Charter does not apply to doctors’ clinical judgments in transplant case: Alberta Court of Appeal

By Ian Burns

Law360 Canada (November 11, 2022, 12:27 PM EST) -- The Alberta Court of Appeal has shot down a Charter challenge brought by a woman who has refused to become vaccinated against COVID-19 as a prerequisite for an organ transplant.

The three-judge panel of the court, which consisted of Justices Frederica Schutz, Michelle Crighton and Dawn Pentelechuk, ruled the Charter does not apply to doctors’ exercise of clinical judgments in formulating pre-conditions to organ transplant, including requiring vaccination (Lewis v. Alberta Health Services, 2022 ABCA 359).

“This is not the first time medical judgments about allocation of scarce resources have been made in the face of competing needs,” the court wrote in its Nov. 8 decision. “While such decisions are doubtless exceedingly difficult, they nevertheless must be made.”

The appellant in the case, Annette Lewis, suffers from what the court described as an “idiopathic condition” which is progressive and debilitating and requires a transplant. The program she was part of made it mandatory that patients receive a vaccine against COVID-19 prior to transplantation, resulting in Lewis becoming inactive on a transplantation waitlist.

Lewis tried to restore her place on the list and sought a declaration that the vaccine requirement is of no force or effect because it violates her Charter right to freedom of conscience, the right to life, liberty and security of the person and the right to equality, arguments which were rejected by the Alberta Court of King’s Bench in July (Lewis v. Alberta Health Services, 2022 ABQB 479).

And in its judgment, the Court of Appeal wrote it was not persuaded it “can, or ought to” interfere with generalized medical judgments or individualized clinical assessments involving her standard of care.

“While Ms. Lewis has the right to refuse to be vaccinated against COVID-19, the Charter cannot remediate the consequences of her choice,” the court wrote.

The three justices also rejected Lewis’ argument that the vaccination requirement violates her equality rights.

“Ms. Lewis’ COVID-19 vaccination status is not who she is. It is not an immutable personal characteristic, nor is it one that is changeable only at unacceptable cost to personal identity,” the court wrote. “Her choice not to get vaccinated against COVID-19 is just that — a choice. And while the decision whether to get a COVID-19 vaccine is personal, it remains fluid, made at a moment in time, based on available information and often in response to specific circumstances and influences. The decision can change, and often does, all with minimal or no cost to personal identity.”

Allison Pejovic of the Justice Centre for Constitutional Freedoms (JCCF), who represented Lewis, said she was “deeply disappointed” in the decision.

“[Lewis] has fought against this discriminatory policy not only for herself, but for all transplant candidates who are similarly being discriminated against,” she said. “We will review the decision further and consider an appeal to the Supreme Court of Canada.”

Lorian Hardcastle, University of Calgary

Lorian Hardcastle, University of Calgary

Lorian Hardcastle, assistant professor at the University of Calgary’s faculty of law, said she was not surprised by the ruling as the doctors’ decision not to perform Lewis’ transplant was a medical one which had very little to do with government policy.

“There is always debate about how the Charter applies when you get away from ‘government’ government, like a law passed by a legislative assembly, and into public entities like hospitals and universities,” she said. “But this case isn’t really an instance of establishing a policy, but rather one of physicians applying their clinical judgment.”

Hardcastle said both the Court of Appeal and the lower court seemed to be concerned about the implications of subjecting doctors’ clinical decisions to the Charter.

“Doctors have a private law duty of care which has served us pretty well in evaluating medical decisions for a long time, so there is that avenue that patients can always pursue,” she said.

And it was interesting that the court seemed to be very persuaded by the efficacy of vaccinations, said Hardcastle. She noted that Lewis was not really an anti-vaxxer, as she had received inoculations for other diseases in the past but seemed to be persuaded by the misinformation regarding COVID-19 vaccines.

“And the court didn’t seem to have a lot of patience for some of that misinformation, and that may signal an approach that the courts take in other kinds of cases where people don’t want to be vaccinated, such as the employment context,” she said. “The court used very emphatic language that this was just Lewis’ choice, and she can change her mind. And that really sent a message that they are not just going to entertain these kinds of arguments at all.”

Representatives of Alberta Health Services were not immediately available for comment.

Due to a court order, the names of the doctors, the hospital, the city where the transplant program is located or the name of the organ that Lewis needs cannot be revealed.

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