New Zealand, High Court of New Zealand, 7 December 2022, 0221208-Minute-Te-Whatu-Ora
Case overview
Country
Case ID
Decision date
Deciding body (English)
Type of body
Type of Court (material scope)
- Administrative Court
- Civil Court
- Criminal Court
- Constitutional Court
Type of jurisdiction
Type of Court (territorial scope)
Instance
Area
Further areas addressed
Vulnerability groups
Outcome of the decision
Link to the full text of the decision
General Summary
The applicants sought a guardianship order in order to perform life saving surgery on a 6 month old baby. The surgery required a blood transfusion from donors vaccinated against COVID-19. Rights included the right to bodily integrity, right to health and right to refuse to undergo medical treatment (for a minor). The application was successful. Guardianship was granted to the health authorities for the purposes of performing the surgery.
Facts of the case
Baby W was a six month old child with a congenital heart defect. The child required a heart operation and as part of this procedure would require a blood transfusion. The Respondents refused to consent to blood donors who had been vaccinated as such blood contains the COVID-19 mRNA vaccine with spike proteins which they believed may cause myocarditis or clotting which could be fatal to the child. The Respondents sought to obtain blood donations from non vaccinated donors and sought by way of an interlocutory application, to join the New Zealand Blood and Organ Service. As the surgery was urgent, the NZ Health Authorities sought an order that the child be placed in the care of the State under a guardianship order to enable surgery to go ahead. The overriding issue was whether the surgery was in the child’s best interest. The Court considered two key issues, namely whether the proposed use of blood products was safe and whether the parents’ proposed use of unvaccinated blood was a safe or viable alternative.
The case did not concern parental refusal to consent to medical treatment on religious grounds therefore it was not necessary to balance this right and the right to life. The Court characterized the parents’ concerns as a belief as to the medical risk involved in blood products from people vaccinated against COVID-19 rather than a belief in terms of section 15 of the New Zealand Bill of Rights Act 1990, which protects the manifestation of religion and belief.
A guardianship order was made in favour of New Zealand Health for the purpose of the facilitating and performing the surgery and that New Zealand Blood products are utilized. The parents were appointed as “general agents” of the Court for other purposes.
On 8 December 2022 a further application was made due to the parents’ obstruction of clinicians and treating staff at the hospital, ultimately preventing surgery. The parents sought to re-introduce new evidence as to the surgery not being urgent. This application was declined. A further order was made appointing the treating medical practitioners as agents of the Court, thereby extending their authority to perform the surgery against the wishes of the parents.
Type of measure challenged
- National government measure
- Federal government measure
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Claimant(s)
PublicDefendant(s)
Private individual
Type of procedure
Reasoning of the deciding body
The Court clarified the parents’ position in that it did not concern parental refusal to consent to medical treatment on religious grounds. Therefore it was not necessary to balance this right and the right to life. The parents’ concerns were characterized as a “belief” as to the medical risk involved in blood products from people vaccinated against COVID-19 rather than a belief in terms of section 15 of the New Zealand Bill of Rights Act 1990. The Court confirmed that all parties were concerned to act in the child’s best interest and to protect his life. The dispute was as to what blood products he should receive in order to achieve this.
The Court considered guardianship with reference to Sections 31, 33, 36 and 4 of the Care of Children Act 2004.
The overriding issue was whether the proposed treatment was in the child’s best interest. Two interrelated factual issues were identified:
- Whether the proposed use of NZBS blood products was safe; and
- Whether the parents’ proposed use of unvaccinated blood was a safe and viable alternative
The Court reviewed a number of affidavits of medical professionals. However, due to the urgency of the matter, the evidence was not able to be tested on cross examination. The court accepted that there were no known harmful vaccine related effects of blood from a vaccinated individual to a recipient of any age. Furthermore, the use of NZBS blood products was safe and consistent with established medical practice. Upon a review of the evidence in relation to the second point, the Court concluded that such evidence did not support the Respondent’s belief that requiring use of blood from unvaccinated donors with mRNA vaccint is a safe and viable alternative. The Court noted that the alternative had not been supported by a medical professional’s opinion nor any peer reviewed articles relating to Baby W’s condition.
The Court accepted that the Respondent had genuine concerns about the use of vaccinated blood but the issue was what was in Baby W’s best interests. The alternative proposal was found not to be supported by a clinician who was familiar with Baby W’s condition. The Court concluded that it was not a safe alternative nor was it in Baby W’s best interests.
An order was made for the use of NZBS blood during surgery.
An order was made placing Baby W in the care of NZ Health for the purposes of the surgery.
Conclusions of the deciding body
Application was successful.
Fundamental Right(s) involved
- Right to bodily integrity
- Right to health (inc. right to vaccination, right to access to reproductive health)
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
General principle applied
Balancing techniques and principles (proportionality, reasonableness, others)
The Court clarified the parents’ position in that it did not concern parental refusal to consent to medical treatment on religious grounds and therefore it was not necessary to balance this right and the right to life. The parents’ concerns were characterized as a “belief” as to the medical risk involved in blood products from people vaccinated against COVID-19 rather than a belief in terms of section 15 of the New Zealand Bill of Rights Act 1990.
