Canada: Ontario Court Confirms Intensive Care Of A Brain Dead Patient Can Be Discontinued Despite Family's Objections

Last Updated: July 6 2018
Article by Daphne Jarvis

Most Read Contributor in Canada, December 2018


Two similar but separate court applications have been pending in Ontario — one in Brampton and one in Toronto — in which the court has been asked to decide whether, at the insistence of the patient's substitute decision-maker(s) ("SDM"), a medical team must continue to provide intensive physiologic support (including mechanical ventilation) to a patient, until the time of irreversible cardiac arrest, even where that patient already meets the criteria for a neurological determination of death ("brain death").

We know from the 2013 Supreme Court of Canada decision in the Rasouli case that withdrawal of treatment from a person in an irreversible coma is governed by the Health Care Consent Act in Ontario. This means that the SDM gets to make the decision, but is subject to the overriding scrutiny of the Consent and Capacity Board in those cases where the physicians have grounds to challenge the SDM's decision. That said, being comatose is not the same as being dead.

In recent years, Ontario's Consent and Capacity Board ("CCB") had released three decisions concluding that it had no jurisdiction to hear cases involving brain dead patients because it was not the role of the CCB to question a determination of death made by a physician, and that in Ontario, neurological death is death according to the law. As we reported in a previous bulletin about two of these decisions, the CCB had held that:

Death terminates the person. Thus when death occurs, there is no longer a "person" who is subject to treatment under the Health Care Consent Act [HCCA]. Since section 35 of the HCCA contemplates that an application for directions under that section relates to treatment of a person, where there is no person to treat, neither the substitute decision maker nor the attending physician may apply under that section for directions.


While cardiac death typically results in fairly short order following death by neurological criteria due to the role of the brain stem in supporting all body functions, it may take days or weeks leaving the health care team and family in a legal and medical limbo.

Such a circumstance creates a number of concerns for the health practitioners and broader health care team. Continuation of "treatment" for someone declared dead offers, obviously, no medical benefit and there would be no ethical or moral reason to continue.

It has long been the case, therefore, that the law did not require consent to halt medical interventions up to and including mechanical ventilation once the patient has been declared brain dead, even though cardiac death had not yet occurred. Given the tragic circumstances inherent in these sorts of cases, families who were having difficulty accepting the fact of their loved one's death would usually be provided with one or two days' grace before the mechanical ventilation was halted.

In the fall of 2017, however, two separate court applications were launched with the purpose of preventing the withdrawal of any of the intensive interventions being provided to young patients who had been declared dead according to the neurological criteria for death. In both cases, it was argued by the patients' SDMs that the Canadian Charter of Rights and Freedoms protected one's religious freedom to be exempted from a definition of death which was contrary to one's religious beliefs about death. It was argued, therefore, that any disputes around continued interventions were "treatment decisions" which could be dealt with in the same way that the CCB deals with other end-of-life disputes between physicians and SDMs.

Background: McKitty v. Hayani

The patient, 27 year-old Tacquisha McKitty, was admitted on September 17, 2017, to the intensive care unit of William Osler Health Centre, having suffered a brain injury secondary to a drug overdose. In spite of best medical efforts, by September 20 it was clear from repeated testing that she was brain dead. The death certificate was completed on September 21, and on that same day, Justice Shaw granted an interlocutory injunction, on consent, preventing the discontinuation of "life support" pending further evidence, including expert evidence, oral and written legal submissions, and her final decision.

Initially, Ms. McKitty's family took the position that she could not possibly be dead as there was still some bodily movement, but subsequent expert evidence was clear that these were merely spinal reflexes. Over time, the family's position expanded from a simple disbelief that she was dead, to a constitutional challenge to the declaration of death based on neurological criteria, as a violation of Ms. McKitty's right to religious freedom to reject such criteria for herself. It was asserted that she was a Christian who believed that life ends only when the heart stops beating, as that is when the soul leaves the body.

Justice Shaw's Decision and Analysis

Justice Shaw's decision supports the physicians' findings of death, and the lawfulness of removing the mechanical ventilation without the need for consent to do so.

In coming to her decision, Justice Shaw engaged in a thorough and well-reasoned analysis of the expert evidence, as well as the applicable jurisprudence in Canada, the UK and the United States. This indicated that the question about when death occurs is one of fact, and that the criteria to be used are medical standards. There is no statute nor any jurisprudence where a court has found that an individual's views, wishes and beliefs must be considered as part of the determination of death.

It was confirmed that Ms. McKitty meets the neurologic definition of death.

Justice Shaw acknowledged that many of Ms. McKitty's organs are physiologically functioning and that her heart is beating. She is being provided with nutrients and hydration which is being absorbed by her body, and waste products are being excreted through her bowel and kidney functions. She does not have capacity to breathe of her own volition, and her respiratory system is being maintained artificially through mechanical ventilation. The issue, in her view, was whether or not this biological and physiological functioning of the body constitutes life even when there is an absence of brainstem function, consciousness, and the ability to breathe.

The accepted medical practice used by all physicians throughout Canada to determine death based on neurologic criteria is set out in guidelines that were published in the Canadian Medical Association Journal in 2006 ("CMAJ Guidelines"). The CMAJ Guidelines are used in all hospitals in Ontario and throughout Canada and have been endorsed by numerous medical associations across Canada. Brain death is declared when it is found, through clinical testing, that there is a lack of capacity for consciousness, brainstem reflexes, and capacity to breathe. Justice Shaw upheld the findings of the five physicians who had examined Ms. McKitty and found that she meets the criteria for the neurologic determination of death in the CMAJ Guidelines. Based on expert opinion, Justice Shaw found that Ms. McKitty's limb movements,on which her family is very focused, are consistent with spinal reflexes, which are not mediated by any brain activity, and are not inconsistent with the determination of brain death.

