She seemed crystal-clear at the time. During a May 26, 2021 press conference British Columbia’s Provincial Health Officer Bonnie Henry stated that, “There is no way that we will recommend inequities be increased by use of things like vaccine passports for services for public access here in British Columbia.” She then nodded to Premier John Horgan and Health Minister Adrian Dix, who were sharing the platform with her, in apparent confirmation of their support for her stance.
Yet a little over three months later, Henry found a way to contemplate just such a thing, and was back in front of the public explaining how she intended to implement it. On September 7, she told B.C. residents they would soon be “required to present a B.C. vaccine card” to gain access to a long list of publicly accessible events and services that are deemed non-essential. The apparent goal being to push vaccination rates higher by making it increasingly difficult to remain unvaccinated and still participate in general society. The contradiction between her two statements was jarring enough to inspire a popular video mashup on Twitter.
Henry’s three-month, 180-degree turn on vaccine passports – from discriminatory anathema to absolute necessity – is indicative of a widespread and worrisome hardening of public policy across all aspects of Covid-19 vaccination. The current public health Zeitgeist of “vaccinate everyone at any cost” has squeezed out any room for nuance or reasoned discussion. In Alberta, where the pandemic’s fourth wave has been at its worst among Canadian provinces, the unvaccinated are widely blamed for clogged hospitals and the latest round of cancelled surgeries and procedures. And the desire to push vaccination rates ever-higher is now bulldozing over the rights of some very vulnerable people. Nowhere is this clearer than in the evolution of vaccine passport policy and the role of medical exemptions.
Exemptions Be Gone
Earlier this month, when he was explaining how proof of vaccination will soon be required to travel on federally-regulated airplanes and trains, Prime Minister Justin Trudeau noted that that medical exemptions to these requirements “will be exceedingly narrow, specific, and to be honest, somewhat onerous to obtain.” Such a lack of flexibility is increasingly seen as a feature, not a bug, of vaccine passports. It is a dangerous one.
In Ontario, provincial NDP leader Andrea Horwath expressed her suspicion that two Progressive Conservative MPPs were able to obtain medical exemptions, calling the result “statistically curious.” In Manitoba, the province’s vaccine passport policy was in place for weeks without any provision for medical exemptions until litigation was threatened. On the private level, a Toronto restaurant has self-righteously proclaimed that it won’t accept any medical exemptions, legal or not, because of a suspicion doing so will lead to “abuse.”
Making vaccine passports rigid in ways that prevent reasonable exemptions is bad policy. It damages the sacrosanct relationship between doctor and patient and threatens the civil rights of all Canadians. It is for these reasons that the Canadian Constitution Foundation (CCF), a charitable group of which I am the litigation director, is challenging B.C.’s law in federal court.
Some people are particularly vulnerable to vaccine side effects and, though relatively small in number, a few even risk death by undergoing vaccination. This raises the clear necessity of creating a system for granting exemptions and accommodations.
The Legal Arguments
As in any legal brief, we need to start with some basic principles. Government policies during a pandemic must be designed and governed according to sound medical and scientific advice and evidence. And policies cannot on their face discriminate against our most vulnerable citizens, including the medically vulnerable. If a government wants to assert that vaccine passports are warranted (itself a dubious proposition), it must accommodate medical exemptions.
Any reasonable assessment of the facts reveals that vaccines are neither infallible nor without the possibility of severe side effects. Some people are particularly vulnerable to such side effects and, though relatively small in number, a few even risk death by undergoing vaccination. This raises the clear necessity of creating a system for granting exemptions and accommodations in order to allow individuals who are unable to receive a shot for valid medical reasons to retain the liberty to pursue all the same activities and enjoy the same “public access services” as those with a passport.
Exemption requests should be vetted and scrutinized according to consistent criteria and standards. But making the procedures deliberately “onerous,” to quote the Prime Minister, has serious negative consequences for the many individuals who are hemmed in by them and denied exemptions. The consequences of such a policy are on especially stark display in B.C.
Unlike other provinces, including Quebec and Ontario, the B.C. government has repeatedly said it intends to offer no categorical or automatic medical or religious exemptions at all from its vaccine passport policy – only on an extremely restrictive case-by-case basis. Those few who accordingly assert a right to a medical exemption can expect to be treated with contempt and suspicion, even when their medical conditions are well-documented and their fears well-founded.
The stories that follow – of individuals with severe and obvious medical challenges who are currently working with the CCF to obtain exemptions – represent the consequences of such inflexibility and narrow-mindedness.
