Te Whatu Ora Health New Zealand Te Toka Tumai Auckland v I
[2025] NZHC 1320
•23 May 2025
NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION,
PLEASE SEE https://www.justice.govt.nz/family/family-court/after-the-family- court/restrictions-on-publishing-information/
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2025-404-001164
[2025] NZHC 1320
IN THE MATTER OF an application pursuant to s 31 of the Care of Children Act 2004 to place a child under the guardianship of the Court AND
IN THE MATTER OF
“M”
BETWEEN
TE WHATU ORA HEALTH NEW ZEALAND TE TOKA TUMAI AUCKLAND
Applicant
AND
“I”
“Y”
Respondents
Hearing: 23 May 2025 (via telephone) Appearances:
D McGill for the Applicant
Judgment:
23 May 2025
JUDGMENT OF WALKER J
[Urgent application without notice to place a child under the guardianship of the court for a particular purpose]
This judgment was delivered by me on 23 May 2025 at 7.50 pm Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
Solicitors:
Duncan Cotterill, Auckland
TE WHATU ORA HEALTH NEW ZEALAND v “I” and “Y” [2025] NZHC 1320 [23 May 2025]
[1] M is a 15-month-old baby boy. He was born with multiple congenital anomalies. Multiple organs are insufficient and/or failing according to the doctors treating him. He has spent much of his life in hospital.
[2] This morning his condition rapidly deteriorated. He has been transferred to the paediatric intensive care unit overnight. His treating physicians say that he is uncomfortable and in a lot of pain.
[3] M’s parents appear unable to accept or face the severity of their son’s condition. Materially for present purposes, they are unwilling to consent to the administration of pain medication, apart from paracetamol. They wish for their baby boy to be intubated if he becomes unable to breathe on his own.
[4] Their refusal to consent to doctors administering opiate based pain relief has led to this urgent application. It was filed at 4.51 pm this afternoon. I convened a telephone hearing with counsel for the applicant, Te Whatu Ora ǀ Health New Zealand Te Toka Tumai Auckland (Health New Zealand) at 5.45 pm.
[5] Attending the telephone hearing was Mr McGill and Dr Milledge who has made an affidavit (unsworn) in support of the application. Dr Milledge is the primary physician for M.
[6]The application is for the following orders:
(a)An order pursuant to s 31(1)(a) of the Care of Children Act 2004 (COCA) that M be placed under the guardianship of the High Court from 23 May 2025 until completion of his treatment and at the latest until 23 November 2025.
(b)An order pursuant to s 31(1)(b) of COCA appointing Dr John Milledge and Dr Cedric Sottas, severally, as agents of the High Court for the particular purpose of consenting to the administration of pain medication to M:
(i)where the administration of this pain medication is in accordance with good clinical practice and in M’s best interests as assessed by Dr Milledge or Dr Sottas.
(c)An order pursuant to s 31(1)(b) of COCA appointing M’s parents, I and Y, as general agents of the Court for all purposes other than consenting to the administration of pain medication to M.
(d)Directing Dr Milledge and Dr Sottas to keep M’s parents informed at all reasonable times of the nature and progress of M’s condition and treatment.
(e)Reserving leave to the parties to apply to the court for a review of these orders should this be warranted by any change in circumstances.
(f)Suppressing the details of this application under s 139 of COCA.
[7] I accept based on the medical evidence presented that the application is urgent such that proceeding without notice is warranted. I was advised that M’s parents were informed that the applicant would seek these orders if consent was not given but there was insufficient time to inform them of this hearing.
[8] It is however clear that M’s parents do not consent to administering opiate based pain relief which may stem from a concern that such pain relief can have a depressant effect on respiratory function.
Preliminary matters
[9] As a preliminary procedural matter, I grant Health New Zealand permission to commence this proceeding by originating application as I am satisfied it is in the interests of justice to do so.1
[10] I also grant Health New Zealand leave pursuant to s 31(2)(g) of the Care of Children Act 2004 (COCA) to apply for the orders under s 31.