It was confirmed that the legal (common law) definition of death is consistent with the Charter.

Justice Shaw found there to be no basis to deviate from the recognition in the jurisprudence and legislation from other jurisdictions that the medical and legal definition of death includes brain death. Furthermore, the medical determination of death cannot be subject to an individual's values and beliefs. At common law, death includes brain death and brain death is to be determined based on medical criteria as set out in the CMAJ Guidelines. Death, as in the diagnosis of any other medical condition, is a finding of fact. To import subjectivity to the definition of death would result in a lack of objectivity, certainty and clarity. Such subjectivity could lead to an unacceptable level of medical, legal and societal uncertainty as well as potential adverse impacts on the health-care and organ donation systems.

In Justice Shaw's view, the applicant was proposing a radical and significant change to the definition of death and, in essence, the concept of life. She asserted that it is not the role of the court to engage in a social policy analysis that engages significant bio-ethical and philosophical considerations regarding the recognition of mere physiological functioning of the body as life.

Justice Shaw also pointed to wider policy issues which would have to be considered which she felt to be beyond the role of the court. For example, given that medical technology can maintain a body for an indefinite period of time after a declaration of brain death, that could have a significant financial impact on the health-care system if the body that is biologically or physiologically functioning must be maintained on mechanical ventilation until such time as the heart stops beating, at the request of an individual or their family on account of their personal values and beliefs. There could also be an indirect impact on others requiring medical services if health-care resources have to be directed to maintaining brain dead persons on the basis of religious belief. She wondered what other medical services beyond mechanical ventilation would have to be extended to maintain that functioning body as other organs failed — antibiotics, renal dialysis, colostomy .... ? She was also concerned about the possible adverse consequences to the organ donation system in Canada.

With respect to the Charter arguments, Justice Shaw, by analogy and relying on the analytical approach applied to the Supreme Court of Canada's consideration of fetal rights in the 1989 Daigle case, finds that brain death extinguishes personhood, and with it, the right to assert Charter protection: "Just as the courts have not engaged in a theological debate on when life begins, so too should the court not become involved in a debate about when life ends." [para 205] Such decisions are appropriately left to the legislature, not to courts.

Furthermore, this was a legal action involving two private litigants, the patient and the ICU physician. The Charter applies only to government action. The determination of death [as distinct from registration of death] is not a government function; it is neither done at the direction of the government nor mandated by statute. It is not governed by statutory authority nor is it an act done in furtherance of a government policy or program. If it was so, the appropriate responding party would be the government and not the ICU physician.

In any event, the common law definition of death does not prevent persons from holding particular beliefs as to when death occurs. At the same time, the common law's definition of death provides predictability, objectivity, and certainty for those who provide medical services, and also for patients and family members. A uniform definition, based on medical and secular criteria, avoids favouring one religion over another. If the patient's religious beliefs must be accommodated to comply with Charter values, this would lead to a lack of certainty and predictability in the provision of medical treatment following a declaration of death in accordance with the CMAJ guidelines. Physicians would be required to determine if the individual had any religious belief that would necessitate ongoing mechanical support of the body. This could lead to disputes among family members regarding interpretation of their loved one's religious beliefs and/or disputes regarding the type, extent, and duration of medical services to be provided. Justice Shaw also expressed concerns around the significant costs to the system to provide medical support for someone whose religious belief is that death only occurs when there is a cessation of cardio or respiratory function.

Justice Shaw also briefly addressed the equality provisions of the Charter, as it was the applicant's submission that Ms. McKitty is a vulnerable, disabled person with a brain injury. Justice Shaw rejected this submission, referring to the uncontroverted medical evidence that there is no blood flow to the brain. She found that McKitty is not brain-injured; she is dead.

It was confirmed that the CCB has no role in these cases concerning disputes about brain death.

Justice Shaw agreed with the previous three decisions of the CCB that it has no jurisdiction in situations where a person has been declared dead. She distinguished this case from the Rasouli case, where that patient still had brainstem function and therefore was not brain dead. Ms. McKitty, however, having been declared brain dead, is not an incapable person for whom consent must be obtained from a substitute decision-maker for the withdrawal of mechanical ventilation, as it is not treatment. The mechanical ventilation is merely maintaining physiological functioning, and is not treatment for a therapeutic or other health-related purpose. A brain that has died cannot be treated and recover. As Ms. McKitty is not a person as defined medically or at law, there are no medical services that could be provided to her that would be considered treatment.

What's next?

Tacquisha McKitty's parents have a 30-day period in which to decide whether to pursue an appeal to Ontario's Court of Appeal.

In the meantime, in the second similar but distinctive case, Ouanounou v. Humber River Hospital et al, Justice Hainey has not yet released a decision, and is in the process of considering whether he still needs to render a decision in light of the case's 'mootness', i.e., the fact that the patient Shalom Ouanounou did experience irreversible cardiac arrest in mid-March 2018, and now also in light of Justice Shaw's clarification of the law in the McKitty case. In the Ouanounou case, with the hospital as an additional respondent to the ICU physicians, there was more direct evidence placed before the court to substantiate the ethical and social concerns expressed by Justice Shaw, and the significant costs to the health-care system should the law be changed.


At this point in time, there is no legal obligation on a medical team in Ontario to maintain physiological support of a brain dead patient at the insistence of the patient's SDM. Usual practices in this regard can continue, which usually do include an empathetic grace period of one or two days before the machines are turned off. Due to the potentially ongoing nature of the both the McKitty and Ouanounou cases in our courts, however, it remains possible that we might yet see a change in the law in the future. Legal consultation is therefore recommended where there are intractable disputes which arise in similar circumstances.

About BLG

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions