November 9, 2017 1:03 pm

Defining death: brain death cases raise questions about legal definition

Otto Warmbier's death was due to an unknown injury that occurred more than a year before his death, according to Hamilton County Coroner's Office investigator John Hatfield and a coroner's report dated Sept. 11.

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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.

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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.

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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.

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“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.

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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.

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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.”

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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.”

© 2017 The Canadian Press

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