Using a technicality to avoid responsibility for a homebirth death

Australian midwife Lisa Barrett is trying desperately to avoid responsibility for a homebirth death over which she presided. As I explained in the post Is a baby who dies during homebirth a person?, the case is the typical homebirth tragedy, the kind that demonstrates that “trusting birth” is no substitute for emergency personnel and equipment.

Tate Spencer-Koch, had a vigorous heartbeat in the moments before the birth of her head, but after her head was born her shoulders were stuck. This is known as a shoulder dystocia and is an obstetric emergency of the highest order. The umbilical cord is trapped between the baby’s body and the walls of the vagina, cutting of the flow of oxygen to the baby. If the baby is not delivered within 5-10 minutes, permanent brain damage and even death can result.

In the hospital setting, shoulder dystocia is often anticipated if certain risk factors are present such as an unusually large baby, or an unusually slow labor. Shoulder dystocia is best managed by a team approach and even after the baby is delivered, an expert resuscitation including intubation is often required.

In the home setting, shoulder dystocia can quickly turn into a disaster. In the case of Tate Spencer-Koch, Barrett took an appalling 20 minutes or more to deliver the baby’s shoulders a truly extraordinary amount of time. When the baby was finally born, Barrett claimed, the baby was dead.

The ambulance crew begged to differ. Although Tate had no heartbeat, an EKG revealed electrical activity of her heart, the last stage before death. The ambulance crew believes that Tate was alive at the time they arrived and therefore was certainly alive at the time she was born. The distinction is critical, because the law gives the coroner power to investigate the death of “persons” and a stillborn baby is not a person under Australian law. The coroner initially accepted the testimony of Barrett and ruled that he did not have jurisdiction over the case.

Evidently Tate’s parents refused to accept this and requested and additional hearing in which the EMTs testified. After that hearing, the coroner reversed his decision and ruled that Tate had been alive and therefore her death should be investigated.

Barrett has appealed the new ruling and has taken the appeal to the Australian Supreme Court. As she writes on her blog:

Following the Coroners decision earlier this year to give himself Jurisdiction on a baby who had a PEA after birth with no sign of life, I would like to question his decision.  The transcript of his findings were in contradiction to his experts and in my opinion the law.  After seeking advice I have applied for a Judicial review.  We also applied for the inquest to be postponed until after the review.  The coroner held a small hearing last week where he declined to postpone so we went on to an emergency hearing at the supreme court.  We were granted an injunction to make the coroner postpone and the right to be heard.  A date will be set soon.  The process is massive, scary and it appears that I am up against the coroner, the Health department, the Ambulance service and the Attorney General.

This is a case of world interest, the rights of the coroner, the power of law over the common man and the definition of life.  I find it completely frustrating and frightening that when the case was at the coroners court there were press making our lives hell..

Barrett is desperate to avoid a review of Tate’s death because of the possibility that she will be accused of malpractice. She has every right to use all the legal tools at her disposal, but let’s be honest about what is going on here.

Midwife Lisa Barret is claiming that the death should not be a coroner’s case because she was so inept at resolving the shoulder dystocia (20 minutes until delivery of the shoulders) that the baby died before the entire body was born. And because she was incapable of saving the life of an otherwise healthy baby, as opposed to merely rendering it brain damaged, she should escape investigation.. It is outrageous for Barrett to proclaim that she is fighting for anyone else’s rights. A baby is dead and she wants to use a technicality to avoid investigation. This case is about nothing more than saving Lisa Barrett’s right to practice midwifery, no more and no less.

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