Judge rules doctors can require patient to receive Covid shot before life-saving transplant

ALBERTA: An Alberta Court of Queen’s Bench judge has ruled that the Canadian Charter of Rights and Freedoms does not apply to the decision of an organ transplant team, which requires candidates to be vaccinated for Covid prior to their organ transplant. The Justice Centre  represents Sheila Annette Lewis, who has a terminal condition. She brought an application in the Alberta Court of Queen’s Bench asking that the court uphold her Charter-protected right to conscience, bodily autonomy, and freedom to choose without coercion.

This case is under a publication ban. Due to a Court Order, the Justice Centre may not reveal the names of the doctors, the hospital, the city where the transplant program is located, nor the name of the organ that Ms. Lewis needs for life-saving surgery.

The transplant program team is a group of doctors who work within an organ transplant program, which is funded by Alberta Health Services (“AHS”). Both the transplant program and AHS have unwritten policies which require transplant candidates to receive the Covid vaccine prior to receiving their transplant.

Justice R. P. Belzil found that while the Charter applies to AHS, in this instance “the proposed AHS policy, which has not been completed, mirrors the recommendations of the treating physicians which are exercising clinical judgment.” The evidence in fact showed that one of the treating physicians advised Ms. Lewis in November 2021 that AHS required Covid vaccination for transplant candidates.

Neither the treating physicians’ nor AHS’ Covid vaccination policies for transplant patients are written, but both were communicated to Ms. Lewis by her treating physicians. While the circumstances around the policy were debated, Justice Centre lawyer Allison Pejovic notes the evidence was clear that AHS and the treating doctors, either made the policies, were aware of the policies, or enforced the policies.

In support of her Charter arguments, Ms. Lewis filed expert reports from two immunologists, Dr. Bonnie Mallard and Dr. Byram Bridle, who is also a vaccinologist. Their expert reports and oral testimony illustrated that the Covid vaccines are still in clinical trials and will be in clinical trials until late 2022 at the earliest, and that the peer reviewed research and raw scientific data lead them to seriously question the safety and efficacy of the Covid vaccines as compared to traditional vaccines that have been around for decades.

She also filed an expert report from a surgeon with a Masters in Health Care Ethics, Dr. Benjamin Turner, who testified that the benefit of vaccination for Ms. Lewis was so small that it was unethical to require her to get the Covid vaccine prior to her transplant. Justice Belzil declined to address the scientific and ethical arguments advanced because  he determined that the Charter did not apply to the treating physicians.

“The Court’s decision is deeply disappointing,” states Ms. Pejovic, legal counsel for Ms. Lewis.

“AHS has an obligation to ensure that doctors that are carrying out their duties within the provincially funded transplant program are upholding the Charter, and it seems that the court has effectively ruled that AHS can contract out of its Charter obligations,” she states.

The Justice Centre will review the decision and determine whether to file an appeal.