Blood donor battle: Court granted temporary guardianship of sick baby, urgent operation to go ahead

A judge has ruled in favour of Te Whatu Ora Health New Zealand's application to put guardianship of a sick four-month-old baby into the court to allow the child's heart surgery to go ahead under the usual process. 

The child, who cannot be named because of an automatic court order, has the heart condition pulmonary valve stenosis and requires an operation to clear a severe valve obstruction. 

The baby's parents said they want the surgical procedure to go ahead, but they didn't want it to happen with blood donations from donors who've been vaccinated against COVID-19.

The guardianship order comes into effect from the date of the order until the baby's surgery and post-operation recovery has ended, lasting until January 31, 2023, at the latest. 

The court has appointed two doctors as agents of the Court to consent to the life saving surgery. 

"[Including] all medical issues related to that surgery including the administration of blood and blood products."

The child's parents remain as general agents for other purposes. 

The doctors appointed have been ordered to keep the parents informed of the progress, condition and treatment of the child.

The judge accepted the child's parents' "genuine concerns" about the risk of using vaccinated blood, but said their views are "very different" from the views of the child's clinicians and the New Zealand Blood Service (NZBS).

"The parents' alternative proposal is not an available alternative offered by NZBS. It is not supported by a clinician's opinion knowing [the baby's] state, nor by peer reviewed articles. I cannot conclude it is a safe alternative that is in [the baby's] best interests."

The judge added enabling the surgery to go ahead using NZBS blood products without further delay is in the child's "best interest". 

Te Whatu Ora Te Toka Tumai Auckland's interim director, Dr Mike Shepherd, recognised "this is a difficult situation for all involved".

"The decision to make an application like this to the court is always made with the best interests of the child in mind and following extensive conversations with whānau."

Dr Shepherd added the Starship team will work alongside the baby's family "as we continue to care for him".

A full hearing was held on Tuesday at the Auckland High Court before Justice Ian Gault.

Paul White, the lawyer acting for Te Whatu Ora, said if the application was successful, the court would appoint two sets of agents. Medical agents would deal with the baby's condition and treatment, but the child's parents would remain the agents of any other decisions for their baby. 

"His survival is actually dependent on the application being granted," White said. 

White told the court, previously when the baby was having an earlier procedure a blood transfusion was given to the child with the mother's consent.  

"So it's curious now that such a firm position is taken to further blood products when there was already an earlier consent to blood products being administered, which were administered and there haven't been any adverse consequences to the baby from that," White said. 

But the family's lawyer, Sue Grey, said that was only agreed to in the case of emergency, saying "the fact they got away with it once doesn't mean that we should effectively play blood roulette and try it again".

Grey said some of the people identified by the family as possible unvaccinated donors, were outside court.

"There's ample evidence that NZ Blood and the hospital can do it, they just don't want to do it," she said. 

She added that "just as a delay can create risk for this baby, it's very clear that blood that's contaminated can create a risk for this baby".