Concern for sick baby’s life took precedence

Every parent wants the best for their child. When a 6-month-old baby, ‘‘Baby W’’, needs life-saving surgery, that puts a tremendous pressure on a family who want the best outcome for their child.

The medical system is also under immense pressure, and faces an immense workload, to do the best for every child that comes under its watch.

These two pressures came face-to-face this week in the case of Baby W, and the different views about the Covid-19 vaccine. Health professionals attempted a procedure where they used a balloon to try to open a valve in Baby W’s heart, and avoid using blood donation, but this procedure did not work. The medical team decided the only option was to proceed with a blood transfusion and surgery, with the use of plasma afterwards.

There was very little time to have a meeting with the parents, who were given 15 minutes’ warning before the doctors would explain the procedure for their baby. This was difficult for the parents, given their own pressure to want the best for their child.

The father was unable to attend this meeting. The mother felt after the meeting that she was ‘‘cornered’’ and did not feel fully heard, Justice Gault said in his decision. Communication broke down between the parents and the medical team when a supporter of the parents argued that babies were dying from blood transfusions at Starship hospital. That is why the matter ended up in the High Court.

Health New Zealand applied for the High Court to become a guardian of the child, to thereby give consent to the operation and the blood transfusion. The courts see this as a last resort. It is an ancient jurisdiction that exists to protect vulnerable people – in this case, a baby – from decisions that may harm their well-being.

The argument before the court was not about whether the child should have the operation or a blood donation, but about the type of blood donation. The medical team said it would use blood from the NZ Blood Service, which does not separate blood from vaccinated and unvaccinated donors.

This operation required both a blood transfusion and plasma, which is made up from several different donations. The medical team provided evidence that there had been millions of previous transfusions using such blood worldwide without evidence of any harm being caused, as well as peerreviewed articles determining this to be international best practice. The argument the parents raised was that, while there may not be evidence of harm, there needed to be proof that their baby would be safe before the blood was put into his body.

Justice Gault took the view first that there was evidence that using vaccinated blood would not harm the child, based on its extensive use internationally with no evidence of harm. He then looked at the parents’ argument that they should be able to use direct donations for bespoke blood from unvaccinated people.

However, evidence from the NZ Blood Service said bespoke blood was not risk-free. Internationally, direct donations are used only when they are the only available option for rare conditions. The need for plasma, which comes from a number of donors, also made it medically more acceptable to use blood from the Blood Service.

The medical team must still seek the parents’ views and keep them fully informed, but the medical team will have the final say.

In the end, Justice Gault applied the principles of the Care of Children Act 2004, which regards the child’s welfare and best interests as paramount. An earlier Court of Appeal case held that a child’s right to life is fundamental and given more weight than parental beliefs (whether religious or otherwise).

The order means the court becomes the decision-maker for the baby regarding this procedure. The paediatric surgeon and cardiologist at Starship have been appointed agents of the court throughout the medical procedure to ensure it is conducted appropriately.

The medical team must still seek the parents’ views and keep them fully informed, but the medical team will have the final say. The parties can come back to court if circumstances change. The order will end in January, or when the baby’s post-operative recovery is complete.

Justice Gault was appropriately sympathetic to the parents, whom he described as ‘‘loving parents’’, and he decided the case in accordance with the law and precedent cases. The courts do not relish intervening in such cases, but the urgency to save the baby’s life meant there was no other viable alternative.