Grounded by the Passport
Erica is a teenaged girl who was excited to get her first dose of the Pfizer Covid-19 vaccine in May, shortly after it became available. Four days later, however, Erica woke up with a sharp, stabbing pain in her chest, which grew progressively worse. Erica underwent heart and blood tests. After several hospital visits over several weeks, she was ultimately diagnosed with a form of heart inflammation called pericarditis, which her physicians concluded was likely an adverse reaction to the vaccine.
Her case should be clear-cut. Heart inflammation is a recognized adverse reaction to the mRNA vaccines. Erica should be eligible for an immediate medical exemption from the vaccine passport. (Notably, Quebec explicitly lists pericarditis and myocarditis as valid medical exemptions.) Without one, Erica will not be able to visit public places where teenagers like to hang out, such as movie theatres or restaurants. But Erica has no reasonable expectation of an exemption from the passport directive.
Despite B.C. publicly declaring there will be no exemptions, its vaccine passport policy offers a theoretical route for medical exemptions. But it is so difficult to access in practice as to be nearly impossible. The exemption-seeking person must request a “reconsideration” pursuant to section 43 of the Public Health Act. To be granted a reconsideration, Erica must email the Provincial Health Officer with a signed and dated statement from a medical practitioner, based on a current assessment, that her health would be “seriously jeopardized” if she were to receive a first or second dose of a Covid-19 vaccine. Her letter must include a signed and dated copy of each relevant portion of her health record.
It took weeks and multiple visits to the hospital for Erica to obtain a correct diagnosis, and more time to obtain medical records, get a letter from a physician, and write a persuasive letter to public health. Erica is lucky, because she has a supportive family who can help her in her fight to get a reconsideration, and because she has legal assistance. Many teens are not so fortunate. And the bureaucratic procedure is not the only problem. The B.C. government has also severely limited the reasons for medical accommodation and withheld any discretion on the physician’s part.
The list of “valid contraindications and deferrals” for the Covid-19 vaccine posted by Henry’s office contains just one item: a history of an anaphylactic reaction to components (i.e., ingredients) in both the mRNA vaccines by Pfizer and Moderna and the viral vector vaccines by AstraZeneca and Johnson & Johnson. Of course, AstraZeneca isn’t even an option in other provinces, such as Ontario, where its use has been halted due to heightened clotting risk. And at the time of this writing, Johnson & Johnson isn’t even available in Canada.
So in B.C., anaphylactic patients must choose among three poor options: taking a vaccine with higher clotting risks, waiting for an as-yet-unavailable vaccine, or social exclusion. And patients such as Erica, who developed heart inflammation following a first dose of a vaccine, are eligible only for a deferral, not a permanent exemption. In Ontario or Quebec, Erica would have been granted an exemption.
But if obtaining a medical exemption is a challenge in the most clear-cut case like Erica’s, consider how challenging it is for patients who have more complex medical histories or adverse medical reactions that are more difficult to diagnose.
Nerve Damage Not Enough
Sharon is a woman in her 30s who developed nerve damage, including partial paralysis of her arm, following her first dose of a Covid-19 vaccine. Neurological problems can be complicated and difficult to diagnose, and obtaining a correct diagnosis often involves consultation with multiple doctors and specialists. A correct assessment could take months, and that’s after a specialist referral is completed which, given lengthening Canadian waiting times, can itself take months.
Patients who develop neurological adverse reactions to a Covid-19 vaccine are not considered to have a medical contraindication in B.C. In fact, public health officers have told Sharon she should get the second dose because it is possible her condition may resolve with treatment and is not life-threatening.
Sharon has had repeated appointments with specialists following her adverse reaction, and while her case is complex, her doctors suspect she has a condition called brachial neuritis. They also suspect it is an adverse reaction to her first dose of the vaccine. Because Sharon’s case does not fit clearly into a government check-box, however, she is having difficulty getting official written support from a physician for her exemption request.
Sharon is getting physical therapy to regain movement in her arm. She’s especially concerned because she is now pregnant and wants to be able to hold her baby when it is born. Because of her adverse reaction, she does not want a second dose of the vaccine. There is no guarantee it will not cause further nerve damage, including nerve damage that could hurt her unborn baby. Her physician and neurologist share these concerns.
But patients who develop neurological adverse reactions to a Covid-19 vaccine are not considered to have a medical contraindication. In fact, B.C. public health officers have told Sharon she should get the second dose because it is possible her condition may resolve with treatment and is not life-threatening. Further, if she doesn’t get vaccinated, she will not be able to attend new parent courses at a B.C. community centre because of the passport requirement. The effect is to isolate a new mom with a disability and who wishes she could be vaccinated but can’t because of a medical condition deemed by bureaucrats to be insufficiently serious.
