What happens when parents’ anti-vaccination sentiment conflicts with life-saving treatment needed by a child?

The recent decision of the High Court of New Zealand (the Court) in Te Whatu Ora Health New Zealand, Te Toka Tumai v C and S[1] underscores the tension between a child’s need for life-saving medical treatment and parents’ refusal of consent.

In cases such as these, consistent with long-established principles of law, a child’s best interests prevail. In this case, the Court held that it was in the child’s best interests to receive a blood transfusion—despite objections from the child’s parents—because the blood transfusion was a necessary part of a life-saving operation to treat a congenital heart defect. Against the background of this decision, this article considers the way in which such cases would be dealt with in Victoria, and also looks at the international phenomenon of patients refusing blood products on the basis of the donor’s perceived or actual COVID-19 vaccination status.

Background

Baby W required an urgent heart operation to correct a congenital heart defect leading to a severe obstruction to the outflow tract of his right ventricle, which was causing hypertrophy of his right ventricle. Over the course of his six months’ of life, Baby W’s condition had deteriorated dramatically and the gradient in his right ventricular outflow was now three times the normal pressure. In order to survive, Baby W required surgery to relieve the right ventricular outflow trapped obstruction and enable the free flow of blood. Without surgery, Baby W’s condition would continue to deteriorate. While medication was able to slow Baby W’s heart rate and help manage his hypertrophic heart, surgery was considered to be  the only option for long-term management of his condition. With surgical intervention, Baby W would have a long-term surgical prognosis in excess of 90 per cent. As part of the operation, Baby W’s clinical team advised Baby W’s parents that he would require blood products.

The parents’ refusal to consent

Baby W’s parents refused to consent to their child receiving a blood transfusion, citing concerns about the safety of receiving blood from a COVID-19 mRNA vaccinated blood donor. Rather, the parents emphasised the need to use blood products from unvaccinated donors. The hospital team treating Baby W took these concerns seriously, and sought the data that the parents were relying on in order to better understand their concerns. The concerns were raised by the hospital team and were in turn discussed with the New Zealand Blood Service (NZBS). After reviewing the data, the hospital team explained to the parents that the data provided did not lead them to the view that they should, or could, recommend unvaccinated blood transfusion. After discussion with the NZBS, it was simply impractical to have directed unvaccinated blood donation for albumin and other plasma products that Baby W would very likely, almost certainly, require post-operatively. Furthermore, it was not an available option to perform the operation without the use of blood products.

Accordingly, the hospital proceeded to press on with a surgical date as soon as possible because of Baby W’s cardiac function. Unfortunately, due to the Paediatric Cardiac Surgeon in Chief’s commitments, Baby W’s mother was only given 15 minutes’ notice of the meeting where the hospital team planned to share their position, and they were unable to connect with his father by telephone. No support person was present for Baby W’s mother, who became extremely upset. While this is not an ideal practice,[2] the specialists apologised and explained that the legal process that was about to take place would require some time, and time was of the essence for Baby W’s condition. Two days later, another meeting was organised which was unsuccessful at resolving the issues. The meeting ended early, after Baby W’s parents’ support person derailed the meeting and did not allow conversation to take place.[3]

The application

Te Toka Tumai, the Auckland District Health Board, applied to the Court for an order placing Baby W under the guardianship of the Court.[4] Section 31(2)(g) of the Care of Children Act 2004 (NZ) (‘Care of Children Act’) provides that an eligible person may apply for an order placing a child under the guardianship of the Court. Certain persons, such as a parent or guardian, or grandparent, have an automatic right to apply for a guardianship order. Other persons, including a health authority, require leave of the Court. Section 33(1) of the Care of Children Act deals with the sort of orders that may be made, including orders for appointment of a person to be the Court’s agent where the Court is appointed guardian. Section 36(3) deals specifically with consent to medical treatment (including a blood transfusion) and provides that if the treatment is “necessary or sufficient”, the guardian may consent. Importantly, s 4(1) provides that “ [t]he welfare and best interests of a child in his or her particular circumstances must be the first and paramount consideration”. As to the substantive orders, Te Toka Tumai sought the following orders (among others):

• Placing Baby W under the guardianship of the Court until the completion of his surgery and post-operative recovery.
• Appointing two clinicians as agents of the Court for the purposes of consenting to the surgery to address obstruction of Baby W’s congenital heart defects and all medical issues relating to that surgery, including the administration of blood and blood products where such treatment is in accordance with good clinical practice and in the best interests of Baby W, as assessed by the agents.
• Except in relation to consenting to surgery and all medical issues relating to surgery, appointing Baby W’s parents as general agents of the Court for all other purposes.

The Court’s decision

Should Te Toka Tumai be granted leave?

