Bill Madden – Slater and Gordon Lawyers

Associate Professor Tina Cockburn – ACHLR, QUT

Why are we revisiting 2015? Ann Catchlove 2015 “Homebirth: Insurance, Risk and

Registration” since then: July 2016: Sonja MacGregor disqualification 3 yrs, NSW June 2016: Inquest - death of child Nimbin, NSW June 2016: Newspaper - police investigate twin death, South

Australia April 2016: Nicola Dutton misconduct finding, Victoria March 2016: Inquest – death of Car0line Lovell, Victoria Criminal prosecution of Lisa Barrett still reportedly under

consideration

Statistics - Australia Annual births, about 300,000 (AIHW)

About 1,000 births at home (0.3%) [Rate in USA closer to 1%, 35,000]

28,000 midwives

241 (2.2%) indicated that they attended a birth in a home as the primary midwife in 2015 (AIHW)

Small number, but apparently a significant patient safety issue.

Recent statistics – Oregon USA Study of 80,000 births in Oregon USA in 2012 – 2013

After hospital transfers reclassified as belonging to planned out-of-hospital birth category Fetal death rate higher among out-of-hospital births than among in-hospital

births (2.4 vs. 1.2 deaths per 1000 deliveries).

Perinatal death rate (up to 28 days) higher among out-of-hospital births than among in-hospital births (3.9 vs. 1.8 deaths per 1000 deliveries)

Jonathan M. Snowden et al, ‘Planned Out-of-Hospital Birth and Birth Outcomes’ (2015) 373 N Engl J Med 2642

Implications for informed consent?

Our focus today:‘At risk’ planned homebirth legal issues

Themes emerging from recent cases

Home birth, patient autonomy and ‘therapeutic veto’ under the law

Political positions and policies

Patient protections – legal options

1. Health Care Complaints Commission v MacGregor [2016] NSWCATOD M provided care & treatment to patient A wanting home birth for 3rd child (2

prior pregnancies - c/sections due to failure to induce labour at 41 wks)

At close to 42 weeks A presented to hospital with history of irregular but ongoing painful uterine contractions for 2 weeks, then regular painful uterine contractions every 6 minutes for the 12 hours prior to presentation

No fetal movements for 12 hours from the time regular contractions started

Child had died by time of presentation to hospital.

MacGregor [2016] Conclusion: In light of obstetric history, real and substantial questions as to

safety of mother having a home birth: [3]. Expert evidence: [20] Ms Rudner’s report concluded that the adequacy of information

provided about the risks and benefits of Vaginal Birth After Caesarean (VBAC) at home after two prior caesareans was “below what is reasonably expected of a practitioner of an equivalent level and experience”. ... There was no documentary evidence from the notes that the high-risk nature of a planned home birth after 2 prior Caesareans was discussed with the mother, or that alternatives such as seeking VBAC after 2 prior Caesareans in a hospital setting, were discussed.

Finding: [43] The evidence demonstrates that the midwife failed to advise that given her history of two previous caesarean sections the safety of a planned home birth was not supported. Should have strongly advised transfer to hospital for the birth. This conduct was below the standard reasonably expected of an equivalent practitioner.

2. Nursing and Midwifery Board of Australia v Dutton [2016] VCAT 495 P, who had previously undergone an emergency caesarean section

following an obstructed labour engaged Ms Dutton in 2011

Attempted homebirth and subsequent emergency caesarean and delivery of stillborn baby in hospital

Findings: [231] Failure to record information provided and to engage in a timely discussion meant that the patient was likely to be seriously misinformed about: risks of VBAC generally in a home context;

the risks of VBAC specifically in her circumstances, given previous obstructed birth;

timely advice which may have been given by an informed medical practitioner; and

the respective roles and responsibilities being or to be performed as between midwife and the hospital and associated health professionals. Reprimand, suspension 6 months, conditions (supervision, education, audit)

3. R, aged 1 day, Southport Coroners Court, 23 March 2015 Home birth in birthing pool at Canungra, Qld, supervised by midwife (19 years

experience & delivered mother’s first two children)

Gestational diabetes diet controlled. Over 41 weeks.

