Clinical Treatment Decisions

"I've got a lot to live for. I have grandchildren, I have children. Like, they're grown men, but they're my kids."

"Taking this vaccine offends my conscience. 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."

Sheila Annette Lewis, 58, Alberta resident

Sheila Annette Lewis in an undated photo. Photo by Family handout

"[Should the court order the medical system to allow her a transplant despite her having chosen to spurn its conditions, there would be] significant adverse public policy implications."

"The proposition that Treatment Physicians exercising clinical judgment would be subject to the Charter would result in medical chaos, with patients seeking endless judicial review of clinical treatment decisions."

Alberta Court of King's Bench

 

"While Ms. Lewis has the right to refuse to be vaccinated against COVID-19, the Charter cannot remediate the consequences of her choice."

Alberta Court of Appeal

Supreme Court of Canada declines to hear challenge to Covid-19 vaccine mandate for transplant candidates   JCCF

Denied an organ transplant when she refused to receive a COVID-19 vaccine pre-surgery, Sheila Annette Lewis has died. She had been crowdsourcing funding for the purpose of travelling to the United States for an organ transplant. The Justice Centre for Constitutional Freedoms announced her death, and that her plan to seek a transplant where she would not be required to be inoculated beforehand was thus rendered immaterial.

Sheila Annette Lewis was diagnosed in 2018 with a terminal illness, placed on the transplant wait list for her province of Alberta. While awaiting a date assigned to her for the transplant, she undertook to update a number of childhood vaccinations, a condition that was a pre-requisite to receive an organ transplant.

She was informed in 2021 that she would require as well the COVID-19 vaccine to enable her to undergo the needed transplant procedure. The medical argument was that in recognition of high risks of death following a transplant and the immunosuppressed condition of transplant patients, the vaccine for COVID-19 was considered to be a crucial requirement.

Unconvinced by the rationality of the experienced scientific view, Sheila Annette Lewis refused the vaccine, and decided to sue Alberta Health Services. In the event, the courts refused to order the medical system to allow her the transplant under her conditions, not that of the medical community. She appealed the judgement of the Alberta Court, but then the Alberta Court of Appeal also ruled against her.

She decided to continue fighting for what she considered her rights under the Constitution and the medical allocation of scarce transplant resources, as an individual requiring the potentially life-saving procedure, and exercising her right as an individual to spurn the medical requirement of a vaccine prior to surgery. The Supreme Court of Canada declined to hear her case, however.

Despite that a libertarian legal group resisting a number of public-health measures and charges in court, had argued persuasively that their client had achieved natural immunity from a prior COVID-19 infection. "If Ms. Lewis does not get her transplant, she will not survive, and her family will lose years of time with their mother, wife, and grandmother", wrote her Justice Centre lawyer.

Once the courts had turned down her appeal, raising funds for an organ transplant in the United States consumed Ms. Lewis's attention. On GiveSendGo, a fundraising website, she wrote that she had located an American hospital that would agree to an organ transplant without the required vaccination. Her page on the site had reached $124,776 in sympathetic donations just before her death.

An Alberta woman who tried to take her fight over COVID-19 vaccine requirements for organ transplants all the way to the Supreme Court has died. (Nathan Denette/The Canadian Press)

The Principle of Preservation

"The proposition that treating physicians exercising clinical judgment would be subject to the charter would result in medical chaos with patients seeking endless judicial review of clinical treatment decisions."

"If the plaintiff is successful [in her application], the result would be to create two classes of organ recipients, one for the applicant and another for all other recipients who voluntarily complied with all of the surgical preconditions. this would result in unfairness to the other recipients."

Court of Queen's Bench Justice Paul Belzil, Edmonton, Alberta

 

"[I] ought to have the choice about what goes into my body."

"A life-saving 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."

Annette Lewis, 57, transplant patient

 

"[Transplant patients who receive a COVID vaccination after the procedure show] significantly less immunologic response to COVID-19 vaccinations and therefore less protection when vaccinated post-transplant."

"[One cohort of patients unable to receive a pre-transplant COVID vaccine and later caught the virus suffered a 40 percent mortality rate]."

Group statement of six doctors named in the Lewis lawsuit

An Alberta judge ruled Tuesday that it's not unconstitutional to deny an organ transplant to a woman who refuses to get the COVID-19 vaccine. (Frederic J. Brown/AFP/Getty Images)

 

In 2019 the Edmonton woman was diagnosed with a life-altering condition, with one of her internal organs (unnamed for privacy purposes) failing, making it imperative to prolong her life, that she be placed on an urgent transplant list. Annette Lewis attended the transplant program at her local hospital and was upgraded to the highest priority wait-list for an urgent transplant procedure. In March of 2021 doctors informed  the woman she would require a COVID vaccine prior to undergoing surgery.

Because she adamantly refused to be inoculated against COVID, Ms.Lewis's transplant surgery was put off until such time that she might change her mind. This did not happen. She chose instead to take Alberta Health Services and the six doctors involved in her medical treatment to court for their decision to be overturned, allowing her the transplant without being vaccinated. Despite that Ms.Lewis, having undergone all preconditions for surgery including a round of prescription medications including a repeat of close to a dozen childhood vaccinations, she steadfastly refused to be vaccinated against SARS-CoV-2.

Taking the vaccine, she said, "offends her conscience". Circumstances which the presiding justice spoke of as "very sad", but rejected the purpose that Ms.Lewis had assigned to the court; to rule against the six doctors and Alberta Health Services. Alberta Health Services along with the doctors responded that organ transplant patients are at greater risk of dying from COVID-19, as a result of the immune-suppressing drugs needed in prevention of a patient's body rejecting the transplanted organ.

 

Beyond which, the doctors noted the transplant program heeds a moral duty that donors, their loved ones and other transplant recipients, have confidence that scarce organs are allocated in a manner to ensure the most success of short- and long-term survival. A wait-list mortality rate of 20 percent is attached to the program that Ms.Lewis joined; in other words, one in five patients die while awaiting transplant.

 

During a hearing before Justice Belzil delivered his verdict turning down Ms.Lewis's application, lawyers for Alberta Health Services made use of expert evidence from doctors with Johns Hopkins University and Toronto's Ajmera Transplant Centre, along with that of Michael Houghton, University of Alberta's Nobel-prize-winning virologist and vaccinologist. Ms.Lewis made use of two anti-vaccine personalities associated with the anti-mandate Canadian COVID Care Alliance.

"[It is a question of whether physicians, who are legally] independent contractors [directly liable to their patients, are] free to decide which expert opinions they accept in exercising their clinical judgment."

"In order for the medical system to function properly, treating physicians who are providing clinical advice, must be free to do so and are not governed by the charter but rather by the standard of care which is owed to every patient."

"It is beyond dispute that the applicant is the sole arbiter of what goes into her body."

"I do not accept however, that her beliefs and desire to protect her bodily integrity entitle her to impact the rights of other patients or the integrity of the [transplant program] generally."

Justice Paul Belzil