A previous version of this story included details related to Annette Lewis's medical condition that have since been removed to comply with a court-ordered publication ban.
A judge with the Court of Queen's Bench of Alberta has ruled it is not unconstitutional for an organ candidate to be removed from the transplant list over her refusal to take a COVID-19 vaccine.
Earlier this year, Annette Lewis filed an application against Alberta Health Services, an Alberta hospital and several doctors.
She claimed the requirement to take what she called "the experimental COVID-19 injection" as a prerequisite to life-saving surgery is a violation of her fundamental freedom of conscience, right to life, liberty and security, and right to be free from arbitrary discrimination under the Canadian Charter of Rights and Freedoms.
The woman was diagnosed with terminal illness in 2018 and was advised that she would not survive unless she receives a transplant.
Starting in January of 2020, she was advised that she would have to have a series of vaccinations, including childhood vaccinations, as her vaccination history could not be located and verified. She agreed and received multiple vaccinations. She was placed on the waitlist in June of 2020
In March of 2021, Lewis was told that in order to receive an organ transplant, she would have to take the COVID-19 vaccine. To date, she has refused to do so.
In an affidavit filed on May 24, 2022, Lewis stated the following:
“Taking this vaccine offends my conscience. I ought to have the choice about what goes into my body, and a lifesaving 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.”
In the statement of facts in the case, Justice R. Paul Belzil notes that the COVID-19 vaccination is the only precondition for the transplant that Lewis has not met, but she has never asserted that she has a recognized medical exemption from taking the vaccine.
The transplant program explained that organ donors are a scarce resource and that particular organ has a waitlist mortality of approximately 20%, meaning one in five patients waitlisted will die prior to transplant.
It stated that in order to honour the gift from donors and maximize the utility of a scarce treatment resource, the program endeavours to select candidates in a manner that provides organs both to those most in need and who have the best probability of short and long-term survival. This approach recognizes the ethical obligations that the program has to the donor, donor family, recipient and other candidates who could also benefit from the organ.
The program requires that candidates be as medically optimized as possible for a successful transplantation. It also notes that the post-operative immunocompromised state of transplant patients makes a recipient very susceptible to infection.
The statement of fact also points out that COVID-19 has been a significant challenge for the transplant program.
In the fourth wave of the pandemic between September and November 2021, the same program experienced a mortality rate in recipients infected with COVID-19 of nearly 40%. The transplant recipients that died did not have an opportunity for pre-transplant vaccinations and most received their shots after their surgery.
The organ transplant program determined that the absence of valid medical exemption supported by expert consultation is a contraindication to organ transplantation based on several factors including the risk an unvaccinated patient could pose to other transplant recipients.
In his ruling, Justice Belzil said while it is beyond dispute that Lewis is the sole arbiter of what goes in her body and he accepts that her concerns about the safety and efficacy of the vaccines are deeply rooted, he does not accept that her beliefs and desire to protect her bodily integrity entitled her to impact the rights of other patients.
He did not accept that the sincerity and depth of her beliefs create legal rights which otherwise do not exist. He also said no one has a right to receive a transplant.
In the written ruling filed at the Court of Queen's Bench in Edmonton on July 12, Justice Belzil concludes that the Charter has no application to clinical treatment decisions made by the treating physicians, and in particular has no application to the treating physicians establishing preconditions for organ transplantation.
He dismissed the originating application in its entirety.