Baby R died during or shortly after birth.

Cause of death: meconium aspiration - R’s advanced gestational age (41 weeks, 3 days) was an associated risk factor.

Expert Evidence: Considering the gestational diabetes, Dr Birch believed: Should have been some attempts to determine the estimated weight of the infant

prior to delivery so as to ascertain whether this was a situation suitable for a home birth.

Given the mother’s gestational diabetes and the subsequent birth weight of the child, this was not a suitable situation for a home birth.

R, aged 1 day [2015] Findings:

Midwife was aware of maternal age, her two prior macrosomic (larger than average size) babies and that advanced gestational age increased the risks of morbidity and mortality for the baby, including meconium aspiration. There is no record of midwife considering these increased risks or having conducted a risk assessment.

There is no indication to be found in records or other evidence obtained during the investigation to demonstrate that midwife had ensured that the mother was well informed of the potentially serious risks with a water birth. Midwife should have been able to provide evidence of informed consent regarding a water birth, acknowledging the difficulties in administering lifesaving treatment and accepting the possible increased risk of adverse maternal and neonatal outcomes.

4. Inquest into the death of Caroline Emily Lovell, Coroners Court of Victoria, 2016 Obstetric history – first child born in hospital, followed by PPH >

significantly increased risk of similar difficulty in subsequent delivery

Next pregnancy, C attended hospital clinic, saw Dr – said she was having a home birth. Offered alternative options on 4 occasions, including obstetric care, made aware of risks of home birth

C delivered daughter at home in birthing pool, attended by two midwives

C remained in pool after birth, lost consciousness when got out, then later asked to go to hospital saying “I’m dying”

C died at Austin Hospital after sustaining massive blood loss

Caroline Lovell Inquest, 2016 “I find instead that Gaye turned a blind eye to identifying the risk concerning these

possibilities and thereby allowed herself to avoid a discussion of a plan for labour and birth that involved ensuring the availability of appropriate medical support. I further find that it was her bias against in-hospital birthing procedures which caused her to disregard her duty to obtain a Geelong hospital discharge summary, before determining whether or not to agree to participate in Caroline’s home birth plan.

Such knowledge should have alerted her to the risks associated with a home birth in this instance and in the absence of a reliable medical history, she should have followed protocol and recommended strongly against it. Following and if necessary she should finally have refused to participate.

The fact that she chose to proceed with the homebirth notwithstanding these unresolved issues was unprofessional and inappropriate.

Again in the absence of any plausible alternative I find that it was her bias against hospital birthing, which led to this approach.” [69]-[72]

Caroline Lovell Inquest, 2016 … I recommend that women in this State should be put in a position to be able

to make informed choices concerning where and in what circumstances they give birth. It is also important however that people on both sides of this debate recognise that the State of Victoria, has a proper and concurrent interest in ensuring that rules are in place that allow for a high level of safety for both babies and mothers, as well as for the protection of those practitioners properly engaged in this activity, whenever it may occur.

The best way to achieve these various objectives is to ensure that prospective parents are properly informed as to the advantages and disadvantages of various birthing options, while restricting the provision of all planned home birthing services, to properly trained and accredited midwives (and medical practitioners) only: [100]-[101]

5. Nimbin inquest, 2016 Feb 2015 - free birth (no health professional attending) on property at

Nimbin, NSW.

Baby had pulse, but not breathing at birth. Taken to Nimbin Hospital and given ventilatory support. Transfer to Lismore Base Hospital, then Royal Brisbane and Women's Hospital intensive care nursery. Life support turned off 3 days after birth.

Parents urged not to give birth at home because foetus lying sideways (indicating caesarian delivery) and mother had tested positive for hepatitis C - both high risk factors.

Family and Community Services (FACS) notified of risk of serious harm, after a report was made to Child Wellbeing Unit about impending birth.

Nimbin inquest, 2016 Expert evidence: Dr John Mutton O&G classified the birth as an

incomplete breech presentation – babies in such a position should always be delivered by caesarean.

