Charter fight over denial of liver transplants to alcohol abusers can proceed

TORONTO — Relatives of two men who were denied liver transplants because of their alcoholism can press their constitutional fight over the hospital’s refusal to perform the surgery, an Ontario court has ruled.

In his ruling, Superior Court Justice Andras Schreck rejected arguments from Toronto-based University Health Network that the charter does not apply to it as a private rather than governmental entity. The charter, Schreck found, 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 now-deceased men, Mark Williams and Mark Selkirk, died from liver disease related to their alcohol consumption. Both were denied potentially life-saving transplants based on their drinking habits.

Under Ontario legislation, the Trillium Gift of Life Network is responsible for fairly rationing scarce organs from dead donors based on need. The agency does not generally allow people with livers damaged by alcohol to receive transplants unless they have been dry for at least six months. The criterion does not apply to liver transplants from living donors.

Nevertheless, the University Health Network, the only hospital that does live-donor transplants, refused to do the surgery based on the Trillium rules. Williams died in May. Selkirk died in November 2010.

Their estates challenged the constitutional validity of the policy that denied them transplants as a violation of their constitutional rights to life and equality. Selkirk’s estate also argued he was subject to cruel and unusual treatment.

In its motion before Superior Court, the health network argued the case should be thrown out on the basis that it’s a private institution and the charter has no application. Its adoption of Trillium’s transplant criteria did not involve implementation of government policy but was rather an internal policy decision, the hospital network said.

Schreck disagreed. In one case, he said, the courts ruled a hospital’s refusal to provide sign-language interpretation ran afoul of the charter on the basis that hospitals carry out governmental objectives under the Canada Health Act and provincial legislation to provide medical services to the public.

“It is neither plain nor obvious that the provision of a (live-donor) liver transplant is not as much a part of the delivery of health care services as is the provision of sign language interpreters,” Schreck said.

The transplant refusals, the judge also said, appeared to be the result of hospital policy rather than the result of a clinical decision by a doctor.

In a related decision, Schreck refused a motion from Trillium to transfer the case to Divisional Court. The challenge is part of a wider fight that involves the University Health Network’s policy, he said.

“It would not be ‘practical and pragmatic’ to bifurcate the proceedings, nor would it be in the interests of justice to do so,” Schreck said.

There have been several challenges in Canada in recent years to policies that deny transplants to drinkers. After advocacy from Selkirk’s wife, Trillium began a three-year pilot project in 2017 under which some of those people could still receive a new organ.

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