Dead or Alive: A discussion of the constitutionality of brain death

Recently, Ontario courts have been asked to define brain death and comment on whether the concept is constitutional. With the advancement of technology, it has become increasingly difficult to determine when life begins and when it ends. Innovations in medical technology have led to the possibility of keeping the body alive, despite the cessation of all brain activity. In order to adapt to the advancements of science, the medical community has developed two distinct categories of death: cardiovascular death and brain death.

Cardiovascular death is typically categorized by the cessation of the heart beating. When the heart stops beating, tissues are deprived of oxygen, which leads to organ failure and global cellular death.[i] Brain death, on the other hand, is the cessation of all brain activity, including in the brain stem.[ii] Even with the lack of brain activity, the heart can continue to pump with the assistance of a mechanical ventilator, which would allow the tissues and organs to function until irreversible cardiac arrest.

Generally, there are two instances where mechanical ventilation is not immediately withdrawn upon the declaration of brain death: 1) to facilitate organ donation, and 2) when the family is having difficulty accepting the fact that their loved one has passed. In the latter scenario, healthcare facilities will often allow for a grieving period before halting the ventilation.

In Ontario, there have been two recent constitutional challenges initiated as to whether a substitute decision maker (SDM) can require a medical team to continue to provide physiological support when a patient meets the criteria for brain death.[iii] At issue in both McKitty v. Hayani, 2018 ONSC 4015 (McKitty) and Ouanounou v Humber River Hospital et. al, 2018 ONSC 6511 (Ouanounou) was whether the common law definition of brain death was constitutional. More specifically, the courts were asked to determine whether individuals can be exempted from the declaration of brain death based on their religious belief that life only ends when the heart stops beating. It was argued that, as the patients’ hearts were still beating (albeit only with the support of medical intervention), they were still alive. In June 2018 the McKitty decision was released and in November the Ouanounou decision was declared moot as the patient had passed away prior the conclusion of the matter.