Mother’s evidence: said she did not understand the risks involved, but wanted to avoid going to a hospital.

Both parents denied planning a home birth, despite making no arrangements to have child delivered at local hospital

Paternal influence?

Deputy coroner considered a solicitor's application to appear on behalf of Human Rights in Childbirth.

Themes from the cases• Provision of information to mother was lacking.

• Records were deficient.

• Cooperation/consultation with other health professionals not evident.

• Was the mother a “suitable candidate”? - Vaginal birth after caesarean, twins, breech, previous shoulder dystocia, distance from hospital.

But what if all those errors were overcome - how does the law approach ‘suitable candidate’ issues?

“Women should have choice over their place of delivery. But they should make that choice in full knowledge of the facts, arguments and gaps in evidence. There may be reasons to do with cost and distributive justice that preclude every woman and child being offered the best care possible. But where there is a choice, people should at very least know what is known, and what is not known, about the risks and benefits of each option.”

Julian Savulescu, ‘Is Home Birth Really As Safe As Hospital Birth? “Woman-centred Care” vs “Baby-centred Care”’, University of Oxford Practical Ethics

Homebirth as an exercise of autonomy Competent patients can refuse treatment.

Woman can choose where and how they want to give birth, even if this results in potential conflict with the best interests of the foetus

“if mental capacity is not in issue and the patient, having been given the relevant information and offered the available options, choose to refuse the treatment, that decision has to be respected by the doctors”

Ms B v an NHS Hospital Trust [2002] EWHC 429 (Fam).

Harris v Bellemore [2010] NSWSC 176 H argued that Dr B should not have performed bilateral leg lengthening

surgery at all as he was unsuitable candidate > negligent to not decline to perform surgery: [38]

Held: patient autonomy is paramount consideration

Mr Harris’ suitability for the surgery informs the content of Dr Bellemore’sduty to provide information, but it does not, in my view, sound in any duty to decline the treatment sought. The present case must be approached on the basis that Mr Harris was entitled, and indeed required, to make his own decision as to whether to proceed with the surgery, the critical issue in respect of that decision being the alleged failure to warn: [84]

Morocz v Marshman [2015] NSWSC 325 Allegation that patient unsuitable candidate for surgery and surgeon should not

have proceeded

[167] … it has never been the law that a cosmetic surgeon had a legal duty to refuse elective surgery to a patient if the surgeon’s personal view, or if the reasonable medical view, was or ought to have been that the surgery was unnecessary or unwarranted.

[182] The relevant consent is the informed consent of the patient. It would place medical practitioners in an untenable and intolerable position if their duty also required them, having once properly and adequately explained the risks and side effects of particular surgery to the patient, to exercise what amounted to some kind of therapeutic veto by second guessing the patient’s informed decision to proceed. (appeal heard outcome pending)

But other views on therapeutic veto exist… Inquest Thomas Freemantle, 2014

Expert evidence: “(explain) what the risks are, why you’re concerned about it and then you might have to say look, I can’t go along with what you’re wanting because I just don’t think that’s fair on me as a professional, the colleagues that I’m putting those burdens onto… and that maybe sometimes you just have to say, look I can’t do it.”

Inquest Joseph Thurgood-Gates, 2013 Coroner: “The professional obligation is to progress the discussion with the

patient and to advise of risk even in circumstances where a patient has indicated they do not wish to hear. The professional obligation is also to consider withdrawing from care in sufficient time to enable the patient to make proper alternative arrangements.”

A right to homebirth? Recognition of maternal rights to choose does not necessarily extend to

creating a right to insist on participation in an available home birth program, even in those jurisdictions with ‘human rights’ statutes.

‘I agree with the propositions in these cases about the patient’s right to choose, but that does not extend to forcing a health service provider to provide a service to a patient it has decided in accordance with accepted clinical practice it is unsafe for that patient and her unborn child.’ [312]

Wilson v Western Health (Human Rights) [2014] VCAT 771

In practice

Political positions

Policy positions

Guideline documents

Home Birth AustraliaHome Birth Australia http://homebirthaustralia.org/

“Homebirth safety” page focuses on “uncomplicated pregnancies” and “low risk women” - appears to be silent on when it is not safe.

