The family of a woman declared clinically brain dead last year is appealing a court’s decision that would have seen her taken off life support, claiming the judge made several errors in her ruling.
Doctors declared 27-year-old Taquisha McKitty “dead by neurological criteria” on Sept. 20, 2017, one week after she was found unconscious on a Brampton sidewalk following a drug overdose.
Her parents launched a legal challenge arguing their daughter’s Christian faith defines death as the cessation of the heartbeat, and that doctors should have to take people’s beliefs into account before declaring them dead.
Ontario Superior Court Justice Lucille Shaw ruled against the family last month, but McKitty was to be kept on life support for 30 days in case the family decided to appeal.
In documents filed in court last week, McKitty’s parents argued their daughter should stay on life support and listed nearly 50 ways in which they believe Shaw’s decision was wrong.
“The court erred in finding that the determination of death requires no assessment whatsoever of Taquisha’s individual wishes, values and beliefs, but only requires the assessment of certain value-laden, limited, arbitrary, and evolving medical considerations,” McKitty’s parents, Stanley Stewart and Alyson McKitty, argue in their appeal.
Shaw’s decision raised “many issues of concern” to Taquisha McKitty’s family, their lawyer, Hugh Scher, said in a written statement issued Monday.
“There are (also) serious issues of public interest and concern including the interpretation of religious freedom, equality and life itself raised,” Scher said.
McKitty’s family argues the judge “failed to apply the protections” of Canada’s Charter of Rights and Freedoms or the Human Rights Code after they had claimed their daughter’s charter rights were infringed when doctors declared her dead in contravention of her religious beliefs.
Shaw said in her decision that the charter does not apply to McKitty because the document only protects “persons” and McKitty, because she is clinically brain dead, is not legally a “person.”
The judge also said in her ruling that forcing doctors to keep patients on ventilation until their heart has stopped, as per McKitty’s religious beliefs, could have “significant financial impact” on the health-care system, using up staff and resources that could be used to help other patients.
The appeal claims that part of Shaw’s ruling was not based on hard facts.
“The court improperly (relied) upon assumptions of unproven financial and resource allocation factors to justify its acceptance of neurological death and to reject the requirement of reasonable accommodation of religious beliefs that don’t accept neurological death as death,” the family argues.
McKitty’s family also argued Shaw was wrong to disqualify the expert opinion of a family witness, and wrong not to allow McKitty’s movements to be filmed for a 72-hour period “to allow for a proper systematic assessment as to whether or not Taquisha met the requirements for a determination of death by neurological criteria.”