Donor blood battle: Judge rules in favour of Te Whatu Ora, child to receive transfusion in surgery

Author: George Block,
Publish Date: Wed, 7 Dec 2022, 6:20PM

A High Court judge has ruled in favour of health authorities who sought court guardianship of a gravely ill baby boy after his parents refused a blood transfusion and instead wanted a court order to receive blood from exclusively unvaccinated donors.

The court delivered its ruling just after 6pm in the landmark case of a gravely ill baby needing a blood transfusion as part of life-saving surgery.

The potentially precedent-setting decision is expected to have wide ramifications and draw a strong reaction in the anti-vaccine movement, where the case became a cause-celebre for those opposed to the vaccine.

Justice Ian Gault delivered his ruling on the contentious case after a lengthy hearing the previous day, where Health NZ and Sue Grey, representing the parents, locked horns in the High Court at Auckland as anti-vax protesters gathered outside.

Justice Gault ordered the baby, who has automatic suppression, is to be placed under the guardianship of the court “from the date of the order until completion of his surgery and post-operative recovery to address obstruction to the outflow tract of his right ventricle and at latest until 31 January 2023″.

His ruling said the baby’s parents remain his legal guardians aside from the medical matters covered in the order.

Justice Gault had reserved his decision following the marathon hearing where Paul White, lawyer for Te Whatu Ora, sought an order granting the court guardianship in respect of the six-month-old boy’s medical care.

The baby has a heart valve disorder requiring urgent surgery. Medical experts have said he would normally have been treated long ago and the pressure building up behind his ear.

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

Justice Gault also declined an order sought by Grey for the NZ Blood Service to establish a tailored donor service for the six-month-old boy to receive blood exclusively from unvaccinated donors.

A lawyer for the blood service, Adam Ross KC, on Wednesday described the request for that order as exceptional and without precedent. Ross said it would jeopardise the integrity of the donor service and open the door to ethically and clinically bankrupt requests regarding donor blood.

”It is a concern that an order like this can damage and will damage an excellent blood service,” he said.

”There’s also a slippery slope element to it.”

White said the safety had the vaccine and been proved medically and by the courts.

He said specialists believed the child’s heart is suffering damage because of the delay in surgery due to the build-up of blood resulting from pulmonary valve stenosis.

The parents and the baby, who was born two months premature, were in the packed public gallery for a short time on Tuesday morning. The baby was taken to court against the wishes of medical staff who wanted him to remain in hospital.

Lawyer Sue Grey (left) with the family. Photo / Alex Burton

White said applications for court guardianship for ill children whose parents refused blood transfusions most commonly occurred with Jehova’s Witnesses, who believe it is God’s will not to receive blood.

About a decade ago, there were two cases where the courts granted temporary guardianship of Kiwi Jehovah’s Witness children so they could receive critical medical care.

“What we have is loving parents … with beliefs that contrast with the medical profession’s views based on science,” White said.

He said the safety of the Covid-19 vaccine had been established by the courts. Surgery could take place within two days of a guardianship order, he said.

There were two surprise revelations during the hearing.

The first was that the family’s legal team, led by Grey, was formally seeking a court order requiring a bespoke blood service for the baby using exclusively unvaccinated donors.

The second was that the baby had already had a standard blood transfusion.

Grey said it happened during a surgery where had signed consent forms then blood became needed during the procedure.

“The fact they got away with it once doesn’t mean that we should effectively play blood roulette and try it again,” Grey said.

Ross strongly opposed the order for a special unvaccinated blood service for the baby and the application by Grey to join the NZ Blood Service to the guardianship proceedings.

“There are profound implications in what is being sought in this case,” Ross said.

Ross said the request for a specific donor service for unvaccinated blood jeopardised the integrity of the service.

“It is a concern that an order like this can damage, and will damage, an excellent blood service,” Ross said.

He suggested if such a request was granted, it opened the door to other requests that were theoretically possible to achieve - such as asking for blood from a specific ethnicity - but ethically and clinically bankrupt.

“There’s also a slippery slope element to it,” he said.

“We have been there before as a society.”

Grey cited information provided in an affidavit by Dr Byram Bridle, an associate professor in viral immunology at a veterinary college in Canada.

The material was critical of the Pfizer Covid-19 vaccine and centred on his controversial claims of heart inflammation from spike proteins.

Last year Bridle’s claim the spike protein was harmful or toxic was circulated widely online, drawing strong criticism from experts.

William Matchett, a University of Minnesota Medical School vaccine expert, told the Associated Press the spike protein causes an immune response but is not toxic. Matchett said Bridle selectively quoted or misquoted studies to support his claim.

Ross took aim at the evidence and credentials of Bridle.

He is a doctor “of the PHD variety” not a medical doctor and lacked direct knowledge or expertise of the baby’s case, Ross said.

The baby’s name and any details that could lead to his identification are automatically suppressed.