Legal rights of infants and parents

3 April 2012

Kathryn Booth, Melbourne

There have been a series of issues in recent months that have made headlines relating to the legal rights and responsibilities of parents and obligations to infants. In particular, the role that Coronial inquests play in the legal process and in providing answers to grieving families. Lawyers from Maurice Blackburn's Medical Law Department often see the impact on clients, and they have been at the forefront of bringing these issues to public attention.

Isabelle's Law

Losing a baby is something that every parent fears, and if something goes terribly wrong and the baby dies, they want to know why. Unfortunately, for parents in Victoria, if their child is stillborn, they don't get the opportunity for a Coronial inquest into the death of their baby because Victorian law doesn't recognise a life until the first breath has been taken.

There are more than 2000 stillborn babies in Australia each year - this figure is higher than the national road toll. In Victoria, parents are issued with a birth certificate for their baby, but no death certificate. Maurice Blackburn is supporting the Isabelle's Law campaign run by Leader suburban newspapers, named in memory of a 39-week old stillborn who had been a healthy baby until her birth when she was still. The Victorian Coroner is not allowed to investigate her death - even if grieving parents are desperate for answers - because she never took a breath. The issue of stillbirth law reform was also picked up by The Age.

Procedures on infants

In NSW, Maurice Blackburn recently represented the family of 10-month-old Tama Galiere at his Coronial inquest. Tama died in the Sydney Children's hospital in June 2008. He was a happy, healthy baby who was admitted to the hospital to receive antibiotics for an eye infection. A percutaneous intravenous central catheter (PICC) was inserted under general anesthetic to administer the antibiotics. Tama died two days later. The port-mortem report for Tama revealed myocarditis (inflammation of the heart) with a distinct possibility of physical trauma due to placement of the PICC line.

Tama's death raises issues about the insertion and management of PICC lines in babies and whether the hospital had appropriate clinical guidelines in place to guide good practice. His parents are keen to understand the circumstances of their son's death. The inquest hearing was in January and an outcome is expected later this year.

Maurice Blackburn also represented the family of one-month-old Joshua Elliott at a Coronial Inquest into his death at Sydney Children's Hospital following a central catheter insertion in September 2009. Joshua had been born with a gastric disorder of gastrochesis which was surgically corrected at birth. He required the central line so he could receive additional nutrition and the plan was for a PICC line to be attempted and if this failed for a surgical central line to be inserted the next day. Unfortunately, Joshua was consented for a PICC line and/or a percutaneous line which is another option. There was no mention in the consent form of a surgical central line option. The hospital did not have readily available the particular central line the doctor required and he used a radial arterial catheter instead. The catheter which was found to be shorter and stiffer than the central venous line that should have been used and it was placed in a position that was not optimal. At some stage during the night, the catheter perforated the walls of the vessel causing the nutrition Joshua was receiving to flood his lungs. He suffered a cardio respiratory arrest and died the next morning.

The Coroner's findings focused on the serious miscommunication between the doctors looking after Joshua and his mother, who was adamant she did not consent to a percutaneous line being inserted. The Coroner made a broad recommendation that there be an information pamphlet that is clear and easy to read, listing the pros and cons of the procedure or operation to be set out and that the document be signed by the parent or patient.


Co-sleeping has also been a topic of much concern for parents over many years, and Maurice Blackburn has represented several families in Queensland Coronial investigations who have lost healthy newborn babies after mothers have fallen asleep and accidently smothered them. Changes to the Queensland health system have been sought where these tragic deaths have occurred in a hospital, such as the death of baby Bela Heidrich in Rockhampton in 2008. Unfortunately, Bela was not the first baby to die in such circumstances, and concerns were raised after Bela's inquest that systemic failures of the health system should have been addressed earlier.