Annette Lewis went to court to keep her place on an Edmonton-based transplant program’s waiting list after doctors told her she wouldn’t be eligible because she hasn’t been vaccinated against COVID-19.
In a ruling filed Tuesday, Court of Queen’s Bench Justice Paul Belzil rejected Lewis’ argument that her Charter rights had been violated.
It ruled that the Charter does not apply to clinical treatment decisions and, in particular, does not apply to doctors establishing criteria for organ transplantation. There is a publication ban on the identification of this particular organ.
Lewis was diagnosed in 2018 with a chronic, progressive disease without treatment.
Doctors told her a transplant was her only hope of survival. After extensive testing, Lewis was deemed healthy enough to qualify for a transplant, according to details in Belzil’s decision.
As of 2020, she was advised to have a series of vaccinations, including childhood vaccines, as her vaccination history could not be traced. He agreed and had all the vaccinations.
But in March 2021, when she was told she needed a vaccine for COVID-19 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 can’t be denied a life-saving treatment because I chose not to have an experimental treatment for a condition — COVID-19 — that I don’t have and may never have. “
Lack of donors, risk of COVID-19 agents
In response, Alberta Health Services and the doctors and hospital involved in Lewis’ case filed evidence about how the transplant program works, how patients are selected, the risks of contracting COVID-19 in a transplant recipient and evidence that vaccines for COVID-19 are safe and effective.
The names of the doctors and the hospital were redacted from Belzil’s decision. This transplant program 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 need and the recipient’s likelihood of survival.
The court heard that because these organ donors are rare, one in five people on Edmonton’s waiting list die before receiving a transplant.
A patient may be rejected if the transplant unacceptably increases the patient’s risk of death without substantial potential to improve quality and length of life.
Once the COVID-19 vaccine became available, experts with the transplant program determined that it was in the best interest of pre-transplant candidates to be vaccinated because of the significant risk that COVID-19 poses to highly immunosuppressed transplant recipients.
The court heard that during the fourth wave of the pandemic between September and November 2021, almost 40 per cent of similar transplant recipients in Edmonton who were infected with COVID-19 ended up dying.
In his reasons for his decision, Belzil agreed that it was “beyond dispute” that Lewis is the only one who decides what happens to her body and that she has a right to her beliefs about vaccines.
“I do not accept, however, that her beliefs and desire to protect her physical integrity entitle her to affect the rights of other patients or the integrity of [transplant program] generally,” the judge said. “No one has the right to receive [organ] transplants and no one is forced to undergo a transplant operation.”
Belzil also found that if Lewis’ application was successful, it would have significant negative public policy implications, be unfair to other patients and disrupt the transplant program.
“The proposal that treating physicians exercising clinical judgment be subject to the Charter would lead to medical chaos with patients seeking endless judicial review of clinical treatment decisions,” Belzil said.
title: “Charter Not Violated In Denying Transplant To Patient Who Refused Covid 19 Vaccine Court Rules " ShowToc: true date: “2022-12-16” author: “Fay Fulmer”
It is not unconstitutional to deny an organ transplant to a woman who refuses the COVID-19 vaccine, an Edmonton judge has ruled.
Annette Lewis went to court to keep her place on an Edmonton-based transplant program’s waiting list after doctors told her she wouldn’t be eligible because she hasn’t been vaccinated against COVID-19.
In a ruling filed Tuesday, Court of Queen’s Bench Justice Paul Belzil rejected Lewis’ argument that her Charter rights had been violated.
It ruled that the Charter does not apply to clinical treatment decisions and, in particular, does not apply to doctors establishing criteria for organ transplantation. There is a publication ban on the identification of this particular organ.
Lewis was diagnosed in 2018 with a chronic, progressive disease without treatment.
Doctors told her a transplant was her only hope of survival. After extensive testing, Lewis was deemed healthy enough to qualify for a transplant, according to details in Belzil’s decision.
As of 2020, she was advised to have a series of vaccinations, including childhood vaccines, as her vaccination history could not be traced. He agreed and had all the vaccinations.
But in March 2021, when she was told she needed a vaccine for COVID-19 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 can’t be denied a life-saving treatment because I chose not to have an experimental treatment for a condition — COVID-19 — that I don’t have and may never have. “
Lack of donors, risk of COVID-19 agents
In response, Alberta Health Services and the doctors and hospital involved in Lewis’ case filed evidence about how the transplant program works, how patients are selected, the risks of contracting COVID-19 in a transplant recipient and evidence that vaccines for COVID-19 are safe and effective.
The names of the doctors and the hospital were redacted from Belzil’s decision. This transplant program 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 need and the recipient’s likelihood of survival.
The court heard that because these organ donors are rare, one in five people on Edmonton’s waiting list die before receiving a transplant.
A patient may be rejected if the transplant unacceptably increases the patient’s risk of death without substantial potential to improve quality and length of life.
Once the COVID-19 vaccine became available, experts with the transplant program determined that it was in the best interest of pre-transplant candidates to be vaccinated because of the significant risk that COVID-19 poses to highly immunosuppressed transplant recipients.
The court heard that during the fourth wave of the pandemic between September and November 2021, almost 40 per cent of similar transplant recipients in Edmonton who were infected with COVID-19 ended up dying.
In his reasons for his decision, Belzil agreed that it was “beyond dispute” that Lewis is the only one who decides what happens to her body and that she has a right to her beliefs about vaccines.
“I do not accept, however, that her beliefs and desire to protect her physical integrity entitle her to affect the rights of other patients or the integrity of [transplant program] generally,” the judge said. “No one has the right to receive [organ] transplants and no one is forced to undergo a transplant operation.”
Belzil also found that if Lewis’ application was successful, it would have significant negative public policy implications, be unfair to other patients and disrupt the transplant program.
“The proposal that treating physicians exercising clinical judgment be subject to the Charter would lead to medical chaos with patients seeking endless judicial review of clinical treatment decisions,” Belzil said.
