Smith Seeking Second Medical Opinion on Woman Denied Transplant Operation Due to COVID-19 Vaccination Status

Alberta Premier Danielle Smith holds her first press conference in Edmonton on Oct. 11, 2022. Jason Franson/The Canadian Press

Alberta Premier Danielle Smith says she is seeking a second medical opinion concerning a woman who sued Alberta Health Services (AHS) and her transplant doctors for denying her a life-saving organ transplant unless she first receives COVID-19 shots.

The premier was asked during a press conference on Nov. 29 about Sheila Annette Lewis, who recently lost her appeal in the Alberta Court of Appeal in which the judge ruled that a transplant candidate must follow mandatory COVID-19 vaccine policies.

“I am seeking a second opinion on that particular case. And I know that there is at least one other case as well,” Smith said. “So as soon as I have a result from them, I will let you know.”

Smith, who told reporters on Nov. 28 that she personally made phone calls to organizations urging them to “reconsider” any discriminatory vaccination policies against unvaccinated Albertans, reiterated her position on Tuesday.

“We do not want to see discrimination against anybody on the basis of their booster status or their vaccination status,” she said. “And I’m hopeful that the business community and other entities operating in this province have heard that message loud and clear, and we'll make sure to bring their policies into alignment with that objective.”

‘Charter Does Not Apply’

On Nov. 8, the Alberta Court of Appeal upheld a lower court’s ruling in July that the COVID-19 vaccine policies set out by AHS and Lewis’s transplant doctors don’t breach the Charter of Rights and Freedoms.

“This is not the first time medical judgments about allocation of scarce resources have been made in the face of competing needs,” wrote Justice Frederica Schutz, Justice Michelle Crighton, and Justice Dawn Pentelechuk in their ruling.

“While such decisions are doubtless exceedingly difficult, they nevertheless 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 Justice Centre for Constitutional Freedoms (JCCF), which represented Lewis, said their client has argued that the vaccine policy “infringed on her Charter-protected rights of conscience, life, liberty and security of the person, and equality rights.”

“Ms. Lewis also argued that the lower court erred in its finding that the Alberta Bill of Rights did not apply to COVID-19 vaccine policies because the Charter didn’t apply. The Court of Appeal did not deal with this ground of appeal or make any findings in respect of it,” said JCCF in a press release the day after the judgment was released.

‘She Will Certainly Die’

The appeal court’s decision means that Lewis may be removed from the transplant waitlist unless she gets the vaccines. Lewis was diagnosed with a terminal condition and “without an organ transplant, she will certainly die,” JCCF said in a July press release.

The legal advocacy organization added that the doctors Lewis is suing are a team of specialists who work within an organ transplant program funded by AHS.

“This case is under a publication ban. Due to a Court Order, the Justice Centre may not reveal the names of the doctors, the hospital, the city where the transplant program is located, or the name of the organ that Ms. Lewis needs for life-saving surgery,” the July release said.

Allison Pejovic, JCCF legal counsel for Lewis, said they are “deeply disappointed” with the decision made by the appeal court.

“Ms. Lewis has fought against this discriminatory policy not only for herself, but for all transplant candidates who are similarly being discriminated against. We will review the decision further and consider an appeal to the Supreme Court of Canada,” the lawyer said in a statement on Nov. 8.

Smith noted there are protocols to follow in regard to organ transplant operation and will require another opinion.

“The difficulty with transplant patients is that they do have a protocol they go through to determine who has the best likelihood of survivability and so that’s why I need to have a second medical opinion,” she said.

“I don’t want to supersede them, so I’m very hopeful that we'll be able to get an opinion in the matter [in] a number of weeks.”

Marnie Cathcart contributed to this report.