The parents’ lawyer, Sue Grey, also this afternoon sought advice from two United States experts who are seeking the opportunity to appear before the court or to discuss these issues with the Starship hospital surgeon, cardiologist and NZ Blood Service (NZBS).
They are now arguing that the baby’s surgery can be delayed a week to “consider all options”. Grey referred to allowing time for the parents’ concerns, which she said are supported by new information and new expert evidence, to be addressed, and further submitted that there is “no urgency” for the surgery.
Justice Gault recorded that Grey was effectively seeking to reopen the judgment delivered yesterday.
He said it was previously common ground that Baby W needed surgery – the issue was in relation to consent to blood transfusion.
“Now that the parents evidently do not consent to the surgery or pre-operative checks, it is clearly necessary to make consequential ancillary orders to enable the surgery to proceed.
“Baby W urgently requires surgery and, as I concluded in my judgment, an order enabling the surgery to proceed using NZBS blood products without further delay is in Baby W’s best interests.
“I said in my judgment that it should not be necessary to make more explicit ancillary orders, but given the position being taken by the parents today, such ancillary orders are now required.”
He extended the authority of the doctors to enable the surgery and all pre-operative work to proceed and ordered the parents not to obstruct health staff.
On Wednesday Justice Gault ruled in favour of health authorities who had sought court guardianship of the baby boy after his parents refused a blood transfusion as part of life-saving heart surgery.
The parents wanted a court order to receive blood from exclusively unvaccinated donors.
Justice Gault delivered his ruling after a lengthy hearing on Tuesday, where Te Whatu Ora-Health New Zealand 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 name suppression, 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 January 31, 2023″.
His ruling said the baby’s parents remain his legal guardians aside from the medical matters covered in the order.
The child has a heart valve disorder requiring urgent surgery and medical experts have said he would normally have received treatment a long time ago.
“His survival is actually dependent on the application being granted,” Paul White, lawyer for Te Whatu Ora, said earlier.
Justice Gault also declined an order sought by Grey for the NZ Blood Service to establish a tailored donor service for the boy to receive blood exclusively from unvaccinated donors.
A lawyer for the blood service, Adam Ross, KC, on Tuesday 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.
White said specialists believed the child’s heart was 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 - against medical advice.
In his conclusion of the 23-page judgment, Justice Gault said he accepted the parents of the baby had genuine concerns about the risk of using blood from vaccinated donors.
“However, the issue here is what is in [the baby’s] best interests.”
The parents’ alternative proposal was not viable, the judge said. “I cannot conclude it is a safe alternative that is in [the baby’s] best interests.
“For these reasons, and given that [the baby] needs urgent surgery, an order enabling the surgery to proceed using [NZ Blood Service] blood products without further delay is in [the baby’s] best interests.”
The ruling drew a furious reaction from the anti-vaccine movement.
Former TV news reader Liz Gunn, now an anti-vaccine activist, appeared in court beside the parents. In an audio message posted to social media shortly after the decision, she revealed she had been trespassed from Starship hospital for 48 hours yesterday morning on what she claimed were spurious grounds.
“New Zealand, I have absolutely devastating news,” Gunn said.
“Little [baby] is going to be handed to Starship hospital. This is wrong on every level.”
The NZ Freedom and Outdoors Party, of which Grey is co-leader, said on social media it was “a bad day in NZ law and medicine and human rights and logical sense”.
