Publication date: Nov 08, 2022 • 1 hour ago • 4 min read • 103 comments Annette Lewis is suing AHS and several doctors after she was removed from the first tier of the organ transplant waiting list for refusing a COVID vaccine. The Alberta Court of Appeal sided with AHS on Nov. 8, finding that clinical decisions are not subject to charter review. jpg

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The Alberta Court of Appeal has thrown out the case of a terminally ill woman who refuses to receive a COVID vaccine as a condition for a major organ transplant.

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Annette Lewis lost her bid Tuesday to be reinstated to the top of the transplant queue, with a three-judge appeals court unanimously upholding a lower court ruling that clinical decisions are not subject to statutory review. Sign up to receive daily news headlines from the Edmonton Journal, a division of Postmedia Network Inc. By clicking the subscribe button you consent to receive the above newsletter from Postmedia Network Inc. You can unsubscribe at any time by clicking the unsubscribe link at the bottom of our emails. Postmedia Network Inc. | 365 Bloor Street East, Toronto, Ontario, M4W 3L4 | 416-383-2300

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“This is not the first time medical judgments have been made about the allocation of scarce resources in the face of competing needs,” the court wrote. “While such decisions are undoubtedly extremely difficult, they must be made nonetheless.” “In this case, the charter does not apply to (physicians’) exercise of clinical judgment in setting conditions for organ transplantation, including requiring vaccination against COVID-19 in the wake of the pandemic.” “We are not persuaded that this court can, or should, interfere with generalized medical judgments or individualized clinical assessments concerning Ms. Lewis’s pattern of care,” he concluded. “While Ms. Lewis has the right to refuse to be vaccinated against COVID-19, the charter cannot remedy the consequences of her choice.”

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The Justice Center for Constitutional Freedoms — the legal group that represents Lewis and has challenged the government’s COVID policies throughout the pandemic — said it was “deeply disappointed” by the decision and would consider an appeal to the Supreme Court of Canada.

“Medical Chaos”

Lewis suffers from a “progressive and debilitating” illness of unknown cause. Without a new organ (the identity of which is covered by a publication ban to protect the identities of Lewis’ treatment team) it is a “virtual certainty” she will die, the appeals court said. Lewis was accepted into the transplant program in May 2020. That October, she was moved to the top of the waiting list after an evaluation determined that her health was deteriorating and that she would benefit more from a transplant.

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However, in March 2021, Lewis was told she would have to get a COVID-19 shot to keep her spot on the list. Lewis refused – despite having all the other required vaccines – calling the shot “experimental” and saying it violated her conscience. It was moved to the bottom of the list last November, where it remains. Lewis launched legal action seeking reinstatement to the top of the list, as well as a declaration that the vaccine requirement breached her rights under sections 2, 7 and 15 of the Charter of Rights and Freedoms. During a hearing before Justice of the King’s Bench Paul Belzil this summer, JCCF lawyer Allison Pejovic tried to point out that her client is not a conspiracy theorist, follower or supporter of the Ottawa convoy. He argued that Lewis was being forced to take an unproven drug, presenting evidence from two immunologists at the Ontario College of Veterinary Medicine associated with the Canadian COVID Care Alliance anti-mandate.

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AHS lawyers and doctors, on the other hand, have argued that vaccines are safe and effective and vital to the safe operation of transplant programs since the arrival of COVID. They cited a national consensus statement — developed in November 2021 and subsequently accepted by all Canadian transplant programs — that found a 25-30 percent mortality rate in patients infected with COVID after organ transplants. Respondents argued that since organs are scarce, transplant programs must do their best to balance the needs of the patient with the needs of other patients, organ donors, and their families. Programs also have an obligation to minimize the risk that an unvaccinated patient will pose to other transplant recipients.

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Belzil made no findings regarding the safety and efficacy of the vaccines. However, it ultimately sided with the respondents, finding that subjecting clinical decisions to chart review would create “medical chaos,” with patients seeking “endless judicial review of clinical treatment decisions.”

Top down or bottom up?

Lewis’ appeal of Belzil’s ruling was heard last month by Justices Frederica Schutz, Michelle Crighton and Dawn Pentelechuk. Pejovich argued that Belzil made a fundamental error in finding that the vaccine requirement was a clinical decision rather than a “top-down” imposition by AHS, thereby opening the case to map scrutiny. The high court disagreed, agreeing with Belzile that there was no evidence “AHS articulates medical criteria which then irrevocably and arbitrarily bind physicians as governmental agents or agents.”

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While finding that the charter did not apply to the case, the court nevertheless clarified and rejected each of Lewis’ claims that the vaccine requirement violated her rights to life, liberty, and security of the person. The justices also rejected Lewis’ claim that the requirement violates her right to equality before the law, which protects against discrimination based on race, national or ethnic origin, color, religion, sex, age, or mental or physical disability. Lewis argued that the department protected her based on “medical condition” — a claim the appeals court rejected. “Ms. Lewis’s vaccination status for COVID-19 is not what it is,” the court wrote. “It is not an immutable personal characteristic … her choice not to get vaccinated against COVID-19 is just that — a choice.” . [email protected] twitter.com/jonnywakefield

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title: “Court Rules Against Woman Who Refused Pre Transplant Covid Vaccine " ShowToc: true date: “2022-11-03” author: “Andre Drexler”

Publication date: Nov 08, 2022 • 1 hour ago • 4 min read • 113 comments Annette Lewis is suing AHS and several doctors after she was removed from the first tier of the organ transplant waiting list for refusing a COVID vaccine. The Alberta Court of Appeal sided with AHS on Nov. 8, finding that clinical decisions are not subject to charter review. jpg

Content of the article

The Alberta Court of Appeal has thrown out the case of a terminally ill woman who refuses to receive a COVID vaccine as a condition for a major organ transplant.