“Rights and Responsibilities page includes a page listing ‘rights’ and ‘responsibilities’ of the pregnant woman, which does not seem to focus much on what the home birth provider should be responsible for.

See handouts.

RANZCOG Statement on Home Births, 2014 While supportive of the principle of personal autonomy in decision making,

RANZCOG cannot support the practice of planned home birth due to its inherent risks and the ready availability of safer options for labour and delivery in Australia and New Zealand. Where a woman chooses to pursue planned home birth, it is important that reasons for this are explored and that her decision represents an informed choice, considering all the possible benefits and potential adverse maternal and perinatal outcomes.

7. Informed Choice? A decision to give birth at home must be taken in the knowledge that there are relatively few

resources available for the management of sudden unexpected complications that may affect any pregnancy or birth – even those without any acknowledged obstetric risk factors. Women contemplating planned homebirth need accurate information about these risks.

http://www.ranzcog.edu.au/documents/doc_view/2051-home-births-c-obs-2.html, First endorsed by RANZCOG: March 1987; Current: July 2014; Review due: July 2017

ACOG Committee opinion 2016 “..women should be informed that, although a planned home birth is

associated with fewer maternal interventions than planned hospital birth, it is also associated with more than twice the risk of perinatal death (3.9 per 1000 births v 1.8 per 1000 hospital births; odds ratio 2.43) and a threefold increased risk of neonatal seizures or serious neurologic dysfunction (0.6 to 1.3 per 1000 births v 0.22 to 0.4 per 1000 hospital births”

McCarthy, Hospitals and birth centers remain safest setting for giving birth, US obstetricians say, BMJ 2016;354:i4217 doi: 10.1136/bmj.i4217 (Published 29 July 2016)

The Australian College of Midwives supports the choice of midwife-attended homebirth as a safe option for women with uncomplicated pregnancies. 7. Midwives have a responsibility to ensure that their decisions, recommendations and options of care are focused on the needs and safety of the woman and her baby. 8. … Each and every woman has the right to make informed decisions, including consent or refusal of any aspect of her care. Women must be respected in the choices that they make. 9. ACM acknowledges that some women may choose a planned homebirth when this is not recommended by a health care provider. Women should continue to have access to midwifery care whatever their choice. 10. A midwife has the right to decline to continue to provide care according to their clinical judgment and skills, except in an urgent situation where this would compromise the safety of the woman or her baby. https://12-midwives.cdn.aspedia.net/sites/default/files/uploaded-content/field_f_content_file/position_statement_about_homebirth_services_08112011.pdf, Date of Issue: 8 November 2011 Date of Review: 7 November 2014

Australian College of Midwives: Position statement on Homebirth Services, 2011

Australian College of Midwives: Guidance for midwives regarding Homebirth Services, 2014 Practice points

Midwives have a responsibility to encourage women to consult widely and consider the possible benefits and risks of place of birth.

Provision of information to women choosing to give birth at home

Midwives have a responsibility to provide women with access to comprehensive, unbiased, up-to-date and evidence-based information to enable them to make informed decisions about all aspects of their care, including place of birth. Informed decisions may include issues of consent, the right of refusal of a recommended course of care; and the right to refuse care.

https://www.midwives.org.au/sites/default/files/uploaded-content/field_f_content_file/guidance_for_midwives_about_homebirth_services_08112011_0.pdf, Date of Issue: 8 November 2011, Date of Review: 7 November 2014

ACM: National Midwifery Guidelines for Consultation and Referral, 20143.2.2 Informed choice 1. Before commencement of care, the midwife should outline to the woman the scope and boundaries of midwifery care. …2. Midwifery care must be provided in accordance with the principle of informed choice. The midwife must provide the woman with sufficient information to inform the woman’s consent to any procedure and must give the woman the opportunity to consider the advice being offered. The woman is free to accept or reject any procedure or advice. 3. When a woman exercises a choice that is contrary to professional advice or the Guidelines, the midwife should carefully document the woman’s concerns and decision and the advice and information that the midwife provided. …

https://www.midwives.org.au/sites/default/files/uploaded-content/field_f_content_file/online_version_guidelines_3rd_edition_issue_2_20150211_final_0.pdf 3rd ed Revised Edition: May 2013, Issue 2: December 2014

