Achen, Grobler, Jomha, May v. Alberta Health Services

The Justice Centre filed a Statement of Claim and Injunction Application at the Court of Queen’s Bench on December 8, 2021, on behalf of four Alberta physicians. The doctors are facing termination, restrictions, and disciplinary action for standing against Alberta Health Service’s (“AHS”) Vaccine Mandate. In addition to challenging AHS for constitutional violations, the lawsuit advocates for returning to basic medical principles including: recognition of natural immunity, doctor-patient privilege, informed consent, personal autonomy and duty to disclose.

On August 31, AHS announced that all frontline workers, physicians, midwives, nurses and contracted staff working in AHS facilities would be required to be fully vaccinated with new Covid shots by October 31. That date was extended to November 30 to allow time to make sure “our workforce is as safe and robust as it can be,” said AHS President and CEO Dr. Verna Yiu in an October 22 address to the province. On November 29, one day before mandatory vaccinations were to be implemented for all staff, the deadline was again extended to December 13, on the recommendation of the Alberta government. The last extension allowed the option for some AHS staff to undergo Covid testing to return to work, but not others.

All four doctors treated and cared for their patients without incident during the worst of the Covid-19 pandemic over the past 20 months.

Dr. Nadr Jomha, a specialized Orthopaedic Surgeon for complex foot and ankle reconstruction and trauma cases, and instrumental in the development of one of Canada’s cryopreservation (cold-preservation) joint transplantation programs, states: “Given that an overwhelming majority of studies prove that individuals with naturally acquired immunity have: a) been shown to have equal or better immunity than a vaccine-induced immunity; b) are very rarely re-infected with Covid-19; and c) are unlikely to transmit Covid-19, there is no medical or scientific benefit to myself of those around me or anyone around me.”

Dr. Blaine Achen, who held the position of Chief of Cardiac Anesthesia at the renowned Mazankowski Alberta Heart Institute, until he was terminated for not complying with AHS’ Vaccine Mandate, says: “The medical system in Alberta is struggling. The recent treatment of health care workers in this province, in addition to the current AHS policies and management, is driving physicians out of Alberta and will further exacerbate an already dire situation. AHS’ last-minute amendments and extensions to the Policy caused confusion and scheduling problems at the Hospital, which have negatively impacted AHS staff and patients. My forced departure will invariably cause additional delays in the operating room and will cause harm to patients in Alberta.”

Dr. Gert Grobler, once the personal doctor to the Nelson Mandela family, and now practicing in Medicine Hat, notes: “Treating and reducing Covid-19 severity ought to be the goal of medical doctors and it ought to be part of the strategy used by AHS.”

Dr. Tyler May, is one of two doctors in the under-served community of Manning, Alberta, 73km north of Peace River, is being allowed access to his hospital (after it was deemed one of the critical sites in AHS’ 2nd revision of the Vaccine Mandate) but not his clinic, said: “AHS’ decision is completely arbitrary and absurd, as the facilities are intimately linked, and it provides another example of AHS putting ideology and policy over patient care – much like the [Vaccine Mandate] itself.”

To support this claim, Dr. Joel Kettner, former Chief Public Health Officer for Manitoba, prepared an expert report which included a review of how major public health organizations have compared protection by natural immunity from previous Covid infection with protection by vaccination. In his report he states: “I have been unable to find relevant data or clear rationale for policies pertaining to the exclusion of health care workers because of their vaccination status, especially since there has been consistent evidence for equivalent – if not superior – protection by natural immunity resulting from previous infection, as described by the major public health organizations and the Public Health Agency’s National Advisory Committee on Immunization”.

On December 14, 2021, the Justice Centre was in Court requesting that the Court grant a temporary order prohibiting AHS from enforcing the Vaccine Mandate against the doctors, as well as a temporary order directing AHS to follow Alberta’s Restriction Exemption Program and allow Rapid Testing in lieu of vaccination to allow the doctors to continue to practice at AHS sites in Alberta.

In his one-hour oral decision dated December 17, 2021, Justice Henderson acknowledged that all the doctors have taken a principled objection to taking the Covid vaccine and that all the doctors have “genuine, subjective concerns with the Covid-19 vaccines that are currently available.” Justice Henderson went on to say: “One thing is perfectly clear; the Plaintiffs have a right to refuse to take the vaccine. No one can force them to take the vaccine. That is a right that must be respected.”

Notwithstanding this statement, Justice Henderson dismissed the application for an Interim Order stating that it was necessary to hear more comprehensively from AHS before he could fully consider the strength of the legal challenge brought by the doctors.

On December 22, 2021, AHS announced the third amendment to the Vaccine Mandate, on direction of the Alberta Government, to allow an estimated 1,400 unvaccinated full-time and part-time healthcare workers who were placed on unpaid leave, terminated and/or disciplined by AHS, to return to work with the option of rapid testing.

AHS’ amendment came days after the Justice Centre was in court, requesting a temporary order prohibiting AHS from enforcing the Vaccine Mandate against four doctors, as well as a temporary order directing AHS to follow Alberta’s Restriction Exemption Program and allow Rapid Testing in lieu of vaccination to allow the doctors to continue to practice at AHS sites in Alberta.

The December 14, 2021, application is only a first step in an anticipated long legal challenge to protect the personal physical autonomy and Charter rights of physicians and other health care workers who are being fired for not taking the new Covid vaccine.  All parties involved have agreed to a shortened hearing schedule to expedite the case and ensure that a trial will occur within the next 3 months.

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