Ontario judge rejects family’s request to keep daughter on life support 

An undated photograph of Taquisha McKitty.
An undated photograph of Taquisha McKitty. GoFundMe

A judge has dismissed a family’s request to keep their daughter on life support after she was declared clinically brain dead last year, ruling that individual values cannot interfere with medical findings.

Taquisha McKitty‘s parents had argued their daughter’s Christian faith defines death as the cessation of the heartbeat, and that doctors should have to take people’s beliefs into account before declaring them dead.

Doctors had ruled 27-year-old McKitty “dead by neurological criteria” on Sept. 20, 2017, one week after she was found unconscious on a Brampton, Ont. sidewalk, suffering from a drug overdose.

READ MORE: Ontario woman declared brain dead won’t be videotaped to assess movements: court

Ontario Superior Court Justice Lucille Shaw ruled against the family in a written decision issued Tuesday.

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“The medical determination of death cannot be subject to an individual’s values and beliefs,” Shaw wrote. “Death … is a finding of fact. To import subjectivity to the definition of death would result in a lack of objectivity, certainty and clarity.”

A lawyer for McKitty’s family said the ruling left the determination of death solely to doctors, without any oversight or consideration of the Charter of Right and Freedoms.

READ MORE: Family of woman declared brain dead asks court for more time to conduct tests

“Such practices could lead to significant risks of abuse to vulnerable Canadians, particularly those who may be in minimally conscious states … or who may be misdiagnosed,” Hugh Scher said.

But lawyers for Dr. Omar Hayani, the hospital physician treating McKitty who was named as a respondent in the family’s legal action, welcomed the ruling.

“Justice Shaw’s careful analysis and decision provides clarity to families and health care providers on the legal definition of death which includes brain death,” attorney Erica Baron said.

There is no legal definition of death in Ontario, but Hayani had argued that doctors generally operate on the principle that a person is dead if either their heart or their brain stops functioning. Previous court cases across Canada, the U.S. and the U.K. have affirmed that principle, Shaw said, adding that she saw no reason to contradict generally accepted medical practice in this case.

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McKitty’s parents had asked the court for a declaration that their daughter is alive according to her Christian faith, and an order that the Consent And Capacity Board — an administrative tribunal that hears disputes over patients’ ability to understand and make decisions about medical care — has jurisdiction to rule on any disputes regarding her treatment and determination of death.

The family also argued that McKitty’s religious rights under Canada’s Charter of Rights and Freedoms had been infringed.

Shaw ruled against the family on each count.

READ MORE: Judge rules U.S. doctor not impartial enough to testify in case of Ontario woman on life support

Forcing doctors to keep patients on ventilation until their heart has stopped, as per McKitty’s religious beliefs, could have “significant financial impact” on the health-care system, Shaw said.

“There could … be an indirect impact on those who require medical services or treatment if staffing and medical resources are required to maintain those who believe that a biologically functioning body is life,” she added.

Shaw also questioned how far doctors would have to go to keep a person’s body working after their brain had stopped working.

“If Ms. McKitty’s kidney function fails, will dialysis be required? Should she be treated with antibiotics to fight infection?” Shaw asked in her decision.

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Shaw decided the Charter of Rights and Freedoms does not apply to McKitty, because the document only protects “persons” and McKitty, because she is clinically brain dead, is not legally a “person.”

The judge determined that, for similar reasons, McKitty’s case does not fall under the jurisdiction of the Consent and Capacity Board, which only rules on living patients.

READ MORE: Family of Toronto man declared brain dead says finding goes against his religion

Shaw said in her decision that it is not the role of the court to engage in “social policy analysis that engages bioethical and philosophical considerations.” Ultimately, it is up to the government to make choices about the definition of life and death and resulting medical protocol, she said.

“Unlike the court, legislatures are better able to determine questions with many diverse input factors that affect a variety of constituencies in the decision-making process,” she said.

McKitty’s family has 30 days to appeal. An injunction keeping her on life support will remain in place until that period expires, Shaw said.

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