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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-11-23 Daily Xml
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Parliamentary Committees

LEGISLATIVE REVIEW COMMITTEE: INQUIRY INTO STILLBIRTHS

The Hon. G.A. KANDELAARS (15:59): I move:

That the report of the committee, on its inquiry into stillbirths, be noted.

On 24 November 2010, the Legislative Review Committee resolved to inquire into and report on the adequacy of the current mechanism for the investigation of stillbirths and, in particular, in what circumstances the Coroner should be given jurisdiction to investigate them.

The committee held the inquiry in response to a motion initially moved by the Hon. Iain Evans in the other place in response to a petition from Ms Myf Maywald. Ms Maywald had publicly lobbied for a change to the law to allow the Coroner to investigate stillbirths after being informed that the Coroner did not have the jurisdiction to investigate the circumstances surrounding the stillbirth of her daughter Polly.

The jurisdiction of the Coroner is dependent upon there being the death of a person. Currently, the Coroner cannot investigate the circumstances surrounding a stillbirth because a stillborn child is not considered a person for the purpose of the Coroner's Act or, indeed, for the purpose of any other law of the state. Whether or not an infant is a person for the purpose of the law is determined by the common law 'born alive rule'. To satisfy the born alive rule an infant needs to have completely left the mother's body and exhibited some sign of life, either at or after birth.

The Supreme Court of South Australia most recently considered the born alive rule in June 2010 in the case of Barrett v the Coroner's Court of South Australia. It affirmed the decision of Deputy Coroner Schapel to hold an inquest into the circumstances surrounding the birth of an infant who reportedly did not take a breath after delivery. The court agreed that the pulseless electrical activity detected in the infant was a sign of life and enough to satisfy the born alive rule even though the infant did not take a breath.

In 2009, there were 140 stillbirths recorded in South Australia; 20 of those were from unknown causes. Currently, only stillbirths occurring in a hospital can be subject to formal investigation. This takes the form of either an internal hospital review or a root cause analysis under the Health Care Act 2008. Not all the information and recommendations from the investigation are available publicly or even to the concerned parents. Parents are entitled to request an autopsy, which is conducted by the State Perinatal Autopsy Service.

All stillbirths occurring in a hospital are examined by the Maternal, Perinatal and Infant Mortality Committee, and the committee consists of medical professionals and health practitioners who analyse and examine the clinical reasons behind infant deaths. The chair of the committee is appointed by the Minister for Health and its members are appointed by the chair on recommendation from professional representative bodies and healthcare providers. Its members include obstetricians, GPs, pathologists and midwives.

The Maternal, Perinatal and Infant Mortality Committee publishes statistics and general recommendations in its annual report. It is not required to report publicly or to examine systemic issues that may have contributed to a stillbirth. The committee also does not have any formal reporting requirements to hospitals regarding the outcome of its investigations.

Evidence to the inquiry indicated that parents are not aware of the Maternal, Perinatal and Infant Mortality Committee, its role or its functions. In light of this, the committee recommended that the Minister for Health directs that any reports or recommendations from the Maternal, Perinatal and Infant Mortality Committee be formally provided to the relevant hospital for their response and that these reports be provided to parents on their request.

It also recommended that it be mandatory for annual reports to be published and tabled in both houses of parliament. The committee was also of the view that the expertise of the Maternal, Perinatal and Infant Mortality Committee should be utilised in any hospital investigation and, therefore, recommended that they participate in any root cause analysis undertaken under part 8 of the Health Care Act 2008.

Submissions regarding the need for coronial jurisdiction for stillbirths varied widely, as did opinions about the circumstances in which such an investigation should occur. The committee heard evidence from a range of representative organisations, such as the Law Society, the Australian Medical Association, the Australian Nursing and Midwifery Federation, the Royal Australian and New Zealand College of Obstetricians and Gynaecologists, Forensic Science SA, the Attorney-General, and the parents' support group Stillbirth and Neonatal Death Support (SANDS). The committee also received submissions and heard evidence from the State Coroner, Mark Johns, and the Deputy State Coroner, Anthony Schapel.

The committee heard first-hand evidence from many parents of stillborn children who were strongly in support of a coronial jurisdiction for stillbirths. They submitted that the current hospital-based investigation system was inadequate and lacked independence and transparency. They also submitted that there was a lack of information available to them. This heightened the grief and guilt they felt and did not assist in satisfying their need for answers as to the cause of their child's death. They were of the view that a coronial investigation would not only give them answers but would also prevent such deaths from occurring in the future.

The majority of submissions to the committee from parents were about stillbirths occurring in a hospital environment, not a home birth situation. As result of submissions from parents, the committee recommended that the health minister review hospital protocols and policies regarding the type and manner of support and information provided to parents who experience stillbirths.

The committee was also concerned to ensure that a system of hospital investigation of stillbirths is consistent in both public and private hospitals and that all other relevant healthcare providers, such as nurses and midwives, have clear protocols in place to deal with situations where a stillbirth occurs and are all well informed regarding the process of investigation of stillbirths. The committee therefore recommended that the minister for health liaise with relevant agencies and the federal minister for health to ensure that protocols and policies regarding the investigation of stillbirths are consistently applied to all healthcare institutions and by all healthcare providers.

