Alberta Court of Appeal rules transplant candidate must follow mandatory Covid-19 vaccine policies

An Alberta Court of Appeal panel has ruled a transplant candidate must follow mandatory Covid-19 vaccine policies set out by Alberta Health Services and transplant doctors, saying the guidelines don’t breach the Canadian Charter of Rights and Freedoms.

“This is not the first time medical judgments about allocation of scarce resources have been made in the face of competing needs,” Justice Frederica Schutz, Justice Michelle Crighton and Justice Dawn Pentelechuk wrote in a judgement released on Nov. 8.

“While such decisions are doubtless exceedingly difficult, they nevertheless must be made. In this case, the Charter does not apply to the respondents’ exercise of clinical judgments in formulating pre-conditions to [organ] transplant, including requiring vaccination against COVID-19 in the wake of the pandemic.”

The decision "emphasizes that vaccination status is a choice and that choice can have consequences," says Tim Caulfield, a professor in the faculty of law and school of public health at the University of Alberta. "Given misleading rhetoric about discrimination against unvaccinated, this point is key. There is so much vaccine information, including misinformation about the relevant legal principles. The decision provides some needed clarity."

Caulfield adds the decision "also clarifies that individual clinical decisions and the science-informed standard of care is likely outside Charter scrutiny."

Sheila Annette Lewis challenged the vaccine mandates that AHS and her transplant doctors imposed, requiring her to receive Covid-19 vaccines before she could receive the operation.

An appeal of earlier rulings was heard on October 20, 2022. Lewis argued that the Covid-19 vaccine policy infringed on her Charter-protected rights of conscience, life, liberty and security of the person, and equality rights.

Lewis also argued that the lower court erred in finding that the Alberta Bill of Rights did not apply to Covid-19 vaccine policies. However, the court did not deal with this ground of appeal.

Instead, it ruled: “We are not persuaded this court can, or ought to, interfere with generalized medical judgments or individualized clinical assessments involving [Lewis’] standard of care. In the circumstances of this appeal, while [Lewis] has the right to refuse to be vaccinated against COVID-19, the Charter cannot remediate the consequences of her choice."

This case is under a publication ban, so the names of the doctors, the hospital, the city where the transplant program is located, or the name of the organ Lewis needs for a transplant operation can’t be published.

Lewis was accepted into the transplant program on May 4, 2020, and placed on the transplant waitlist as “Status 1” on May 20, 2020. Her status was changed to “Status 2” on October 5, 2020. She remained on the “Status 2” waitlist without finding a suitable donor until November 2021, when she was moved to “Status O” because of her decision not to get a COVID-19 vaccine.

Doctors had told Lewis in March 2021 that she would have to take the COVID-19 vaccine to receive a transplant. They said being unvaccinated against COVID-19, in the absence of a valid medical exemption, is a contraindication to organ transplantation based on the following factors:

• The significant morbidity and mortality risk that COVID-19 presents to unvaccinated and highly immunosuppressed [organ] transplant recipients;
• The program’s responsibility to donors and donor families to use donated organs in a manner that provides the best possible outcomes for the graft;
• The risk that an unvaccinated transplant recipient would pose to other transplant recipients during routine post-operative care;
• The scarcity of donors in the context of other vaccinated candidates who could also benefit from a given donor organ;
• The demonstrated safety, both in initial studies and now surveillance data, of the currently approved and available COVID-19 vaccines, which present negligible risk to [organ] transplant candidates;
• The attenuated response and resultant protection if the vaccine is administered after transplant; and
• The demonstrated benefit of COVID-19 vaccination before transplant vs. after transplant.

The COVID-19 vaccine requirement is in keeping with a November 2021 national consensus statement on “COVID vaccination in [organ] transplant candidates” from the Canadian Society of Transplantation.

In making its decision, the appeal court decision states that “no one impugns Lewis’ right to refuse to be vaccinated against COVID-19.” As a competent adult, “she is entitled to decide what to put into her body.” Instead, the question is whether “one discrete requirement - namely, that Lewis obtain a COVID-19 vaccination - attracts Charter scrutiny.”

After completing its analysis, the appeal court panel concluded that “setting [organ] pre-transplantation criteria is the result of myriad clinical and medical factors, including the collective judgment of numerous specialized medical and other personnel acting in concert to determine the standard of care for all patients on the [organ] transplant waitlist,” including Lewis.

“In our view, the respondent physicians’ decisions made in respect of Lewis are quintessentially clinical, made to maximize the best use of a scarce resource and the best possible outcome for Lewis, with the greatest chance of a life free from life-threatening complications, through science-based and medical consensus-based management of all possible identifiable risks.”

Lewis argued that the COVID-19 vaccine requirement violates all three rights protected Section 7 of the Charter - life, liberty, and security of the person – but the court disagreed.

“We reject Lewis’ contention that transplant program physicians or other respondents have deprived her of the right to life by imposing on her an increased risk of death,” the judges wrote in their decision in. “In order for a claimant to establish a deprivation of a Section 7 right, a sufficient causal connection must exist between the state action and the prejudice suffered. Here, no sufficient causal connection exists. It is one thing to assert that the state is unlawfully prohibiting one from accessing life-saving treatment; it is quite another for Lewis to selectively choose which treatment criteria she will comply with.”

The three-judge panel added: “The unfortunate reality is this: Lewis is dying because she has a terminal illness.”

The ruling also states that 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. 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.”

In a news release, Lewis’ legal counsel Allison Pejovic said, “we are deeply disappointed with today’s decision.” She added her client “has fought against this discriminatory policy not only for herself, but for all transplant candidates who are similarly being discriminated against.”

Pejovic said the court decision will be reviewed, and an appeal to the Supreme Court of Canada is being considered.