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When Does Ontario Law Say a Person Has Died?

The short answer is, it doesn’t.  While some provinces have defined “death,” Ontario has not, preferring to leave it to physicians to make the determination.  Sometimes, this causes discord.

Physicians are authorized to “pronounce” death if either the person’s heart has stopped or if there is no brain function.  More precisely, brain death is defined to be “the irreversible loss of the capacity for consciousness combined with the irreversible loss of all brain stem functions…including the capacity to breathe.”  but, a brain dead person on a ventilator may continue, with that mechanical assistance to appear to “breathe’ long after neurological death.  At that point, is the person dead or alive?

This issue has become important because withdrawal of life support generally requires consent from the patient or the patient’s substitute decision-makers.  After brain death, is that consent still required?

There is little Canadian case law to assist in answering this question, which was posed to The Consent and Capacity Board in a recent case, Re EI, CCB files 16-1922-01, 16-1922-02, not yet reported*.  EI was taken to hospital following a motor vehicle accident .  Mechanical ventilation and other treatments were initiated, but a few days later EI met the neurological criteria for brain death and her physicians issued a Death Certificate.  EI’s family was advised that the physicians proposed to discontinue mechanical ventilation.  Her sister objected and commenced an Application for Directions before the CCB, pursuant to s. 35 of the Health Care Consent Act.

Prior to a Hearing on the merits, EI’s heart stopped while she was still receiving mechanical ventilation.  Her sister sought to withdraw the Application for Directions but counsel for the physicians objected, saying the question of whether consent was required to discontinue life support after brain death was important and that even though moot for EI and her family, the Board should nonetheless address the preliminary issues of whether or not consent was required—or whether the Board had jurisdiction to adjudicate the Application.  Evidence at the Hearing disclosed that in the approximately two and a half years preceding this Application there were 56 cases of brain death at this hospital, about 5 of which resulted in conflict with family members who did not accept the declaration of death.

The Board Panel, consisting of a single Senior Lawyer Member, concluded it did not have jurisdiction because EI’s sister withdrew her Application: the Board had nothing to adjudicate.

However, given the importance of the issue, the Board did propose a procedure in the event future Applications are made regarding a patient whose death certificate is issued: As soon as the Board is aware that a Death Certificate has been issued in respect of a person who is the subject of an Application to the Board, it will schedule a pre-Hearing and, upon confirmation of the existence of a Medical Certificate of Death, dismiss the Application for want of jurisdiction because there is no “person” and therefore no “treatment.”

It should be noted that this Decision is not binding, even on the Consent and Capacity Board and subsequent Panels may take a different approach.  However, this is a sensible way of dealing with this thorny issue and one can only hope the suggested process is adopted — for everyone’s benefit.

* The board takes two to three months to post is “Reasons for Decision” on CANLII.  Anyone wishing a copy of these Reasons should write and ask me for it — it is a public document.

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