to record her movements as part of an ongoing legal challenge meant to keep her on life-support.
Relatives of Taquisha McKitty, 27, had asked a court for permission to film her for 72 hours, arguing it would better allow doctors to determine whether her movements were spinal reflexes or something more.
In a decision released Tuesday, Ontario Superior Court Justice Lucille Shaw said there was no scientific or medical evidence to support the argument that such a test would be helpful.
READ MORE: Family of woman declared brain dead asks court for more time to conduct tests
She nonetheless granted the family more time to retain an expert who could assess McKitty and report back to the court. An earlier expert hired by the family was disqualified from testifying after Shaw found he could not be impartial because he told the court he does not believe in the concept of brain death.
Court has heard McKitty was admitted to hospital in mid-September after overdosing on drugs and was declared brain dead days later after her condition worsened and she stopped breathing on her own.
Her family obtained an injunction to keep her on a respirator and conduct more medical tests while it contests that decision.
An affidavit from a California neurologist filed this week had said that while test results suggest McKitty’s movements are likely reflexes, videotaping her may help her family accept that conclusion, court documents show.
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But Shaw said in her ruling that does not justify ordering the test.
“While this is a tragic situation, I must consider the evidence that is before me to determine if 72 hours of videotaping, by a number of cameras, would be of any assistance to the court given the results from four physicians who determined that the criteria for (neurological determination of death) had been met and the results of the ancillary tests,” she said.
“I am not satisfied that there is sufficient evidence that videotaping for 72 hours would be of any assistance to the court,” Shaw said.
“There is insufficient evidence to support the position that the observations regarding Taquisha’s movements that have been made by the various doctors who have assessed Taquisha to date are inadequate to address the nature of her movements and whether those are spinal reflexes or reflective of brain function.”
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The doctor who deemed McKitty to be brain dead, Dr. Omar Hayani, previously testified that the movements should not be interpreted as a sign of life.
Two other Toronto-area doctors have submitted affidavits expressing a similar opinion, court documents show.
The California neurologist said in his affidavit that the movements appeared to be complex and could not be described with certainty as being spinal reflexes, but that other tests conducted suggested they likely were, documents show.