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Content of the article

Annette Lewis lost her bid Tuesday to be reinstated to the top of the transplant queue, with a three-judge appeals court unanimously upholding a lower court ruling that clinical decisions are not subject to statutory review. Sign up to receive daily news headlines from the Edmonton Journal, a division of Postmedia Network Inc. By clicking the subscribe button you consent to receive the above newsletter from Postmedia Network Inc. You can unsubscribe at any time by clicking the unsubscribe link at the bottom of our emails. Postmedia Network Inc. | 365 Bloor Street East, Toronto, Ontario, M4W 3L4 | 416-383-2300

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“This is not the first time medical judgments have been made about the allocation of scarce resources in the face of competing needs,” the court wrote. “While such decisions are undoubtedly extremely difficult, they must be made nonetheless.” “In this case, the charter does not apply to (physicians’) exercise of clinical judgment in setting conditions for organ transplantation, including requiring vaccination against COVID-19 in the wake of the pandemic.” “We are not persuaded that this court can, or should, interfere with generalized medical judgments or individualized clinical assessments concerning Ms. Lewis’s pattern of care,” he concluded. “While Ms. Lewis has the right to refuse to be vaccinated against COVID-19, the charter cannot remedy the consequences of her choice.”

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The Justice Center for Constitutional Freedoms — the legal group that represents Lewis and has challenged the government’s COVID policies throughout the pandemic — said it was “deeply disappointed” by the decision and would consider an appeal to the Supreme Court of Canada.

“Medical Chaos”

Lewis suffers from a “progressive and debilitating” illness of unknown cause. Without a new organ (the identity of which is covered by a publication ban to protect the identities of Lewis’ treatment team) it is a “virtual certainty” she will die, the appeals court said. Lewis was accepted into the transplant program in May 2020. That October, she was moved to the top of the waiting list after an evaluation determined that her health was deteriorating and that she would benefit more from a transplant.

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However, in March 2021, Lewis was told she would have to get a COVID-19 shot to keep her spot on the list. Lewis refused – despite having all the other required vaccines – calling the shot “experimental” and saying it violated her conscience. It was moved to the bottom of the list last November, where it remains. Lewis launched legal action seeking reinstatement to the top of the list, as well as a declaration that the vaccine requirement breached her rights under sections 2, 7 and 15 of the Charter of Rights and Freedoms. During a hearing before Justice of the King’s Bench Paul Belzil this summer, JCCF lawyer Allison Pejovic tried to point out that her client is not a conspiracy theorist, follower or supporter of the Ottawa convoy. He argued that Lewis was being forced to take an unproven drug, presenting evidence from two immunologists at the Ontario College of Veterinary Medicine associated with the Canadian COVID Care Alliance anti-mandate.

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AHS lawyers and doctors, on the other hand, have argued that vaccines are safe and effective and vital to the safe operation of transplant programs since the arrival of COVID. They cited a national consensus statement — developed in November 2021 and subsequently accepted by all Canadian transplant programs — that found a 25-30 percent mortality rate in patients infected with COVID after organ transplants. Respondents argued that since organs are scarce, transplant programs must do their best to balance the needs of the patient with the needs of other patients, organ donors, and their families. Programs also have an obligation to minimize the risk that an unvaccinated patient will pose to other transplant recipients.

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Belzil made no findings regarding the safety and efficacy of the vaccines. However, it ultimately sided with the respondents, finding that subjecting clinical decisions to chart review would create “medical chaos,” with patients seeking “endless judicial review of clinical treatment decisions.”

Top down or bottom up?

Lewis’ appeal of Belzil’s ruling was heard last month by Justices Frederica Schutz, Michelle Crighton and Dawn Pentelechuk. Pejovich argued that Belzil made a fundamental error in finding that the vaccine requirement was a clinical decision rather than a “top-down” imposition by AHS, thereby opening the case to map scrutiny. The high court disagreed, agreeing with Belzile that there was no evidence “AHS articulates medical criteria which then irrevocably and arbitrarily bind physicians as governmental agents or agents.”

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While finding that the charter did not apply to the case, the court nevertheless clarified and rejected each of Lewis’ claims that the vaccine requirement violated her rights to life, liberty, and security of the person. The justices also rejected Lewis’ claim that the requirement violates her right to equality before the law, which protects against discrimination based on race, national or ethnic origin, color, religion, sex, age, or mental or physical disability. Lewis argued that the department protected her based on “medical condition” — a claim the appeals court rejected. “Ms. Lewis’s vaccination status for COVID-19 is not what it is,” the court wrote. “It is not an immutable personal characteristic … her choice not to get vaccinated against COVID-19 is just that — a choice.” . [email protected] twitter.com/jonnywakefield

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Postmedia is committed to maintaining a lively but civil forum for discussion and encourages all readers to share their views on our articles.  Comments may take up to an hour for moderation before appearing on the site.  We ask that you keep your comments relevant and respectful.  We’ve enabled email notifications—you’ll now receive an email if you get a reply to your comment, there’s an update on a comment thread you’re following, or if a user follows the comments.  Visit the Community Guidelines for more information and details on how to adjust your email settings.