1 High Court Rules 2016, r 19.5.
[11] Finally, by way of procedural matters, I suppress the details of this application under s 139 of COCA to preserve the privacy of the family.
Discussion
[12] The paramount interest for this Court is the welfare and best interests of M. This is mandated by s 4 of COCA. I am satisfied on the material presented to me and after hearing Mr McGill that the orders sought are necessary for M’s welfare and best interests.
[13] However, out of concern that the views of M’s parents have not been heard by the Court, I make interim orders only which are to be subject of review at the earliest opportunity. For that reason, the orders made are to expire at 5 pm on Wednesday, 28 May 2025, unless extended or further orders are made by the Court.
[14] This judgment and the orders should be served on the parents as quickly as possible by the most expedient manner. They may be served by their latest known email address. The proceeding will be called at 10 am in the Duty Judge List on Wednesday, 28 May 2025 for review.
[15]I now set out the reasons why I have made this order.
[16] There are 12 health practitioners involved in M’s care. I have been provided with clinical notes from a meeting of these health practitioners. It is apparent that it is the collective opinion of the medical team that:
(a)M’s prognosis is poor and sadly he is unlikely to survive. This is still the case even with the most aggressive, life-prolonging interventions possible.
(b)There are no treatments that will both significantly prolong M’s life, whilst simultaneously preventing and treating his current suffering.
(c)There is sufficient evidence that M has pain behaviours that are compelling, and his current severe suffering makes his quality of life extremely poor.
(d)M needs the immediate administration of pain relief, specifically opiates, alongside any other palliative treatment to provide comfort directed to his care.
[17] Dr Milledge also states that it is not currently in M’s best interests to be intubated. I understand his explanation to be that this is or would be an intrusive or painful treatment that cannot fix his underlying conditions. Placing him on a ventilator would result in a very low chance of him being able to extubate again. This conflicts with M’s parents’ wishes. However, acting or not acting to intubate is not a matter within the scope of the orders I have made.
[18] The treating physicians indicate that they will avoid the use of opiate treatment where appropriate. However, they say that paracetamol alone is not sufficient to treat M’s severe pain.
[19] Dr Milledge properly acknowledges that M may stop breathing at any time either due to his condition and/or as a collateral side effect of the opiate medication. The treating team all agree that it would not be in M’s best interests to provide additional treatment if his breathing deteriorated. Rather, the goal is to provide comfort-orientated care.
[20] Dr Milledge sets out the discussion he had with M’s parents in which they clearly did not consent to opiate based pain relief. There is no suggestion that there may be an equally effective non opiate based form of pain relief which is appropriate in the clinical circumstances.
[21]I am satisfied that I have jurisdiction to make the orders under COCA.
Guardianship orders—applicable principles
[22]Section 31 of COCA provides as follows:
31 Application to court
(1)An eligible person may make an application to a court with jurisdiction under this section for—
(a)an order placing under the guardianship of the court a child who is not married, in a civil union, or in a de facto relationship:
(b)an order appointing a named person to be the agent of the court either generally or for any particular purpose.
(2)In this section, eligible person, in relation to a child, means any of the following persons:
(a)a parent or guardian of the child:
(b)a grandparent or an aunt or an uncle of the child:
(c)a sibling (including a half-sibling) of the child:
(d)a spouse or partner of a parent of the child:
(e)the child himself or herself (who may apply without any litigation guardian):
(f)the chief executive:
(g)any other person granted leave to apply by the court.
[23]The High Court and the Family Court have concurrent jurisdiction under s 31.2
[24]Section 33(1) provides:
33 Orders of court
(1)A court to which an application is made under section 31 may—
(a)make an order described in section 31(1)(a); or
(b)make orders described in section 31(1)(a) and (b); or
(c)make—
(i)an order described in section 31(1)(a); and
(ii)an order appointing any person whom the court thinks fit to be the agent of the court either generally or for any particular purpose.
