Requiring an organ transplant candidate to be vaccinated against COVID-19 is not unconstitutional, ruled an Alberta judge who says changing rules for such a significant procedure would result in “medical chaos.”
Annette Lewis, who is in need of a transplant, filed a legal challenge against Alberta Health Services, a hospital and doctors in May. She argued having to take what she considers an “experimental” COVID-19 vaccine to receive the life-saving surgery violates her protected rights under the Canadian Charter of Rights and Freedoms.
A publication ban covers any mention of the specific organ, in addition to the hospital and doctors involved.
In a decision filed Tuesday, Edmonton Justice Paul Belzil dismissed Ms. Lewis’s case and concluded the Charter has no bearing on clinical treatment decisions or on criteria established by doctors for organ transplantation.
“I accept without hesitation that her concerns about the safety and efficacy of COVID-19 vaccines are genuine and deeply rooted,” wrote Justice Belzil. “I do not accept, however, that her beliefs and desire to protect her bodily integrity entitle her to impact the rights of other patients or the integrity of the [transplant program] generally.”
Allison Pejovic, a lawyer with the Justice Centre for Constitutional Freedoms who represents Ms. Lewis, said the court’s decision is “deeply disappointing” and they are considering whether to appeal. The legal advocacy organization has filed numerous lawsuits against COVID-19 health measures across Canada.
Ms. Lewis was diagnosed with a fatal condition in 2018 and has been told a transplant is her only chance at survival. She was placed on the waitlist in June, 2020. The 57-year-old has undergone extensive testing, and agreed to a series of vaccinations in 2020 after her immunization history could not be located and verified.
But in March of last year, she refused to take the COVID-19 vaccine. All other preconditions for a transplant have been fulfilled. In a sworn affidavit, Ms. Lewis said taking the COVID-19 vaccine offends her conscience and amounts to medical coercion.
“I ought to have the choice about what goes into my body, and a lifesaving treatment cannot be denied to me because I chose not to take an experimental treatment for a condition – COVID-19 – which I do not have and which I may never have,” she said.
Justice Belzil rejected that argument.
“No one has a right to receive [organ] transplants, and no one is forced to undergo transplantation surgery,” he wrote in his decision. “It is illogical for the applicant to freely accept all other preconditions to transplantation and object to one on the basis of alleged medical coercion.”
Ms. Pejovic said in a statement that Ms. Lewis’s illness is worsening. She could not comment on her client’s medical status as it relates to the transplant waitlist, due to privacy concerns.
Defendants filed evidence on the efficacy of COVID-19 vaccines and explained the rationale for vaccination and how the organ donation program works. The program serves patients in Alberta, Saskatchewan, Manitoba, eastern British Columbia, Northwest Territories and parts of Nunavut. It was noted that organ donations are scarce and people in need of transplants are at high-risk of death both before and after surgery.
A committee comprised of medical experts decides whether a patient is accepted into the program. A person can be rejected if an organ transplant would “unacceptably increase the patient’s risk of death without a meaningful chance of improving duration and quality of life,” the decision states.
The court heard that nearly 40 per cent of transplant recipients infected with COVID-19 died during the fourth wave of the pandemic, between September and November 2021. The program’s responsibility to donors is to provide organs to those with the best chance at survival.
The judge also concluded that a successful application by the plaintiff could result in “significant public policy implications,” in which treating physicians exercising clinical judgment would be subject to the Charter and patients would seek an “endless judicial review of clinical treatment decisions.”
“The standard of care for [organ] transplants must be the same for all potential recipients, all of whom are subject to the same surgical preconditions,” he wrote. “I do not accept that the applicant, or any other potential recipient, has the right to demand that the [transplant program] be modified at their request.”
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