By BILL MADDEN
University of Western Sydney
The ongoing and sometimes emotive debate about risks and rewards of giving birth in hospital or at home is nothing new. What is new is the attention being given to the legal rights and responsibilities of parents and health practitioners.
Consider this recent news: South Australian police have announced criminal investigations of the deaths of two babies in home-birth deliveries. Detectives are said to be closely examining evidence given by witnesses during an earlier inquest to determine if perjury was committed or evidence was withheld or concealed. Charges, including manslaughter, may be laid.
This is a highly unusual development.
As a general rule, few health practitioners are subject to criminal charges in Australia, although the number has perhaps been growing in recent years. The imprisonment of Dr James Peters in Victoria is a recent, albeit unusual, example.
Australia has not yet seen the prosecution of a midwife or doctor following a home birth – though we have seen cases come before disciplinary tribunals, coroners’ courts if the child has died, or civil courts if the child or mother is said to have suffered injury for want of reasonable care.
So how do parents wanting home births and their health-care providers now navigate the legal landscape?
Central to legal arguments about home births is the assessment of risks and the provision of accurate information. The latter is crucial to the question of whether a mother’s decision about where she gives birth is well informed.
Only a few weeks ago, a Victorian coroner reported in relation to the death of a child, Thomas Freemantle, following a home birth. The birth was complicated by cephalo-pelvic disproportion, a condition whereby the baby’s head or body is too large to fit easily through the mother’s pelvis.
The parents agreed that medical practitioners had told them of the risks of a home birth given aspects of the mother’s medical history, but argued they were “not sufficiently firm in their advice that Thomas should be born at hospital”.
The coroner’s view was bluntly stated: “high-risk pregnancies demand birth occur in the safest setting – namely, a hospital which can provide emergency and timely, medical support”. He went on to say that “the safety of the child is paramount and … the wishes of the parents always secondary to ensuring the safest birthing process”.