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Alberta judge rules requiring COVID-19 vaccination for organ transplant candidates are not unconstitutional

Edmonton Judge Paul Belzil concluded that the charter does not affect clinical treatment decisions or criteria set by organ transplant doctors.JASON FRANSON/The Canadian Press

Requiring an organ transplant candidate to be vaccinated against COVID-19 is not unconstitutional, ruled an Alberta judge, who says changing the rules for such a significant procedure would result in “medical chaos.”

Annette Lewis, who needs a transplant, filed a legal suit in May against Alberta Health Services, a hospital and doctors. She argued that having to take what she described as an “experimental” COVID-19 vaccine to receive the life-saving surgery violated her protected rights under the Canadian Charter of Rights and Freedoms.

A ban on publication includes any naming of the specific organ as well as the hospital and doctors involved.

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In a decision filed Tuesday, Edmonton Judge Paul Belzil dismissed Ms Lewis’ case, concluding that the charter does not affect clinical treatment decisions or criteria set by organ transplant doctors.

“I accept without hesitation that your concerns about the safety and effectiveness of COVID-19 vaccines are real and deep-rooted,” Judge Belzil wrote. “However, I do not accept that their beliefs and desire to protect their physical integrity entitle them to interfere with the rights of other patients or with the integrity of patients [transplant program] general.”

Allison Pejovic, an attorney with the Justice Center for Constitutional Liberties representing Ms Lewis, said the court’s decision was “deeply disappointing” and they are considering appealing. Legal Counsel has filed numerous lawsuits against COVID-19 public health measures across Canada.

Ms Lewis was diagnosed with a terminal condition in 2018 and told a transplant was her only chance of survival. She was placed on the waiting list in June 2020. The 57-year-old underwent extensive testing and agreed to a series of vaccinations in 2020 after her vaccination history could not be located and verified.

But in March last year, she refused to take the COVID-19 vaccine. All other requirements for a transplant are met. In an affidavit, Ms Lewis said taking the COVID-19 vaccine offends her conscience and amounts to medical compulsion.

“I should have a choice about what goes into my body and I cannot be denied life-saving treatment because I have chosen not to take experimental treatment for a condition – COVID-19 – that I do not have and do not have maybe never will have,” she said.

Judge Belzil dismissed that argument.

“No one has a right to receive [organ] transplants, and no one will be forced to undergo transplant surgery,” he wrote in his decision. “It is illogical that the applicant should voluntarily accept all other requirements for a transplant and object to one on the basis of alleged medical necessity.”

The court heard nearly 40 percent of transplant recipients infected with COVID-19 died during the fourth wave of the pandemic between September and November 2021.LUISA GONZALEZ/Reuters

Ms Pejovic said in a statement that Ms Lewis’ illness was worsening. For privacy reasons, she was unable to comment on her client’s state of health in relation to the transplant waiting list.

The defendants submitted evidence on the effectiveness of COVID-19 vaccines and explained the reasons for vaccination and how the organ donation program worked. The program serves patients in Alberta, Saskatchewan, Manitoba, eastern British Columbia, the Northwest Territories and parts of Nunavut. It has been noted that organ donations are scarce and people who need a transplant are at high risk of death both before and after surgery.

A panel of medical experts decides whether a patient is admitted to the program. A person can be refused if an organ transplant “would unreasonably increase the patient’s risk of death without a reasonable chance of improving the length and quality of life,” the decision said.

The court heard nearly 40 percent of transplant recipients infected with COVID-19 died during the fourth wave of the pandemic between September and November 2021. The program’s responsibility to donors is to provide organs to those with the best chance of survival.

The judge also concluded that a successful petition by the plaintiff could have “significant public policy implications” in which treating physicians exercising clinical judgment would be subject to the charter and patients subject to “endless judicial review of clinical treatment decisions.” would require.

“The standard of care for [organ] Transplants must be the same for all potential recipients, who all have the same surgical requirements,” he wrote. “I do not accept that the applicant or any other potential recipient has any right to request that the [transplant program] be changed at their request.”

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