7 Dec 2022

Parents refusing vaccinated donor blood case: What you need to know

11:14 pm on 7 December 2022
e Whatu Ora is taking a case against parents who are refusing to allow blood from vaccinated people to be used during their baby's life-saving heart operation.

The parents of the baby speak to media outside the Auckland High Court. Photo: RNZ / Mohammad Alafeshat

Explainer - A judge has reserved his decision on whether to overrule parent's wishes for their baby's medical care.

Te Whatu Ora Health New Zealand was in the High Court today, asking it to take guardianship over a baby's medical care (more on what that means later) because his parents did not want him to be treated with blood from anyone who has had a Covid-19 vaccine.

The four-month old urgently needs open heart surgery, which is likely to require a blood transfusion.

What's the basis of the case?

The baby has a condition called pulmonary valve stenosis, which is a blockage in his heart that needs to be cleared.

He needs urgent surgery - but his parents do not want the baby to receive blood from someone who's had the Covid-19 vaccine, fearing it is unsafe.

It is the parents' firm belief that they are doing what's best for their child, but the doctors say there is no scientific evidence that vaccinated blood poses a risk.

The doctors and parents have not been able to agree, so Te Whatu Ora has applied to the court under the Care of Children Act, asking that the doctors have temporary guardianship of the baby for his medical care only.

His parents remain guardians for the rest of their child's care.

Te Whatu Ora's lawyer said in court last week that the baby could get sicker with every heartbeat, and he could deteriorate suddenly - so the case is being heard urgently.

Dr Jim Faed

Haematologist and transfusion medicine specialist Dr Jim Faed. Photo: McROBIE PHOTO

Haematologist and transfusion medicine specialist Dr Jim Faed said there was no evidence of any risk associated with blood from a person who has been vaccinated against Covid-19.

Any vaccine in the blood is broken down quickly after the injection.

Can't the parents choose someone to donate blood directly?

In Aotearoa, people donate blood through the New Zealand Blood Service at clinics which is then used for someone - unknown to the donor - who needs it.

This "volunteer donated blood" - which the baby's doctors want to use - is the safest, Faed said.

That is because there is a rigorous screening process - for example, if someone has lived in the UK during the Mad Cow Disease outbreak, or has contracted HIV, they cannot donate.

"With the donor screening, and the testing, transmission in New Zealand is incredibly safe," Faed said.

"It's not without very small frequencies of risks, but they are extremely low."

The other more rare option is "directed donation": parents asking if they, or friends or relatives can provide the blood.

This is possible, but more risky, he said.

"It's not encouraged, because it may not be as safe as the more highly selected donors who are used, particularly for transfusion of very young babies."

One of the reasons is because directed donors - who may know the patient their blood is destined for - may purposely answer screening questions incorrectly if they know the truth would stop them from being able to donate.

"That is the is a significant risk that concerns us.

"And that's why volunteers who are unrelated to the end use of the blood and are giving just out of the motivation of their good nature, are the safest blood donors around the world."

So what could happen?

If the court rules in the parents' favour, directed donation could be considered - but again, it is not the safest option, Faed said.

The New Zealand Blood Service would not want to consider separating volunteer donated blood by vaccination status, because there was no scientific evidence that vaccinated blood carries any risk - and there would not be enough available, considering the country's high vaccination rates, he said.

The legal line - a life and death situation

Liberty Law medical law specialist Rebecca Keenan said the court must rule in favour of whatever is in the child's best interests.

Usually, parents of children needing medical care still have guardianship and make decisions based on the advice of doctors, Keenan said.

"However, this falls apart when the parents and the medical team disagree on what the right step is to take.

"And that's why there's this legal form within our law that allows the health practitioners to take a application to the High Court ... to allow them to become the guardian of the child specifically for the medical treatment sought."

Supporters outside the High Court in Auckland hearing a case taken by Te Whatu Ora over parents of a baby needing urgent heart heart surgery refusing to allow blood from vaccinated people to be used during the operation.

Supporters of the baby's parents protest outside the High Court. Photo: RNZ / Marika Khabazi

The courts would rather they come to an agreement, said Keenan, but in this case, there is no more time for negotiation.

"In those situations, the courts will generally [side with] the doctors because our law says that the best interest of the child is paramount."

What does medical guardianship mean?

That is guided by the doctors' specialist knowledge and what they have applied to the court for, Keenan said - but it could include anything to do with the surgery, and pre and post-operative care.

However, because the parents' objection is only for the blood transfusion if it's required in surgery, it could be decided that the child is only in doctors' care for the surgery itself.

Does it matter that the parents' objection isn't based on scientific evidence?

That is not material to the court, Keenan said.

The parents firmly believed they were acting in the best interest of the child - whether or not it is a proven fact.

But Te Whatu Ora's case was likely stronger because it was based in scientific fact.

They could argue science did not back up the parents' fear, and the risks involved were low, because the blood was safe, Keenan said.

Could there be an appeal?

Yes, but it almost certainly will not work.

If the court rules in Te Whatu Ora's favour, any appeal by the parents for the case to be taken to a higher court would be too late - because the doctors could immediately take the child into surgery, Keenan said.

Have there been previous similar cases in New Zealand?

Similar cases in Aotearoa have been ruled in favour of the health practitioners.

In 2015, a man didn't want his nine-year-old son to be treated for HIV - which the boy contracted from his mother - because he believed the medicine would kill his child.

He also refused to accept that his son or wife's diagnosis was correct.

At the time, the NZ Herald reported that Justice Patrick Keane took the expert opinions of the clinicians over the father's views, saying there was no doubt about the boy's diagnosis or that HIV led to AIDS.

David Fisher wrote evidence was also given that the drugs would allow the boy to live a virtually normal life.

Other parents have fought against blood transfusions for their children for religious reasons.

Transfusions are against Jehovah's Witnesses' faith.

In 2013, a 10-month-old was placed into the guardianship of the High Court so she could receive life-saving cancer treatment.

The year before, the same decision was reached for a two-year-old who needed a liver and kidney transplant.

The child later died, but the Sunday Star Times reported that wasn't because of the delays due to the parents' refusal of her blood transfusion.

Have there been court cases like this about 'vaccinated blood' overseas?

It looks like this is an unprecedented case. Faed said he was unaware of anything similar happening overseas, as did Immunisation Advisory Centre director Dr Nikki Turner when she spoke to TVNZ.

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