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Charter does not apply to doctors’ treatment decisions in vaccine-related case, Alberta judge rules

Wednesday, July 20, 2022 @ 3:45 PM | By Ian Burns

An Alberta judge has ruled it was not unconstitutional for doctors to deny an organ transplant to a patient who refuses to be vaccinated against COVID-19.

In his July 12 decision, Court of Queen’s Bench Justice Paul Belzil ruled the Charter does not apply to clinical treatment decisions, or to physicians establishing preconditions for organ transplants. The exercise of clinical judgment by doctors is owed substantial deference, he wrote.

“In order for the medical system to function properly, treating physicians who are providing clinical advice, must be free to do so and are not governed by the Charter but rather by the standard of care which is owed to every patient,” he wrote. “No case authority has been cited wherein it was decided that any patient has the right to set preconditions for any medical procedure let alone complex organ transplant surgery requiring significant post-operative care.”

The case was brought by Sheila Annette Lewis, who went to court to save her spot on a waitlist after she was informed by her organ transplant team she would have to get the COVID-19 vaccine in order to receive a transplant for a life-threatening illness. The physicians noted the high risk of infection for patients who are immunocompromised, but Lewis declined to receive the vaccine despite getting a number of other shots. She brought an application in the Alberta Court of Queen’s Bench asking that the court uphold her right to conscience, bodily autonomy and freedom to choose without coercion.

But Justice Belzil noted the organ transplant team’s conditions are not part of government policy and there is no requirement for treating physicians to seek the approval of a governmental authority before implementing them. He also wrote there would be “significant adverse public policy implications” if Lewis were successful in her application.

“The proposition that treating physicians exercising clinical judgment would be subject to the Charter would result in medical chaos with patients seeking endless judicial review of clinical treatment decisions,” he wrote.

Allison Pejovic of the Calgary-based Justice Centre for Constitutional Freedoms (JCCF), which represented Lewis, called the court’s decision “deeply disappointing.”

“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 said in a statement, noting the decision was being reviewed to determine next steps.

University of Calgary professor Lorian Hardcastle said the case fell into an interesting “grey area” of whether bodies like hospitals and universities are subject to the Charter.

“You have lots of cases where the Charter doesn’t apply where a case fully involves the private sector, and then you have clear cases when it does apply like legislation,” she said. “But hospitals and universities which are public and carrying out some government function but aren’t government, so not everything they do is subject to the Charter — so health is one of those spaces where you have in some cases the Charter has applied depending on what the health related issue was, and then you have other case where it didn’t.”

Hardcastle said it was “very likely” the Charter would have applied if the transplant policy had come from AHS, rather than Lewis’ doctors.

“But I don’t think the outcome would have been different. I think a court would have found that even if the policy did infringe on her rights, then it was a reasonable decision on the government’s part,” she said. “It makes sense in that organs are scarce, and it is minimally impairing of her rights because they have that scarcity problem — and there is very good clinical evidence that if you are on immunosuppressive drugs, you are susceptible to infections like COVID. It is a widely accepted practice that patients who are going to get organ transplants have to get vaccinated.”

Due to a publication ban in the case, the organ Lewis requires for her surgery cannot be revealed, nor can the names of the doctors, the hospital and the city where the transplant program is located.

A representative for the AHS declined a request for comment.

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