When is a person legally dead? (And does it really matter?)

A person who is brain dead often does not appear dead. For one, their heart can still be beating. The person's chest may rise and fall (since they are on a breathing machine), their body is warm to touch, and they may even be observed moving. These behaviours raise the question, when should a personally be legally dead?

Over the years multiple families have argued that "heart death", rather than brain death, should be used as the criterion to declare a person dead and issue a death certificate. One family brought the question to a judge to be decided once and for all.

By way of summary, a 27 year old woman in Ontario was found unconscious on a sidewalk. She was taken to a hospital and placed on a ventilator. She was declared brain dead in September 2017. Her family did not accept her death; they said they observed bodily movements that were more than reflexes.

In court her family challenged the standard of using “brain death” as the criterion for death. They wanted her death certificate revoked. They wanted cardiac death to be the criteria that was used for declaring her dead. Notably, there is no law in Ontario that prescribes a definition of death.

The family argued "that the adoption of neurological criteria to establish the death of those persons who hold a religious belief that life does not end until the heart stops beating (with or without mechanical assistance) violates such persons’ religious freedom." They thought that determining death should not merely be a medical exercise, but should also take into account the patient's values, wishes and beliefs.

The family lost their case. Health professionals in Ontario will continue to use the standard of brain death. This was not a surprising outcome, particularly because brain death is irreversible and supported by the majority of physicians as the appropriate standard.

Having reviewed similar cases, I have come to an important realization: legal disputes involving brain death frequently have something in common – an unexpected tragedy. In my review of the case law I observed drug overdoses, automobile accidents and asthma attacks - situations that arise suddenly. In these cases the families fought against the criterion of brain death and advocated to keep their loved ones on life support.

The issue, then, it appears, is not so much about the definition of death, but the fact that brain death comes first. A different definition of death is just a way to buy time. It means a family has to let go sooner, before they are ready. When a tragedy leads to brain death, everything happens too quickly – often faster than a family can process and accept what has transpired. Sometimes families are portrayed as not understanding the science or hoping for a miracle. While that might be true in some cases, I think it is too simplistic. Being able to hold a loved one’s hand, or give a warm body a kiss, is tangible. The patient will never regain consciousness, but they can
still be shown love – regardless of the legal definition of death.

Update: This case was appealed to the Court of Appeal. The woman's heart stopped beating before the decision was rendered, but the Court issued a decision regardless. The Court of Appeal upheld the decision of the lower court, confirming that brain death is the legal criteria for death in Ontario.

View All Blog Posts
Discover what we do
Know someone who is going
through a difficult time?
Click here to learn more about how you can help them