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Charter fight over denial of liver transplants to alcohol-abusers can proceed, Ontario court rules

The Toronto Star with Constance MacIntosh & Martha Jackman 24 October 2019


An Ontario judge has given a widow the green light to pursue a Charter challenge against a Toronto hospital that refused to perform a liver transplant on her dying husband because he was an alcoholic.

Debra Selkirk, whose husband Mark died in November 2010, joined forces with the relatives of another man who passed away after being denied a liver transplant, and will now be able to argue that the widespread practice of requiring recipients to be sober for six months is discriminatory and a violation of the Canadian Charter of Rights and Freedoms.

In his ruling on Thursday, Superior Court Justice Andras Schreck rejected arguments made by the University Health Network that the charter does not apply to it because it’s a private entity and not part of the government.

The Charter, Schreck ruled, may apply in cases where actions of a private entity are related to a specific governmental program or policy.

“This is especially true of cases involving hospitals,” Schreck said. “In these circumstances, it is far from ‘plain and obvious’ that the charter does not apply.”

The ruling is based on a pair of Supreme Court cases in the 1990s which found that hospitals are private entities and not subject to the Charter when managing their internal affairs, but when they are delivering health care, they must respect the Charter, said Martha Jackman, a law professor at the University of Ottawa.

“The provinces have delegated to the hospital the responsibility for carrying out this fundamentally important government program: health care,” she said. “The hospitals, when they make decisions that affect patients’ access to health care in a discriminatory way, then that’s Charter-reviewable.”

“Any suggestion by that Toronto hospital group that the Charter would not apply to a decision they’re making around rationing of health care is completely unsustainable,” said Jackman.

“It’s a very clear precedent.”

Constance MacIntosh, a professor at the Schulich School of Law at Dalhousie University said the law allows for discrimination in the delivery of health care, but it must be based clinical evidence.

“If any institution is delivering a government-mandated program or service, they can’t draw distinctions that aren’t justified. They need evidence,” she said. “If the distinction is just born out of stereotype, or it’s just arbitrary, then you’re definitely at risk of violating the charter.”

The Trillium Gift of Life Network is responsible for overseeing organs donations and transplants in the province. It also sets the rules for who is eligible to receive an organ and does not allow people with livers damaged by alcohol to receive transplants unless they have been dry for at least six months.

Last year, under pressure from Selkirk, the agency softened that stance and launched a three-year pilot program to study outcomes of certain alcoholics who qualify to receive liver transplants.

“The current protocol is the global best practice in liver transplant, although, as you’ve noted, some countries and transplant programs are evolving their practices,” said Trillium spokesperson Margaret Barng.

Several high-profile studies have called into question the validity of excluding alcoholics, showing their outcomes after transplants to be similar to sober recipients. Last year, researchers at Johns Hopkins University in Baltimore found that transplant recipients who had been sober for six months relapsed into alcoholism at the same rate at those who did not undergo the sober waiting period.

“Anyone with liver disease deserves proper care and treatment,” said Canadian Liver Foundation spokesperson Veronica Herfindahl.

Because livers are scarce, criteria are important to ensure the best outcomes for recipients, she said.

“There are medical reasons for these restrictions. In the case of alcohol-related liver disease, the restrictions are not intended to be punitive, but are in place in the best interests of the patients and the program.”

Earlier this year, B.C. eliminated the six-month abstinence period for liver transplant recipients.

Jackman, who intervened in one of the Supreme Court cases establishing that the Charter applies to the delivery of health care, said she believes the ruling extends beyond hospitals.

“I have argued that … not only does the Charter apply to hospitals, but it applies to any health care professional, including physicians, that are delivering publicly-funded services.”

While there is very little case law testing how far the Charter might reach into private institutions that provide public services, Jackman suggested universities might be next.

“When they are acting as delegates of Canadian governments to deliver government services, the Charter applies.”

Constance MacIntosh is a law professor at Dalhousie University.  Martha Jackman is a law professor at the University of Ottawa.