Australian Supreme Court rules against homebirth midwife

Australian midwife and homebirth advocate Lisa Barrett has lost her bid to avoid an inquest into the birth and death of a baby who died under her care.

Barrett claimed that the death of Tate Spencer-Koch should not be investigated because a baby who dies before birth is not legally a person. In other words, because Barrett was so inept at resolving the shoulder dystocia (40 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.

But the ambulance crew, which arrived several minutes after the baby’s birth, pointed out that Tate was alive at the time of birth. Although she had no heartbeat, an EKG revealed electrical activity of her heart (pulseless electrical activity or PEA), the last stage before death. If she had electrical activity when they arrived, she was surely alive at the time of birth.

Barrett countered that electrical activity of the heart should be ignored since it was not mentioned at the time that the definition of a “person” under Australian law was issued in the 1800’s. That definition required independent breathing on the part of the baby. Barrett thought she had found a way to avoid an inquest by invoking a technicality and appealed to the Australian Supreme Court.

The Court rejected Barrett’s argument. The opinion came down yesterday.

In a unanimous decision, the Full Court today rejected a midwife’s application for a judicial review of a decision by Deputy Coroner Anthony Schapel.

Lisa Barrett claimed Mr Schapel had exceeded his jurisdiction by conducting an inquest into the July 2007 death of newborn Tate Spencer-Koch…

Common law dating back 130 years holds that only babies who breathe independently of their mothers are “born alive” and have legal rights.

However, Mr Schapel ruled a weak, electrical rhythm in Tate’s heart was a sign of life and held an inquest…

Ms Barrett asked the Full Court to overturn that decision, saying rhythms were only “a precursor to life”.

Today, Justice Richard White disagreed.

He said a NSW decision held the “born alive” rule was based on “anachronistic and antiquated factors” and “primitive” medical knowledge.

“It would be incongruous, to my mind, that the presence of a bodily activity indicating a successful resuscitation may be possible … should nevertheless be disregarded as a sign of life,” he said.

“The Coroner’s Court is not confined only to the kinds of evidence available to the courts in the 18th or 19th Centuries.”

The investigation will now proceed and Barrett is right to be concerned that she may be found guilty of malpractice. Moreover, the case has implications beyond the malpractice of a specific midwife.

Attorney-General John Rau said the inquest would significantly impact regulation of the homebirths industry.

“One of the questions no doubt the Corner will have to consider is had this delivery been managed in a medical setting, whether the child would have been in any way compromised let alone died,” he said…

“It shines a bit of light on an area that’s been of concern for quite some time.”

No wonder Barrett has made such strenuous efforts to avoid investigation.

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