Raising the Risk
In August, Health Canada added a warning of possible Bell’s Palsy to the labels of the Pfizer vaccines. Ontario has reported 229 incidents of Bell’s Palsy since December. In all of Canada there have been 545 known Bell’s Palsy reactions. Bell’s Palsy causes partial paralysis of the face that can last for months. Because it is usually not permanent nor life-threatening, it is not considered an official contraindication against a second vaccine dose. Yet it seems perfectly reasonable for a person who has developed Bell’s Palsy to choose to decline a second dose. And wholly unreasonable for public health organizations to refuse an exemption on such grounds.
Vaccine recipients who have developed Bell’s Palsy as an adverse reaction report being unable to obtain a medical exemption from a second dose because they cannot find a supportive physician. This is an acute challenge in B.C. because the regulator has given what may be described as a “soft warning” to physicians about granting medical exemptions. Two days after the province’s vaccine passport order went into effect in September, B.C.’s College of Physicians and Surgeons sent a letter to doctors requiring that any exemption opinion letter be supported by “objective clinical information about the patient and not simply a repetition of the patient’s self-diagnosis.”
While this might sound reasonable, the practical result has been a chilling effect on doctors. Patients are having difficulty finding a doctor who will support a medical exemption when their adverse reaction to the first dose was neurological in nature or otherwise difficult to diagnose. In these cases, there is little more than a patient’s self-report to go by. As a result, even doctors who are convinced that their patient had an adverse reaction to a first dose have grown reluctant to write a letter at the risk of a professional misconduct investigation.
One such example concerns Veronica, a young woman with a very complex medical history. She has impaired mobility, a genetic disability and contraindications for many medications; she has endured over a dozen surgeries, all of which involved difficult recoveries. Veronica does not react well to medical interventions, and has had so many adverse drug reactions that she has serious and valid concerns about how her body will handle a Covid-19 shot. The vaccine is simply a higher-risk choice for her than it is for a perfectly healthy person.
The patients who are working with the Canadian Constitution Foundation are not anti-vaxxers. Most of them want to get the vaccine and they don’t want their stories used to fuel an anti-vaccine narrative. But they feel compelled to act to protect their own health, wellbeing and even lives.
Because of B.C.’s one-item list of contraindications and the regulatory burdens placed on doctors, patients like Veronica face serious challenges in finding a physician who will consider even listening to their concerns. The CCF has heard from numerous other patients who are medically-complex or who had an adverse reaction to the first dose and whose doctors have told them “off-the-record” that they should probably not get a first or second shot. But due to pressure from regulators, these physicians will not publicly support claims for medical exemptions.
The Search for a Better System
It is important that these stories be considered in context. For most people, Covid-19 vaccines are safe and the chance of an adverse reaction is low. The patients who are working with the CCF are not anti-vaxxers. Most of them want to get the vaccine and they don’t want their stories used to fuel an anti-vaccine narrative. But they feel compelled to act to protect their own health, wellbeing and even lives.
These individuals are not trying to find a loophole or lie about a disability to obtain an exemption. They simply do not want to put their own health at risk by blindly following an overly bureaucratic and inflexible public health directive. Any caring observer should be able to recognize the need for compassion and accommodation in their situations. Yet they have all had to work with lawyers just to do something as simple as eat inside a restaurant or go to the movies.
The B.C. government is undermining public support for its own vaccination policy by denying the reality and the serious human toll of adverse reactions and refusing to offer necessary accommodations to individuals who clearly require an exemption. Its policy’s biggest flaw is to require that public health officials expressly approve any exemption deemed necessary by a patient’s own health team. This veto power needlessly and dangerously inserts the provincial government into the relationship between a patient and their physician.
If the B.C. government insists on a vaccine passport policy, which itself may not be necessary or justified, it must at the very least accommodate people with disabilities. The B.C. government could easily maintain its general vaccine passport framework while showing compassion for the human cost of coercing high-risk individuals into getting vaccinated, by recognizing a broader range of legitimate medical exemptions.
Ontario, for example, does not have a closed list of categories for which doctors can grant exemptions. The regulator has provided anaphylaxis and heart inflammation as examples of reasons a physician may give an exemption, but is not ruling out other possible conditions. Nor does Ontario’s process require the public health bureaucracy’s individual approval for any exemption. An individual who faces a medical risk from taking a vaccine merely needs to present a physician’s letter describing their situation when asked for a vaccine passport. This allows physicians the necessary flexibility and discretion to put the medical interests of their patients first.
If such a spirit of accommodation is possible in Ontario, it’s possible in every province.
Christine Van Geyn is litigation director at the Canadian Constitution Foundation.
Source of main image: Shutterstock.