Alberta Health Service vaccine mandates impact four Alberta medical doctors

On August 31, 20213, Alberta Health Services (AHS) announced that all frontline workers, physicians, midwives, nurses and contracted staff working in AHS facilities would be required to be fully vaccinated for Covid by October 31, 2021. The deadline was later extended to November 30 and then again to December 13 on the recommendation of the Government of Alberta.

Four Alberta doctors faced disciplinary action, restrictions, and termination for refusing to be vaccinated for Covid. Each had served their patients without incident during the worst of the Covid pandemic over the previous 20 months,

Dr. Blaine Achen served as Chief of Cardiac Anesthesia at the renowned Mazankowski Alberta Heart Institute. He remarked, “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 served as the personal doctor to the Nelson Mandela family and practiced in Medicine Hat. He said, “Treating and reducing Covid severity ought to be the goal of medical doctors, and it ought to be part of the strategy used by AHS.”

Dr. Nadr Jomha served as a specialized Orthopaedic Surgeon for complex foot and ankle reconstruction and trauma cases and was instrumental in the development of one of Canada’s cryopreservation (cold-preservation) joint transplantation programs. He remarked, “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; and (c) are unlikely to transmit Covid, there is no medical or scientific benefit to myself of those around me or anyone around me.”

Dr. Tyler May practiced in the under-served community of Manning, Alberta – 73 kilometres north of Peace River. After refusing to be vaccinated for Covid, AHS allowed him to access his hospital but not his clinic. He stated, “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.”

Justice Centre challenges Covid vaccine mandate of Alberta Health Services

On December 8, 2021, our lawyers filed a Statement of Claim and an Injunction Application at the Alberta Court of Queen’s Bench on behalf of these four Alberta doctors.

In addition to challenging AHS for constitutional violations, the lawsuit advocates for returning to basic medical principles, including the recognition of natural immunity, doctor-patient privilege, informed consent, personal autonomy, and duty-to-disclose.

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 (a) protection by natural immunity from previous Covid infection with (b) protection by vaccination.

In his report, Dr. Kettner stated, “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, our lawyers asked the Court to grant a temporary order prohibiting AHS from enforcing the vaccine mandate against the doctors. Our lawyers also requested a temporary order directing AHS to follow Alberta’s Restriction Exemption Program and to allow Rapid Testing in lieu of vaccination to allow the doctors to continue to practice at AHS sites in Alberta.

A few days later, in yet another last-minute amendment to the AHS vaccine mandate, AHS decided 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.

Alberta court acknowledges right of physicians to refuse Covid vaccination

In his one-hour oral decision dated December 17, 2021, Justice Henderson acknowledged that the doctors in this case felt a principled objection to taking the Covid vaccine and that the doctors had “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 from AHS before he could fully consider the strength of the legal challenge brought by the doctors.