Ontario court’s decision in McKitty vs. Hayani
In McKitty vs. Hayani the Ontario Superior Court of Justice was asked to determine whether Taquisha McKitty, who was declared dead by neurologic criteria on September 20, 2017, was in fact dead. McKitty’s family argued she was alive and requested an order that she be kept on mechanical ventilation until her heart stopped beating. McKitty’s family sought to rely on sections 2(a), 7 and 25 of the Canadian Charter of Rights and Freedoms, and Part I of the Constitution Act, 1982, in arguing it was McKitty’s religious belief that she remained alive so long as her heart is beating.
Reliance on this religiously founded definition of death, however, challenges the criteria for the definition of brain death frequently applied by physicians in hospitals across Canada. Under Ontario legislation, death is not defined, rather it is determined by physicians in accordance with accepted medical practice.
The court observed there is no legislation in Canada that defines death as the cessation of cardio-respiratory function, nor is there any legislation requiring “physicians to consider an individual’s views, wishes or religious beliefs as factors to be considered in the determination of death.”
Ultimately, based on a review of existing jurisprudence and Canadian legislation, the court held that “it falls to the medical profession to establish the medical guidelines or practice to determine death” and that the Canadian Medical Association Journal (CMAJ) guidelines provide suitable criteria to be followed by physicians in diagnosing death.
The court emphasized its jurisdictional limitations, stating “… it is not the role of this court to engage in a social policy analysis that engages significant bioethical and philosophical considerations regarding the recognition of physiological functioning of the body as life.” Nevertheless, it highlighted some of the emergent policy issues best handled by the government given medical technology’s ability to maintain a body indefinitely post brain death, including:
- Financial strain on the health care system if biologically or physiologically functioning bodies were to be maintained on life support at the request of families.
- The allocation of finite medical resources, including life support technology and staff.
- The conceivable adverse impact on Canada’s organ donation system.
- Where to draw the line on what, and the extent to which, medical services, treatments and medical interventions are provided to brain dead individuals on life support.
Turning to the Charter arguments, the court first addressed the preliminary issue of whether the Charter confers personhood upon someone declared brain dead. It held that, as McKitty was brain dead, not only was she unable to exercise any of the Charter rights and freedoms, but “she is not a person and it would be incorrect to interpret … the Charter as conferring legal personhood upon [her].”
Pursuant to s. 32 of the Charter, only in certain limited circumstances can doctors be subject to Charter scrutiny, namely where they are acting as an agent of the government. Hence, in determining whether the Charter applied to Dr. Hayani, the court considered whether he was fulfilling a government function or performing his medical duty in declaring McKitty dead. A distinction was drawn between the determination of death and the registration of death (the former being a medical role involving diagnosis, and the latter being a government function). As such, it was held that the Charter did not apply to Dr. Hayani under the circumstances.
As to whether the definition of neurologic death conflicted with Charter values, particularly the freedom of religion, the court held that this definition “… does not inhibit or prevent persons from holding the belief that death occurs when the heart stops beating.”
The court elaborated that even if there were a degree of conflict, primacy should be given to “a uniform definition, based on medical and secular criteria” in the interest of clarity, certainty and predictability. These features would have the added benefit of providing much needed certainty to families and individuals during turbulent times involving the loss of a loved one.
Simply put, the McKitty decision upheld the neurologic definition of death widely used by medical practitioners across Canada, and accordingly, found the withdrawal of treatment did not amount to a human rights violation on the basis that a deceased individual did not have legal personhood to assert human rights. The applicants have filed an appeal from the Ontario Court’s ruling.