Saturday, February 17, 2018

Brain death in the news

To the doctors at Humber River Hospital, 25-year-old Shalom Ouanounou is dead. He has no capacity for consciousness, no brainstem reflexes, and no ability to breathe on his own.

But to his devoutly religious family, who adhere to a interpretation of Jewish law that defines death as cardiac and respiratory failure, Ouanounou is very much alive.

Since November, when an emergency injunction was obtained to stop the hospital from ending Ouanounou's life support a few weeks after he was pronounced dead, he's lain in a bed in the west-end hospital as machines support his respiratory and cardiac systems. 

What becomes of him is now in the hands of an Ontario judge, Justice Glenn Hainey, who heard arguments this week for and against the continuation of his life support.

"Ontario has no legal definition of death. Some provinces do, but Ontario doesn't," said Mark Handelman, a lawyer representing Ouanounou via his father, who is acting as his substitute decision maker.

Along with his co-counsel Hugh Scher, Handelman argues that removing life support for Ouanounou, a committed Orthodox Jew, would violate his charter right to freedom of religion.

Ouanounou was rushed to hospital on Sept. 27 in the midst of a severe asthma attack that deprived his brain of oxygen, resulting in irreversible damage. He was pronounced dead three days later.

In an affidavit, his father Maxime Ouanounou described his son's identity as being defined by his "strict adherence to his religious beliefs."

Before his asthma attack, "[Shalom] made clear that his beliefs in this regard are that "brain death" is not the same as death," he went on.

The Ouanounou family's lawyers argue that Ouanounou should be treated "in the same manner as any other severely neurologically impaired patient," with everything possible done to prolong his life.

They also want his death certificate revoked and for disputes about the withdrawal of life support to go to Ontario's Consent and Capacity Board in the future.

Defining death, the lawyers wrote in a factum, must be based "not only on medical criteria but also on individual wishes, values and beliefs."

Meanwhile, a group of three doctors and the Humber River Hospital make the argument that despite the lack of a fixed legal definition, in practice, neurological death is "death at law in Ontario."

Definitions of when life ends need to be applied uniformly, it said in a legal document containing their arguments. Anything else "would create massive uncertainty medically, legally and socially."

As for his religious freedom, "charter rights and freedoms are only enjoyed by living persons," the document says.  

The hospital also expanded on the "extraordinary" measures it is using to keep Ouanounou's cardiac and respiratory systems working, which include numerous antibiotics, hormones, and medications to slow organ death and mimic signals sent out by the brain.

"The only reason that the applicant's heart is still beating is because of the intensity of the interventions being provided to him," argued the hospital, who said that to date the cost of Ouanounou's care has been about half a million dollars.

Aliza Karoly, a lawyer who has been working pro bono to help the Ouanounou family and their rabbi navigate the legal process, says the case has caught the attention of the Orthodox community.

"It's very important to us," she said. "We don't want to be caught in a situation in which the hospital doesn't consider what we want."

Karoly said Orthodox Jews filled the courtroom while arguments were being made earlier this week, including high school students who were bussed in for the occasion.

"You have to face the fact that it affects every single one of us in that courtroom," she said…

Also waiting for a judge's decision is the family of Taquisha McKitty, a Brampton woman who was declared brain dead in Sept. 2017, but whose family wants her to remain on life support. The McKitty family is also being represented by Hugh Scher.

Initial arguments in that case centred on the possibility that McKitty was not in fact brain dead.

Her father said the 27-year-old showed signs of life that included squeezing the hands of family and even shedding tears.

Scher also introduced an argument similar to Ouanounou's, saying that declaring her dead while her heart continues to beat contravenes her Christian beliefs and amounts to discrimination.


  1. In the last six months of his life, Netanel Shalom Ouanounou became a symbol of religious freedom and human rights for many people. In death, he was remembered as a young man who inspired many good deeds, fostered community unity and was a devoted and loving friend.

    Ouanounou, 25, died on March 8, with his family by his side. His mother, Rebecca Ouanounou, had been with him every day since he was hooked up to life-support machines, after suffering a severe asthmatic attack in September.

    His fate had been the subject of a protracted legal case that had not yet run its course. Lawyers for Humber River Hospital had claimed that Ouanounou was brain dead and they wanted to remove him from life support.

    Ouanounou’s family, meanwhile, argued that his condition did not meet the Jewish definition of death, which occurs when the heart and lungs stop working. They had asked for a religious exemption, similar to one that exists in New Jersey, where hospitals have agreed to accommodate the religious beliefs of Orthodox Jews by keeping patients on life support as long as the heart and lungs are functioning.

    A Superior Court judge granted a temporary injunction in November 2017 and, only a few weeks ago, the court reconvened to hear legal arguments that were expected to determine Ouanounou’s ultimate fate. His father, Max Ouanounou, said that his son had moved his fingers on command, suggesting that there was still activity in the brain.

    Over two days of hearings, the court was packed with onlookers, many from the Orthodox Jewish community, who were concerned that the court might side with the hospital, contrary to the Ouanounou family’s wishes and Jewish law.

  2. The young man at the centre of a court debate over the legal definition of death in Ontario will be remembered at a funeral on Friday.

    Shalom Ouanounou, 25, spent more than five months lying in a hospital bed, incapable of consciousness, moving or breathing on his own.

    To his doctors, he was dead, and had been since late September, when he suffered a severe asthma attack that led to his brain death.

    But to his devoutly religious family, who believe in a piece of Jewish law that says that only when a heart stops beating is someone dead, he was very much alive thanks to the life support machines that kept his cardiac and respiratory systems functioning.

    Late Thursday night, Ouanounou lawyer Hugh Scher confirmed that Shalom had "passed away" that afternoon and would be honoured at a funeral in Thornhill, Ont,. on Friday.

    "Shalom's heart stopped, and he stopped breathing… which is the definition of death under Jewish law and under Canadian law in most instances," said Scher.