Ontario judge refuses family's appeal to keep brain dead woman on life-support

An Ontario court has rejected a Toronto area family’s plea to keep their 27-year-old daughter, who has been declared brain dead, on life-support.

Taquisha McKitty’s parents were seeking an order to keep her on a mechanical ventilator, arguing she continues to show signs of life and that her Christian fundamentalist beliefs say she’s alive as long as her heart’s still beating. However, the  Ontario Superior Court of Justice ruled Tuesday, in a complex and potentially precedent-setting decision, that McKitty can be considered dead and can be removed from life-support.

McKitty’s family is set to hold an afternoon news conference to discuss what they’ll do next. The court’s decision states McKitty will be kept on life-support for up to 30 days in case the family wants to appeal the decision.

Unlike four other Canadian provinces, including Manitoba and Nova Scotia, Ontario does not have a statutory definition of death, the court decision notes. Instead, death in Canada is determined by physicians in accordance with accepted medical practice.

“There is no legislation that requires physicians to consider an individual’s views, wishes or religious beliefs as factors to be considered in the determination of death,” the judge, Lucille Shaw, wrote in her decision.

Shaw’s decision notes doctors found “uncontroverted medical evidence” that there’s no bloodflow to McKitty’s brain and that it will not be able to recover.

Hugh Scher, the lawyer representing McKitty as well as an Orthodox Jewish family in a similar case, issued a statement criticizing the judge’s decision. “It leaves the determination of death exclusively to doctors without any means of oversight or consideration of the protections or values of the Canadian Charter,” he said. 

In intensive care for nearly a year

McKitty, who has a young daughter, has been on life-support since last September, when she went into cardiac arrest following a drug overdose in Brampton, Ont. She was declared neurologically dead by doctors shortly after.

Hugh Scher, the lawyer representing McKitty and her family, has argued the 27-year-old, pictured here with her daughter, should be treated like someone with a ‘severe neurological impairment.’ (Instagram)

To her family, though, McKitty was, and remains, very much alive.

Stanley Stewart, her father, told CBC Toronto in late September that his daughter showed signs of life every day, including squeezing family members’ hands and shedding tears.

Fearful that the hospital was trying to pull the plug to secure an organ donation, the McKitty family launched legal proceedings to keep her hooked up to life-support and an injunction was granted. 

That has resulted in McKitty being kept in the intensive care unit at Brampton Civic Hospital for nearly a year. A doctor declared her dead on Sept. 20, 2017, and completed a death certificate on Sept. 21, certifying that she had died from a drug overdose.

2nd case also before the courts

The McKitty case bears striking similarities to another Toronto-area case still awaiting a decision.

Shalom Ouanounou, a 25-year-old devout Orthodox Jewish man, was declared brain dead just days after McKitty following a severe asthma attack.

Ouanounou’s family sought an injunction arguing that he should be kept on life-support indefinitely at Toronto’s Humber River Hospital on the grounds of his belief in a Jewish law that stipulates death is when the heart stops beating.

In March, Ouanounou died in hospital despite being on life-support.

“Shalom’s heart stopped, and he stopped breathing … which is the definition of death under Jewish law and under Canadian law in most instances,” said Scher.

Despite Ouanounou’s death, Justice Glenn Hainey of the Ontario Superior Court is still reviewing the family’s legal arguments. It’s unclear how Tuesday’s ruling will affect Hainey’s decision.    

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