One of the many things the law has taught us is that when things appear to have a simple definition in common parlance, those easily agreed upon definitions don’t always lend themselves easily to a legal dispute. Take for instance the definition of “death,” or more particularly whether someone has died. This definition was recently subject to a hearing before the Court of Appeal for Ontario.
The issue before the courts was clouded in tragedy. The appellant was found unconscious on a sidewalk in Brampton. She was taken to a hospital and placed on a ventilator due to suffering brand damage due to a period of lack of oxygen to the brain. Ultimately, she became unable to breath without the use of a ventilator. A doctor at the hospital conducted tests on her brain functioning and determined she met the neurological criteria for death. A death certificate was completed the next day, on September 21, 2017.
That same day, the appellant’s parents, who were acting has her substitute decision-makers, sought an interlocutory injunction to prevent the ventilator from being removed. They applied to have the death certificate rescinded. The family argued that their religious beliefs, which are protected by the Canadian Charter of Rights and Freedoms, had not been taken into account when determining that the appellant had died and that life support should be removed.
Unfortunately, the issue as it applies to this case is moot since the appellant later died. However, the court was still left to try to resolve the issue due to its potential importance in future cases.
The trial judge dismissed the family’s application on the basis that the appellant is not a bearer of Charter rights, and furthermore, that the respondent (a doctor) was a private party, not acting as an agent of the government, and therefore not subject to the Charter. It was only after this decision was made that the appellant passed away. Both parties to the original application requested appeal. The court agreed due to the likelihood that such as question would arise again.
Not enough information
Unfortunately, the court concluded it did not have enough information to issue a ruling on the matter. The court claimed it did not have enough evidence on what the duties and obligations of doctors were. Nor did the court have any information on the religious beliefs of the woman who died, rather just her family’s religious beliefs. While the court determined that the common law definition of death, being a cessation of neurological activity, was acceptable, it did not close off the opportunity for that definition to be challenged in the future. Additionally, the court held that the woman did not lose her charter rights despite being found to be clinically dead.
While the case did not bring closure, it does open the door for a further examination of what it means to be found dead. This can be especially important in matters regarding Power of Attorney for personal care where mixed views on death and religion could create complications for those responsible for the healthcare decisions of an incapacitated person.
At Derfel Estate Law, our Toronto estate lawyers can help you protect the financial, health, and personal interests of your loved ones. We provide strategic and compassionate advice and will take the time to thoroughly understand your specific concerns and desired outcome, and will act accordingly, while making sure all relevant parties are protected throughout the process. Call us at 1-844-2-DERFEL or contact us online to schedule a consultation.