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The Union of B.C. Indian Chiefs has won the first stage of a B.C. Human Rights Tribunal case where it argued the province's criteria that a person abstain from drinking alcohol for six months before they are allowed to get a liver transplant unfairly discriminates against Indigenous people.

The union launched the case against the Provincial Health Services Authority, the B.C. Transplant Society, Vancouver Coastal Health Authority, and the Ministry of Health who in turn applied to have the case thrown out.

However, the Human Rights Tribunal said the case could continue to a hearing as the union had provided enough evidence.

According to a Sept. 7 B.C. Human Rights Tribunal decision, an individual in B.C. is required to abstain from alcohol for six months to be eligible for a liver transplant.

The tribunal said the six-month abstinent requirement could adversely impact a person with an alcohol use disorder, which is considered a disability protected by the B.C. Human Rights Code.

"That person may be required to wait longer than others for a liver transplant to satisfy the six-month requirement. In some cases, this wait could be fatal," the tribunal ruled.

The Union of B.C. Indian Chiefs said the case represents "Indigenous persons who have been adversely impacted by a policy requiring six months of abstinence from alcohol before a liver transplant."

In its defence, the health authorities argue the policy of six months of abstinence was dropped in 2019, although admitted it only updated its official guidelines in 2022.

In the decision, the union of B.C. chiefs highlighted the case of David Dennis, who filed a similar complaint with the Human Rights Tribunal in 2019, but died the following year. It said if the rules have changed, doctors don't seem to know about it.

It also pointed out a case of a woman who was told by 11 different doctors she could not have a liver transplant until she was sober for six months. The woman stayed sober and did manage to have a liver transplant and survived.

The Union of B.C. Indian Chiefs said it has heard from many Indigenous people who have been told they or their family members are not eligible for a liver transplant because of the six-month abstinence requirement.

The health authorities said a six-month abstinence requirement is a common practice around the world, although at all times each patient is individually assessed.

The union of chiefs also argued the medical assessment tool used to assess the degree of liver dysfunction, called a MELD-Na score, is ineffective for patients that have primary biliary cirrhosis.

The decision said primary biliary cirrhosis disproportionately impacts Indigenous people, specifically women.

The Union of B.C. Indian Chiefs allege that MELD-Na scores fail to accurately determine urgency in patients with primary biliary cirrhosis, which results in longer waiting times on transplant lists and therefore higher death rates. It submitted a scientific paper about the subject as evidence.

The health authorities argued that race and ancestry have no impact on a person’s access to a liver transplant.

"I agree that there is no evidence capable of proving direct or intentional discrimination against Indigenous patients," the decision read. "However, the essence of the complaint alleges discrimination arising from the unintended impacts of the system for allocating liver transplants."

The tribunal said that Indigenous people are six times more likely to suffer alcohol-related deaths and Indigenous people suffer disproportionately higher rates of alcohol use disorder due to historic and ongoing oppressive and colonialist policies.

The tribunal also pointed to genetic factors and "metabolizing enzyme variants."

The health authorities also argued they scrapped the six-month abstinence rule and they can not be held responsible for the state of medical knowledge of "every health professional throughout the province."

However, the tribunal disagreed.

"They clearly have a leadership role in developing and communicating eligibility criteria, which are then interpreted and applied by doctors and specialists throughout the province," the tribunal said.

It ruled that while the six-month rule appears to have been changed, it does not address the impact of any discrimination prior to the change.

Ultimately, the tribunal ruled the Union of B.C. Indian Chiefs had submitted enough information that the case should go to a hearing to be decided.

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