Many of the parents expressed their shock and distress that their stillborn child was not considered a person for the purposes of the law. Given modern medical technology and the ability to monitor and ascertain information about a child's health in utero, such as heart rate and even visual images, they were also concerned that there seemed to be no independent investigation available to ascertain the cause of their child's death. It seemed to them an anomaly that medical science treated their child as a person, yet the law did not.

However, many submissions to the inquiry expressed the view that the current system of investigating stillbirths was adequate and that the Coroner should not be involved in any investigation. The Australian Nursing and Midwifery Federation's submission expressed concerns about the legal and other consequences of extending the Coroner's jurisdiction in terms of the potential effect on the rights of mothers and the legal status of the unborn child. They expressed the view that, rather than extending the coronial jurisdiction, the current functions and powers of the Maternal, Perinatal and Infant Mortality Committee should be extended to better meet the needs of parents.

The Stillbirth and Neonatal Death Support group (SANDS) outlined their concerns about the effect that coronial investigation may have on grieving parents and their ability to spend as much time with their child as possible. Some submissions encouraged coronial involvement but only for stillbirths occurring in certain limited circumstances, such as where an infant can be shown to be alive immediately before delivery or where the parents request an investigation.

The Department of Health and the Maternal, Perinatal and Infant Mortality Committee made a joint submission and gave evidence to the inquiry. Their view was that the current mechanism for investigating stillbirths occurring in hospitals was thorough and more than adequate to meet the needs of parents. They expressed the view that stillbirths occurring in home birth situations may benefit from coronial investigation as well as the so-called intrapartum stillbirths where the infant dies during delivery.

The Australian Medical Association's submission was strongly in support of extending coronial jurisdiction to stillbirths in certain circumstances, especially those occurring in the home births environment. Conversely, the Royal Australian and New Zealand College of Obstetricians and Gynaecologists expressed the view that the current system of investigating stillbirths and other neonatal deaths was more than adequate and could not be improved by the involvement of the Coroner.

The view expressed in evidence varied as to the point at which coronial jurisdiction should commence, whether by reference to gestational age, stage of delivery, the expectation of a healthy baby, the viability of the infant or at the Coroner's discretion. In light of the evidence, the committee agreed that there was a need for some mechanism whereby the Coroner could investigate stillbirths in certain circumstances. The committee considered it was undesirable to extend to coronial jurisdiction by reference to the gestational age of the infant or by reference to other medical terminology, given the potential effect on other provisions in legislation and the potential to alter the born alive rule.

The committee notes that these concerns were shared by the Attorney-General in his submission who also indicated his support for an extension of the Coroner's jurisdiction to encompass stillbirths in certain circumstances. The committee, therefore, recommends that section 21(1)(b) of the Coroner's Act be amended to allow for an inquest into stillbirths of unexpected, unnatural, unusual, violent or unknown causes.

Currently, the Coroner must investigate reportable deaths which include state deaths from unexpected, unnatural, unusual, violent or unknown causes. The committee considers this language to be useful in describing the type of stillbirths which should require a coronial inquest. The Coroner and Deputy Coroner expressed the view in evidence to the committee that this formulation of investigating stillbirths of unnatural or unusual causes would be reasonable and would fit within the test already applied by the Coroner's Court in relation to investigating deaths.

Section 21(1)(b) of the Coroner's Act currently provides that an inquest is available if the State Coroner considers it necessary or desirable to do so or on the direction of the Attorney-General in the case of certain other events such as the disappearance of any person or a fire or accident that causes injury to a person or property. If this provision was amended to include stillbirths of unexpected, unnatural, unusual, violent or unknown cause, the Coroner would then have a discretion as to whether or not to hold an inquest. A person who considers that an inquest is warranted could then petition either the Coroner or the Attorney-General for an inquest into the stillbirth.

Having inquests at the Coroner's discretion, rather than categorising stillbirths as reportable deaths which require a mandatory investigation, will allow due consideration of the wishes of the parents who do not want any investigation. It would also give the Coroner the discretion to only inquest those matters which are in the public interest where the cause of the stillbirth is unknown, occurs in unusual circumstances, or where there were some circumstances which, in the opinion of the Coroner, warranted further investigation. It would also encompass stillbirths that occur in both a hospital and a home birth environment.

The committee highly regards the public interest role that the Coroner has in conducting inquests, especially where there have been systemic failures and in making recommendations which effect change. The committee also recommended that further resources be provided both to the Coroner's Court and hospitals to enable the committee's recommendations to be implemented.

On behalf of the committee, I express my thanks to all those who contributed to the inquiry, to the members of the committee, both in this place and the other place, and the committee staff. It was pleasing that this report was a bipartisan one (that is not always possible in this place, as we know) and that all members worked together and gave very careful consideration to the recommendations, given the sensitivity and often complexity of the issues involved. I would especially like to thank the parents and families who made submissions and gave evidence about their personal experiences of the stillbirth of their children. I acknowledge how difficult it must have been to give evidence about such tragic and traumatic events. I commend the report to the council.

Debate adjourned on motion of Hon. J.M.A. Lensink.

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