Image Credit: ADOBE STOCK

The provincial government has lost part of a legal battle in a Human Rights Tribunal case filed by the Union of B.C. Indian Chiefs on behalf of Indigenous people who have been denied a liver transplant because they did not abstain from alcohol for six months.

The provincial government and others named in the suit had sought to have the Union of B.C. Indian Chiefs turn over information about those denied liver transplants along with their particular circumstances and communications with healthcare providers and clinical records.

However, the Tribunal dismissed the government's request.

The case was originally filed in June 2020, with the Union of B.C. Indian Chiefs naming the Ministry of Health and Provincial Health Services Authority, the B.C. Transplant Society and Vancouver Coastal Health Authority in its B.C. Human Rights Tribunal case.

The Indian Chiefs argue the provincial government's policy that in order to have a liver transplant applicants must quit drinking for six months before being allowed on the waitlist, has a discriminatory impact on Indigenous persons who suffer from disproportionately higher rates of alcoholism than the general population.

READ MORE: Human rights complaint over 'discriminatory' no-alcohol policy for liver transplants proceeds

In the Mar. 5 Human Rights Tribunal decision, the province argues it needs the medical information about the three unnamed people in the suit so it can properly prepare its case.

However, the Tribunal says the government has missed the point and failed to prove the documents it was after were relevant.

"The fact in issue is whether the policy has the result of disproportionately disqualifying Indigenous persons from placement on the liver transplant list," Tribunal member Emily Ohler says in the decision. "It is not apparent to me how the disclosure sought may be relevant to prove or disprove that the policy disproportionately disqualifies Indigenous persons from placement on the liver transplant list, and if so, whether the policy is justified."

While no individual name is given in the decision, the original June 2020 filing identifies David Dennis – an Indigenous man who filed a similar complaint in August 2019 nine months before he died. Media reports at the time quoted B.C. Transplant saying the abstinence policy was no longer in effect.

Although Dennis is not named, the decision says 340 of the 344 pages disclosed by the B.C. Indian Chiefs related to "an individual" who had died and had previously filed a Human Rights Tribunal complaint. 

The Union alleges that there is little or no scientific support for the abstinence policy and argues the policy puts Indigenous peoples' health at risk and is an "affront to their dignity, respect, and self-worth."

The Indian Chiefs' complaint represents all Indigenous persons who have been denied a liver transplant in B.C. under the policy. In June 2020 the B.C. government had attempted to have the case dismissed but lost.

Along with the medical records, the province also requested an extension on its deadline to file its disclosure.

However, the Tribunal again refused the government's request.

"The Respondents are surely in possession of documents related to the policy and its administration. The rationale behind and administration of the policy is, after all, the heart of the complaint," the Tribunal ruled.

Ultimately, the Tribunal gives the government four weeks to file its disclosure as the case makes its way to a hearing.

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