CARPAY: Court ruling a death sentence for unvaccinated transplant candidate

Sheila Annette Lewis has idiopathic pulmonary fibrosis, a terminal condition. Without an organ transplant, she will certainly die.

Alberta Health Services (AHS) funds, runs, manages, and delivers health care, which includes the organ transplant program and the doctors working in it. Unwritten policies of both AHS and the transplant physicians require transplant candidates to receive the Covid vaccine, for which no long-term safety data exists, to receive their new organs. One of Ms. Lewis’ treating physicians advised her in November 2021 that AHS required Covid vaccination for transplant candidates.

Ms. Lewis and AHS agree on the safety and efficacy of childhood vaccines which have been around for more than 30 years, and for which there is plenty of long-term safety data.

But the safety and efficacy of the Covid-19 vaccines is far from settled. For example, the U.S. Food and Drug Administration has just limited the use of the Johnson and Johnson Covid-19 vaccine in the United States due to persistent reports of blood clotting. Scientists continue to learn new things about these new vaccines.

A large volume of medical and scientific expert evidence was placed before Justice Belzil, who was asked to judge the merits of the government’s claim that Covid vaccines are effective and safe, and that they are truly necessary for organ transplant patients.

Expert reports from immunologists, including a vaccinologist, were filed with the court, showing that Covid vaccines are and will be in clinical trials until late 2022 or beyond.

Another expert report from a surgeon with a Master’s degree in health care ethics indicated that the benefit of vaccination for Ms. Lewis was so small that it was unethical to require her to be vaccinated prior to her transplant.

Those hoping to see the court’s thoughtful analysis of the medical evidence and the court’s probing search for scientific truth — followed by a conclusion that explains why one side’s evidence is more persuasive evidence than the other side — will be disappointed. Rather than explaining why the evidence put forward by Ms. Lewis was right or wrong, or stronger or weaker than the government’s evidence, Justice Belzil instead declared that the safety and efficacy of the Covid-19 vaccine is irrelevant to the case.

Lawyers on both sides of this file, along with expert witnesses, spent hundreds of hours of time to assemble the scientific evidence for and against the government’s claim that these new vaccines are "safe and effective." Justice Belzil essentially dismissed the evidence in its entirety, though he did tip his hat to the government by declaring its evidence to be "overwhelming," without explaining why or how Ms. Lewis’ evidence was not "overwhelming."

The only thing that really matters, says Justice Belzil, is "the exercise of clinical judgment by the treating physicians."

If treating physicians exercising clinical judgment are subject to the Charter, it would "result in medical chaos with patients seeking endless judicial review of clinical treatment decisions," the judge found.

Fair enough, but Ms. Lewis does not argue that the Charter applies to individual decisions made by doctors when treating individual patients.

Rather, Ms. Lewis presented the court with the reality of a policy that organ transplant patients — except those treating physicians determine medically exempt from Covid vaccination — will be removed from the transplant waiting list unless they're vaccinated against Covid. That removal is certain to lead to their death.

For the court to pretend that the denial of life-saving surgery to Ms. Lewis is merely the individual judgment of individual physicians treating an individual patient is to ignore the reality of a government policy that applies to all patients.

This cruel judgment upholds the medical coercion to which Ms. Lewis has already suffered for more than a year. This ruling is founded on Justice Belzil’s unwillingness to actually consider, analyze, and weigh the scientific evidence which Ms. Lewis and AHS placed before the court.

It is interesting to read Justice Belzil’s repeated exaltation of the doctor-patient relationship as resting appropriately beyond the reach of government, such that the Charter does not apply to the details of how individual doctors choose to treat their individual patients. I agree entirely. So did Alberta’s College of Physicians and Surgeons, prior to 2020, when it allowed individual doctors to exercise their professional judgment when treating individual patients.

Before 2020, the College took no position for or against the controversial "liberation therapy" for multiple sclerosis. Seeking truth and practicing science, doctors freely debated the pros and cons of prescription drugs to treat high cholesterol, and whether baby boys should or should not be circumcised. Doctors were free to debate the nature and gravity of every illness, and the merits of every drug, vaccine, and other treatment.

But no more. Since 2020, Canada’s provincial Colleges have sent threatening letters to doctors who question the government’s narrative on Covid, Covid treatments, lockdowns, Covid vaccines, and related issues. Perhaps the College of Physicians and Surgeons of Alberta will take note of a judge speaking highly about the doctor-patient relationship, and how it should be respected by government, including government bodies like the provincial medical Colleges.

But doctors’ free expression rights and the restoration of scientific debate will have to wait to be addressed in other court cases. In the interim, Ms. Lewis remains the victim of medical coercion.

Lawyer John Carpay is president of the Justice Centre for Constitutional Freedoms (jccf.ca) whose lawyers represented Sheila Annette Lewis in these court proceedings.