NMBA: Safety and Quality Guidelines for Privately Practicing Midwives, 2016 Effective 1 January 2017

NMBA: Safety and Quality Guidelines for Privately Practicing Midwives, 2016

Do the policies and guidelines do enough?

Lack of blunt indication as to ‘unsuitable candidate’ issues?

By way of contrast, see South Australian document (following)

‘Therapeutic veto’ concept not recognised / explored sufficiently?

South Australian Perinatal Practice Guidelines: Planned Birth at Home in South Australia, 2013 A woman’s choice as to where she will birth her baby should be respected within

a framework of safety and clinical guidelines. The autonomy of pregnant women is protected in both law and jurisprudence, and it is the duty of health professionals to accommodate that autonomy in as safe a manner as possible for both mother and baby.

The United Nations states that the human rights of women include their right to have control over, and to decide freely and responsibly on, all matters related to their sexual and reproductive health.

The selection of high risk women for home birth and the failure of those present to respond adequately to situations of risk arising during pregnancy or labour is associated with an unacceptably high rate of adverse outcomes including perinatal death.

https://www.sahealth.sa.gov.au/wps/wcm/connect/76aaf1004f3219c488eefd080fa6802e/Planned+Home+Birth+Policy+and+brochure-13082013.pdf?MOD=AJPERES&CACHEID=76aaf1004f3219c488eefd080fa6802e Developed 13 August 2013, Next review due: 31 August 2016

Planned Birth at Home in South Australia, 2013 Inclusion Criteria for Planned Birth at Home

Prerequisite: uncomplicated, singleton pregnancy with a cephalic presentation between 37w (259 days) – 42w (294 days) weeks of gestation. Also: No previous caesarean section read patient information brochure, discussed this with the qualified practitioner and signed Consent

Form for Planned Home Birth MR82HB.

Contraindications for Planned Birth at Home The registered practitioners must refuse to proceed with planned birth at home if woman's

completed SA Pregnancy Record is not available to them. Conditions which preclude a woman giving birth at home include:

Obstetric history—previous: caesarean section; postpartum haemorrhage in excess of one (1) litre; shoulder dystocia

Current pregnancy: BMI >35 kg/m² or maternal weight > 100 kg; antepartum haemorrhage; multiple gestations (ie other than singleton fetus); mal-presentation (ie other than cephalic presentation); abnormal placentation (including placenta praevia)

Home environment: more than 30 minutes travelling time by ambulance from the participating hospital

Patient protection: Legal options

After the event

Compensation

NDIS

Before the event

Mandatory reporting

Will the Morocz v Marshman appeal make a difference

The cosmetic surgery guidelines

Patterson v Khalsa [2013] NSWSC 336 D independent midwife attended home birth of P.

P claimed D negligent to recommend home birth and negligent in performing duties as midwife, which resulted in him suffering hypoxia during birth and cerebral palsy.

D filed defence, but delays meeting court schedule and serving witness statements and experts reports. D then wrote letter to Court stating she did not intend to participate in any future Court process.

Held: clear that D no longer wished to pursue her defence“[26] The plaintiff should not be required to expend any additional time or costs in establishing his case on liability and I conclude that the defence should, therefore, be struck out and default judgment entered.”

Damages assessed at $6,606,583

No insurance, unable to recover from D personally

Melanie Carre v Maggie Lecky-Thompson, 1999 unreported Midwife attempted to deliver retained placenta but snapped cords >

hemorrhaging. Patient lost half blood supply, suffered kidney failure, underwent kidney transfer, two hip replacements and other disabilities

Nurses tribunal: midwife’s care during pregnancy and labour constituted “a lack of adequate skill knowledge and care”

Failed to provide adequate advice concerning risks associated with twin home birth, failed to promptly respond to mother’s post partum blood loss, and failed to transfer the mother to hospital for over two hours after she started losing blood.