[25]Section 36(3) relevantly provides:
(3)If the consent of any other person to any medical, surgical, or dental treatment or procedure (including a blood transfusion) to be carried out on a child is necessary or sufficient, consent may be given—
(a)by a guardian of the child;…
2 Care of Children Act 2004, s 30.
[26]Importantly, s 4(1) of the Act provides:
4 Child’s welfare and best interests to be paramount
(1)The welfare and best interests of a child in his or her particular circumstances must be the first and paramount consideration—
(a)in the administration and application of this Act, for example, in proceedings under this Act; and
(b)in any other proceedings involving the guardianship of, or the role of providing day-to-day care for, or contact with, a child.
(2)Any person considering the welfare and best interests of a child in his or her particular circumstances—
(a)must take into account—
(i)the principle that decisions affecting the child should be made and implemented within a time frame that is appropriate to the child’s sense of time; and
(ii)the principles in section 5;…
[27] As the Court of Appeal confirmed in Re J (An infant): B and B v Director- General of Social Welfare,3 this Court has jurisdiction, where the interests of the child so require, to place the child under the guardianship of the Court and authorise a suitable person (such as a doctor) on its behalf to consent as guardian to medical treatment. This may be done so as to override the refusal of consent by the natural parents.
[28] There have been many instances where the Court has placed children under the guardianship of the Court for this purpose.4
[29] I am satisfied that there is a real and substantial risk that the applicant will need to administer M pain medication because of his medical condition and that, without such relief, he will needlessly suffer.
3 Re J (An infant): B and B v Director-General of Social Welfare [1996] 2 NZLR 134 (CA) at 142 (under s 9 of the Guardianship Act 1968).
4 In this Court, see for example Te Whatu Ora Health New Zealand Te Toka Tumai Auckland v A and N [2023] NZHC 1864; Auckland District Health Board v S [2020] NZHC 300 and Auckland District Health Board v E [2013] NZHC 2154, [2014] NZFLR 451. The Court’s jurisdiction is unaffected by the restructuring of the hospital system such that the applicant is Health NZ instead of the District Health Board: Te Whatu Ora, Health New Zealand, Te Toka Tumai v C and S [2022] NZHC 3283, [2022] NZFLR 398 at [35].
[30] It follows that I am also satisfied that the Court has grounds for taking guardianship of M so that consent to the administration of pain medication can be made in accordance with best clinical practice as assessed by his doctors.
[31] Finally, I am satisfied that the circumstances laid out in the affidavit of Dr Milledge justify proceeding without hearing from M’s parents, while cognisant of their opposition to this course. The interim nature of the orders made are intended to mitigate that situation.
[32]These are the reasons I make the following orders this evening:
(a)Granting the applicant permission, pursuant to Rule 19.5 of the High Court Rules 2016, to commence this proceeding by originating application.
(b)Granting the applicant leave, pursuant to section 31(2)(g) of the Care of Children Act 2004, to apply for an order that M, be placed under the guardianship of the High Court.
(c)Placing M under the guardianship of the High Court from 23 May 2025 until 5pm Wednesday 28 May 2025, unless extended by the Court.
(d)Appointing Dr John Milledge and Dr Cedric Sottas severally as agents of the High Court for the particular purpose of consenting to the administration of pain medication to M, where the administration of such pain medication is in accordance with good clinical practice and in M’s best interests as assessed by Dr Milledge or Dr Sottas.
(e)Appointing M’s parents, I and Y, as general agents of the High Court for all purposes other than the consenting to the administration of pain medication to M.
(f)Directing Dr John Milledge or Dr Cedric Sottas to keep M’s parents informed at all reasonable times of the nature and progress of M’s condition and treatment.
(g)No order is made in respect of costs.
(h)The following directions are also made:
(i)The application is to be called on Wednesday, 28 May 2025 on the duty Judge list for review at 10 am.
(ii)The respondents are to file any notice of opposition and evidence in support by 12 pm on Tuesday 27 May 2025.
[33] The application, evidence, and this order may be served on the respondents by their last known email address.
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Walker J
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