BURST
A B.C. judge has rejected a Charter challenge brought by a Kamloops doctor who said her rights were violated when her hospital privileges were revoked for refusing to get the COVID-19 vaccine.
Dr. Theresa Szezepaniak brought the action in B.C. Supreme Court in Kelowna against the Interior Health Authority and the Hospital Appeal Board, which upheld the health agency’s decision.
Judge Steven Wilson said the revocation was an administrative decision, not a matter of Charter rights, and ruled in favour of health officials.
Szezepaniak worked as a hospitalist at Royal Inland Hospital in Kamloops during the pandemic. On Oct. 14, 2021, provincial health officer Dr. Bonnie Henry issued an order that all doctors and nurses must be vaccinated. Those who refused were told they must resign their privileges or run the risk of being disciplined.
The doctor refused either to get the vaccine or resign, instead launching an appeal with the Hospital Appeal Board, which largely upheld the decision of Interior Health, although it “ concluded that the sanction of termination was too harsh.”
The appeal board said Szezepaniak should be suspended instead, effectively ending her contract while the health order was in place.
Szezepaniak “argues that her decision not to be vaccinated was one she was entitled to make, and because the provincial health order precluded her from working at the hospital, she ought not to have been disciplined at all.”
The doctor argued the discipline meant she has a “black mark” on her record that will have to be disclosed whenever she applies for new positions. She argued that violates Section 7 of the Canadian Charter of Rights and Freedoms because it “includes the right to earn an income to support oneself and family.”
The judge noted neither the validity of the health order nor the question of the efficacy of the COVID vaccine were at issue in the case. The judge also said it was not a test of the “procedural fairness” of the appeal board hearing or of Interior Health’s procedures and rules for employees.
Szezepaniak has been practising medicine for 23 years and was a clinical instructor at UBC for 15 years. The primary earner in her family, she moved to 100 Mile House and took a position there after the Royal Inland dismissal.
Hospital privileges in all B.C. health authorities are reviewed annually by the regional board of directors, and when a medical worker fails to abide by the Hospital Act or any of its bylaws, a disciplinary process is started.
Interior Health’s board cancelled Szezepaniak’s hospital privileges in a resolution dated Aug. 18, 2022. She appealed to the Hospital Appeal Board, which upheld the dismissal and rejected the Charter argument.
The appeal board “acknowledged that the petitioner was free to make the decision to remain unvaccinated, but concluded that discipline was nonetheless the consequence of that decision.”
As for the Charter argument, the appeal board said the health authority was only making a “routine or regular” application of existing government policy. “While made in response to the effects of the (provincial health) order, it did not constitute application or implementation of government policy.”
The judge also agreed the operational decision to suspend Szezepaniak’s hospital privileges was not “patently unreasonable” in the circumstances, a condition that could trigger a Charter challenge.
“I do not accept that a hospital board’s ability to exclude a practitioner from the hospital for failing to comply with the bylaws is a decision that is governmental in nature,” said the judge in the ruling posted online late last week.
While the vaccination mandate was a provincial health order, “the decision regarding how to discipline the hospital medical staff for their breach of the PHO (order) was not subject to governmental control under the Hospital Act, as the responsibility for adopting disciplinary measures for governmental policies rests with the Interior Health Authority board.
“It follows that I conclude that the Charter does not apply to the circumstances in this case.”
Though acknowledging that Szezepaniak encountered “stress and hardship” in making her decision to reject the vaccine, the judge said that “does not make the orders a state interference with their physical or psychological integrity.”
The judge referred to an earlier ruling that said “the right to security of the person does not protect the individual from the ordinary stresses and anxieties that a person of reasonable sensibility would suffer as a result of government action.
“If the right were interpreted with such broad sweep, countless government initiatives could be challenged on the ground that they infringe the right to security of the person, massively expanding the scope of judicial review, and, in the process, trivializing what it means for a right to be constitutionally protected.”