It is not unconstitutional to deny an organ transplant to a woman who refuses to get a COVID-19 vaccine, an Edmonton judge has ruled.
Annette Lewis went to court to keep her place on the waiting list for an Edmonton-based transplant program after doctors told her she would not be eligible because she is not immune to COVID-19.
In a ruling handed down on Tuesday, Crown Court judge Paul Belzil rejected Lewis’ argument that her Charter rights had been breached.
It held that the Charter does not apply to clinical treatment decisions and, in particular, does not apply to doctors setting criteria for organ transplantation. There is a ban on publishing the identification of the specific authority.
Lewis was diagnosed in 2018 with a chronic, progressive disease without treatment.
Doctors told her a transplant was her only hope for survival. After extensive testing, Lewis was deemed healthy enough to qualify for a transplant, Belzil’s decision details.
In early 2020, she was advised to receive a series of vaccinations, including childhood vaccinations, as her immunization history could not be detected. She agreed and received all the vaccines.
But in March 2021, when she was told she needed a COVID-19 vaccine to receive the transplant, she refused.
“Taking this vaccine offends my conscience,” Lewis wrote in an affidavit filed in court.
“I should have a choice about what goes into my body, and I cannot be denied life-saving treatment because I chose not to take an experimental treatment for a condition — COVID-19 — that I do not have and may never have.”
Donor shortage, risk factors for COVID-19
In response, Alberta Health Services and the doctors and hospital involved in Lewis’ case submitted evidence about how the transplant program works, how patients are selected, the risks of COVID-19 infection for the transplant recipient, and evidence that vaccines against COVID -19 are safe and effective.
The names of the doctors and the hospital were redacted from Belzil’s decision. The transplant program in question provides services to patients in Alberta, Saskatchewan, Manitoba, eastern British Columbia, the Northwest Territories and parts of Nunavut.
Decisions to add a patient to the transplant list are made by a panel of medical experts who consider the severity of the recipient’s need and likelihood of survival.
The court heard that because these organ donors are scarce, one in five people on Edmonton’s waiting list die before receiving a transplant.
A patient may be rejected if transplantation would unacceptably increase the patient’s risk of death without a significant chance of improving the quality and length of life.
After the COVID-19 vaccine became available, transplant program professionals decided it was in the best interest of pre-transplant candidates to be vaccinated because of the significant risk that COVID-19 poses to severely immunocompromised transplant recipients.
The court heard that during the fourth wave of the pandemic between September and November 2021, nearly 40 per cent of similar transplant recipients in Edmonton who were infected with COVID-19 eventually died.
In his reasons for the decision, Belzil agreed that it was “undisputed” that Lewis was the only one making decisions about what went into her body and that she was entitled to her beliefs about vaccines.
“However, I do not accept that her beliefs and desire to protect her bodily integrity give her the right to affect the rights of other patients or the integrity of [transplant program] in general,” the judge said. “No one is entitled to receive [organ] transplants and no one is forced to undergo transplant surgery.”
Belzil also found that if Lewis’ application was successful, it would have significant negative public policy implications, would be unfair to other patients and would disrupt the transplant program.
“The proposal that treating doctors making clinical judgments would be subject to the Charter would lead to medical chaos with patients seeking endless judicial review of clinical treatment decisions,” Belzil said.
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