Held: negligent failure to advise that delivery of twins at home unsafe and prudent to deliver in hospital

No insurance, D bankrupt

National Disability Insurance Scheme Incomplete coverage as yet.

Provides ‘safety net’ financial support for children born disabled.

Level of disability relevant.

Reasonable and necessary supports.

Excludes income support (Centrelink), health & education.

Mandatory Reporting: Practitioners Nursing and Midwifery Board of Australia v Dutton (Review and

Regulation) [2016] VCAT 495 Nicola Dutton reported to APHRA by Executive Director of Nursing and Midwifery

at Royal Womens > Notification in relation to the professional conduct of midwife as primary carer following an attempted homebirth and subsequent delivery of a stillborn baby by emergency Caesarean at hospital

Investigation into the death of R, aged 1 day, Coroners Court, Southport 23 March 2015 GCH doctor who attended R advised Qld Police she had concerns about circumstances of R’s

death and care provided by midwife including in relation to suitability of a home birth, apparent delay in identifying R was in distress and seeking emergency medical assistance, and adequacy of resuscitation provided to R.

Dr Birch so concerned about adequacy of care provided by midwife that felt obligated to report her conduct to AHPRA under mandatory reporting rule.

Mandatory Reporting: Children AA & Ors v Department of Family and Community Services [2016] NSWSC 842

Allegations of child sexual assault against father Mother became pregnant – Department of Community Services completed “unborn high risk

birth alert” Injunctions granted to parents restraining Department from removing child when born Sexual assault trial did not proceed (nolle prosequi 13 Nov 2014) 26 Nov 2014 Department closed file –no further action taken Parents applied to court for declaration that placement of a “High Risk Birth Alert” at the

local District hospital in regard to the birth of the child was beyond the powers conferred on the Secretary and the Department under the Children and Young Persons (Care and Protection) Act 1998 (NSW)

Held: No declaration as it would lack utility because High Risk Birth Alert no longer current or effective no suggestion that no power to issue “High Risk Birth Alert”

Appeal in Morocz v Marshman As noted earlier:

[167] … it has never been the law that a cosmetic surgeon had a legal duty to refuse elective surgery to a patient if the surgeon’s personal view, or if the reasonable medical view, was or ought to have been that the surgery was unnecessary or unwarranted.

Is that always correct?

Query disciplinary proceedings.

[182] The relevant consent is the informed consent of the patient. It would place medical practitioners in an untenable and intolerable position if their duty also required them, having once properly and adequately explained the risks and side effects of particular surgery to the patient, to exercise what amounted to some kind of therapeutic veto by second guessing the patient’s informed decision to proceed.

Cosmetic surgery guidelines: 1 October 2016 See handout.

Provision to the patient of information as to qualifications and experience: [4.1];

Before any major procedure, all patients under the age of 18 must be referred for evaluation to a psychologist, psychiatrist or general practitioner , who works independently of the medical practitioner who will perform the procedure, to identify any significant underlying psychological problems which may make them an unsuitable candidate for the procedure.

The same applies to adult patients if there is an indication that the patient has ‘significant’ underlying psychological problems which may make them an unsuitable candidate for the procedure. ([3.4], [2.4]).

A possible fiduciary duty at [2.7], which requires that a medical practitioner should decline to perform a cosmetic procedure if they believe that it is not in the best interests of the patient.

What more could follow? Obligatory written advice as to home births (?the Oregon data).

Obligatory written advice as to ‘unsuitable’ home births.

ACOG Committee Opinion: The Committee....considers fetalmalpresentation, multiple gestation, or prior caesarean delivery to be an absolute contraindication to planned home birth.

Obligatory child at risk reporting for ‘unsuitable’ home births.

Civil compensation actions for failure to make mandatory reports.

Bill Madden – Slater and Gordon Lawyers

Associate Professor Tina Cockburn – ACHLR, QUT