The Court held that the leave requirement functions as “an additional safeguard”, the focus of which “is on the standing or interest of the person seeking leave rather than the merits of the application which must be considered if leave is granted”.[5] In granting leave, the Court recognised that the fact that Te Toka Tumai “is charged with Baby W’s medical care and treatment and has a bone fide interest in his welfare … is a sufficient basis to be granted leave to apply for an order placing Baby W under the guardianship of the Court".[6]

The substantive issues

As to the substantive issues, the Court identified “two interrelated factual issues” as underpinning the dispute:

1. Whether the clinicians’ proposed use of NZBS blood products is safe; and
2. Whether the parents’ proposed use of directed blood is a safe and viable alternative.[7]

As to the safety of the NZBS’ blood products, the Court held that no real weight can be placed on the fact that Baby W previously received blood products two months prior to the present application; such previous treatment does not undermine “the genuineness of the parents’ current concerns”.[8] The Court accepted the evidence of Te Toka Tumai that there was no known harmful vaccine-related side effects from blood products administered from vaccinated donors, and that there is no evidence of harm from antibodies present in the blood.[9] Even if there was a “real risk to safety with blood transfusions using blood from mRNA vaccinated donors, that risk would need to be balanced against the risk of the alternative (if available), namely using blood from directed donors not vaccinated with the mRNA vaccine”.[10]

As to the proposed alternative of directed blood, the Court held that this was neither a realistic nor viable option. Indeed, the Court noted that the parents’ “evidence does not support their belief that requiring use of blood from donors not vaccinated with mRNA vaccine is a safe and viable alternative. Their alternative is not supported by a clinician’s opinion nor peer reviewed articles pertaining to Baby W’s condition”.[11]

While recognising Baby W’s parents’ “genuine concerns”, the Court underscored that the real issue is what is in Baby W’s best interests. [12] As the need for surgery was urgent, the Court held that it was in Baby W’s best interests to make orders “enabling the surgery to proceed using NZBS blood products without further delay”.[13] Orders were made in the terms sought by Te Toka Tumai.[14]

The position in Victoria  

At common law, an adult with decision-making capacity has the right to consent and withdraw consent to medical treatment.[15] This principle of personal inviolability is well-recognised in Australian law.[16] Although the consequence may be death for the patient (or of the child the patient bears), the competent adult has the right to refuse “for religious reasons, for rational or irrational reasons, or for no reason at all”.[17] Where competence is established, the question of the patient’s best interests does not arise.[18]  For competent adults, therefore, the balance between the state’s interests in the preservation of life and the patient’s interests in autonomy and self-determination is struck in favour of the patient.[19] For minors, however, the situation is starkly different.

Before a child reaches the age of majority, their parents have the power to consent to and a (limited) right to refuse consent to medical treatment. Minors below the age of majority with “a sufficient understanding and intelligence to enable him or her to understand fully what is proposed” gain the ability to consent and the “parent right yields to the child’s right”.[20] In the common law world, there is an almost international consensus that the best interests of the child prevails in situations involving child or parental refusal of consent to medical treatment.[21] The Supreme Court of Victoria has an inherent parens patriae jurisdiction through which it is broadly empowered to do what is for the child’s benefit.[22] This jurisdiction is protective, governed by consideration of the child’s best interests and exercised cautiously.[23] The court’s jurisdiction in such cases is not categorically limited in its power to grant relief where the minor is Gillick competent, rather, the court moulds its orders to the specific circumstances of the case.[24]

In a survey of 25 cases that involved adjudication of life-sustaining treatment for a minor, analysis conducted by Lindy Wilmott and colleagues found that 15 involved decisions about blood transfusions. In each of those cases, the treatment was authorised.[25] Wilmott and colleagues identify that the likelihood of the transfusion curing or improving the minor’s health or preventing death was the most significant factor in determining whether court-authorised consent is given. Of the cases surveyed, in four the likelihood of cure was 85 to 90 per cent.[26] Whilst in one case, the chance of survival was 40 to 50 per cent.[27] Thus, it appears that where treatment “will or may cure, significantly improve or prevent the child’s death” the court will authorise the transfusion on the basis of the child’s best interests.[28]

COVID-19-related over blood products

Jeremy W Jacobs and colleagues have observed the phenomenon of “patients refusing blood based solely on the COVID-19 vaccination status or COVID-19 infection history of the blood donor” in the United States of America, with patients demanding “that physicians disclose details of the donor from whom they may potentially receive blood, including whether the donor received a COVID-19 vaccine”.[29] If such refusals are occurring in the United States and in New Zealand, it is almost certain that they are occurring in Australia, and elsewhere. The Australian Red Cross Lifeblood service has guidelines requiring donors “to wait 3 days after receiving each COVID-19 vaccine before donating blood, plasma, or platelets”.[30] In the United Kingdom, which has similar guidelines,[31] there has even been a petition presented to Parliament to create a separate blood and organ donation system for the COVID-19 unvaccinated.[32] This petition was rejected.[33] Of course, competent adults are free to refuse blood products for any reason, including because of the vaccination status of the donor. The situation is necessarily more complicated when it comes to children, but it is highly likely that courts will consider it in the best interests of the child to receive blood products where they are necessary for the life and health of the child.

Conclusion

Baby W’s case demonstrates the difficult position in which families, medical practitioners, and courts find themselves in resolving genuinely-held refusals by parents to their child receiving necessary blood products. In these cases, the child’s best interests is always determinative, outstanding the genuineness and strength with which the parents’ objections are made. For competent adults who refuse consent to blood products, they are free to do so for whatever reason or no reason at all. Given a growing international trend of individuals seeking to refuse blood due to the donor’s perceived or actual COVID-19 vaccination status, it is likely that medical practitioners and courts will see more such cases.

This article was co-authored by Scott Walker, Paralegal, and originally published in Volume 31 No.2 of the Australian Health Law Bulletin.

Read other items in the Australian Healthcare Brief - June 2023