Court of Appeal at the Edmonton Law Courts building is shown on June 28, 2019. Alberta’s Court of Appeal has dismissed the case of a woman who was unable to get an organ transplant because she refused to take a COVID-19 vaccine. THE CANADIAN PRESS/Jason Franson

Alberta Court of Appeal dismisses unvaccinated woman’s case for organ donation

Alberta’s Court of Appeal has upheld the requirement that eligible transplant recipients be vaccinated against COVID-19, saying the stipulation did not violate the charter rights of a woman who refused to get a dose.

Annette Lewis filed a legal challenge against Alberta Health Services, doctors and a hospital earlier this year after she was unable to get a lifesaving organ transplant due to her unwillingness to be vaccinated.

“Being vaccinated against COVID-19 is a necessary component of proper medical care for individuals, including Ms. Lewis, who are seeking an (organ) transplant,” the Court of Appeal ruled Tuesday.

There is a publication ban on the doctors’ identities, the organ involved and the location of the transplant program.

Lewis was diagnosed with a terminal disease in 2018 and was told she would not survive unless she received an organ transplant.

She was placed on a transplant wait-list in 2020, but was informed a year later she would need to get the COVID-19 vaccine to receive an organ.

“Taking this vaccine offends my conscience,” Lewis said in an affidavit submitted to court.

“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.”

Lewis argued the vaccine requirement violates her charter rights to life, conscience, liberty and security of the person.

The case was dismissed in Court of King’s bench earlier this year with Justice Paul Belzil ruling that standard of care must be the same for all potential recipients or it could result in “medical chaos.” Belzil said the charter has no application on clinical treatment decisions, in particular for doctors establishing preconditions for organ transplants.

The Court of Appeal agreed with Belzil, ruling the COVID-19 vaccine is part of the medical treatment for people seeking an organ transplant.

The ruling said Lewis’s charter rights were not breached. She can refuse the vaccine, the ruling said, but there are consequences with that decision. A patient’s decisions can result in serious risks or consequences, including death, but those are not caused by the health-care providers, the ruling said.

“We are deeply disappointed with today’s decision,” Allison Pejovic, Lewis’s lawyer, said in a news release from the Justice Centre for Constitutional Freedoms.

“Ms. Lewis has fought against this discriminatory policy not only for herself, but for all transplant candidates who are similarly being discriminated against.”

Pejovic said the group is reviewing the decision and will consider an appeal to the Supreme Court of Canada.

The Alberta-based legal advocacy group has represented individuals, organizations and churches that are challenging COVID-19 public health orders and decisions across the country.

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