Canadian judge says denying organ transplants to unvaccinated patients does not violate the Charter

An Edmonton, Alberta judge ruled that it is not unconstitutional to deny a patient an organ transplant if they are not vaccinated against COVID-19.

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In a decision filed Tuesday, Court of Queen’s Bench Justice Paul Belzil dismissed Annette Lewis’s argument which sought to keep her spot on an organ transplant waitlist after doctors said she was no longer eligible to remain on the waitlist because she is not vaccinated against COVID-19.

Justice Belzil ruled against Lewis’s claim that her charter rights had been violated, stating that the charter does not apply to clinical treatment decisions and has no application to doctors establishing criteria for organ transplants. 

CBC reports that Annette Lewis was diagnosed in 2018 with a chronic, progressive disease with no known cure and that doctors told her her only hope for survival was an organ transplant.

After testing, Lewis was deemed healthy enough to qualify for an organ transplant and was told at the beginning of 2020 to get a series of vaccinations, which she complied with.

However, while still on a waitlist for the organ transplant in March 2021, Lewis was told it was now required to get vaccinated against COVID-19 in order to remain on the organ waitlist.

In a sworn affidavit Lewis said that the doctor, “told me if I did not take the COVID-19 vaccine, I would not get the transplant, and if I did not get the transplant, I would die,”.

Lewis told the court that she was concerned about the side effects linked to the vaccines and that “Taking this vaccine offends my conscience,”.

She attested “I ought to have the choice about what goes into my body and a life-saving treatment cannot be denied to me because I chose not to take an experimental treatment for a condition — COVID-19 — which I do not have and which I may never have.”

During an injunction hearing in June, Lewis’s lawyer told the court that Lewis “wants to survive, and she doesn’t want to do anything that’s going to jeopardize her survival,”.

In response to the court filing, Alberta Health Services and the hospital involved in Lewis’s case filed evidence about the transplant program, how patients are chosen, the risks of COVID-19 infections to a transplant recipient and how COVID-19 vaccines are safe and effective, CBC reported.

The court also heard how 1 in 5 people on the organ transplant list in Edmonton, Alberta die before an organ transplant becomes available. 

The court was also told that patients can also be rejected on the basis that the transplant would increase the patient’s risk of death without a meaningful chance of improving the quality and duration of life. 

Lewis’s lawyer provided evidence that contradicts the claims by Alberta Health Services and Lewis’s doctors from two faculty members at the University of Guelph’s Ontario Veterinary College, Bonnie Mallard, a professor specializing in animal immunology, and Byram Bridle, a viral immunologist, the Edmonton Journal reports.

In Justice Paul Belzil’s ruling, he conceded that it was “beyond dispute” that Lewis is the sole decision maker about her medical procedure decisions and what goes into her body, but that he does not accept “that her beliefs and desire to protect her bodily integrity entitle her to impact the rights of other patients or the integrity of the [transplant program] generally,”.

Adding that “No one has a right to receive [organ] transplants and no one is forced to undergo transplantation surgery.”

“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,”.

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