Alberta appeal court rejects unvaccinated woman's request to get back on transplant list

A terminally ill woman's bid to be re-added to a transplant list she was removed from for refusing a COVID-19 vaccine has been rejected by Alberta's highest court.

Alberta transplant doctors have made getting the vaccine mandatory for eligibility, but Annette Lewis refuses to be immunized for COVID-19.

There is a court-ordered publication ban that covers the organ Lewis is seeking a transplant for, the names of the doctors, and the hospital's name and location. 

Earlier this year, Court of King's Bench Justice Paul Belzil found that the charter has no application when it comes to the COVID-19 vaccine requirement.

In October, Lewis took her case to the Court of Appeal of Alberta. Her lawyer urged the appellate court to step in, arguing the vaccine requirement was causing Lewis's death by removing the chance for a transplant and the possibility that it would save her life.

Lawyers for Alberta Health Services and the doctors argued that the decision had been made by a clinical team that must make determinations about who is most in need as well as who has the best prospect of survival, citing the nearly 40 per cent death rate of transplant patients who contracted COVID-19 before the vaccines were available. 

The appeal court upheld Belzil's original finding, noting that medical decisions about scarce resources such as donor organs are difficult but 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 appeal judges found. 

Despite deciding that the charter does not apply in this case, the court decided, for the sake of argument, to also provide an opinion on what would happen if the charter did apply – and found that none of Lewis's arguments would prevail. 

Lewis had asserted that by being denied a place on the transplant list, her rights to life, liberty and security were being violated as was her freedom of conscience.

The court denied all of those grounds, noting in its rejection of the right to life argument that while patients have the right to make decisions such as declining a vaccine, but that decision can result in serious risks or consequences.

"It is one thing to assert that the state is unlawfully prohibiting one from accessing life-saving treatment; it is quite another for Ms. Lewis to selectively choose which treatment criteria she will comply with," the decision reads. 

Lewis also argued that she was being discriminated against, and urged the court to find that "medical status" should be protected.

The court declined to do so, finding that what Lewis was actually arguing for was a finding of discrimination on the basis of a COVID-19 vaccination status. 

"Ms Lewis' COVID-19 vaccination status is not who she is," the decision reads.

"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."