OF THE COMMISSION OF INQUIRY ESTABLISHED ON THE 12TH OF JANUARY 2010 BY HIS EXCELLENCY JAMES ALIX MICHEL, PRESIDENT OF THE REPUBLIC OF SEYCHELLES IN EXERCISE OF HIS POWERS UNDER THE COMMISSIONS OF INQUIRY ACT (CAP 39);

 

TO INQUIRE INTO THE CIRCUMSTANCES ASSOCIATED WITH THE DEATHS OF RODYANNE ELIZABETH-FRED AND THE TWINS SHE WAS CARRYING, AT THE VICTORIA HOSPITAL ON OR ABOUT THE 1ST OF JANUARY 2010.

 

 

COMMISSIONER: ANTHONY FRANCIS TISSA FERNANDO,

 JUSTICE OF THE COURT OF APPEAL OF THE SEYCHELLES

 

 

DATED THIS…………….DAY OF MARCH 2010.

CONTENTS

Page

Chapter 1

Appointment of the Commission of Inquiry                                                 6       

Chapter 2

Commissions of the Inquiry Act (Cap 39)                                                    8

Chapter 3

Conducting the Inquiry and Expenses of the Commission                          9

Chapter 4

Facts in Brief                                                                                               11     

Chapter 5

The Manner under which the Inquiry was held                                          14

Chapter 6

Opening Statement                                                                                     15

Chapter 7

Cause of Rodyanne’s Death and the Twins she was carrying                     18

Chapter 8

Rodyanne’s Pregnancy                                                                                26

Chapter 9

Was Rodyanne’s discharge on the morning of 31st of December 2009 correct?                        30

Chapter 10

Was the decision not to admit Rodyanne when she came to the Victoria hospital at 1.15 in the morning of the 1st of January 2010 correct?                                               32

Chapter 11

Did Rodyanne contribute to her condition by exposing herself at the prayer meeting at Grand Anse Mahe School premises in the early hours of the morning of the 1st of January 2010?                                                                                                              36

Chapter 12

The manner Rodyanne’s case was handled at Anse Boileau Clinic on the morning of the 1st of January 2010.                                                                                            37

 

Chapter 13

The manner Rodyanne’s case was handled at the Victoria hospital on the 1st of January 2010 after her admission at 9.50 in the morning up to the time of her admission to the ICU at 11.30 a.m.                                                                                                            38

Chapter 14

Was the decision to move Rodyanne to the ICU instead to the operating theatre to do a caesarian operation, the better option in the given circumstances?

                                                                                                                   42

Chapter 15

The Manner in which the Hospital Records are maintained and the reliance placed on them by doctors                                                                                                        46

Chapter 16

The state of equipment in the Maternity Ward at the Victoria hospital and Anse Boileau Clinic                                                                                                                   48

Chapter 17

The lack of Protocols or Guide lines to deal with Emergencies                    50

Chapter 18

Dissatisfaction among hospital staff in regard to terms and conditions of work

                                                                                                                   51

 

Chapter 19

The Rights of the Unborn vis-a-vis the Right to life enshrined and entrenched in article 15 of the Constitution of Seychelles                                        54

Chapter 20

Rights of Patients and Patient Autonomy                                                   67

 

Chapter 21

Summary of Conclusions and Recommendations                                       74

Chapter 22

Acknowledgements                                                                                     78

Chapter 23

List of Exhibits                                                                                            79

 

CHAPTER 1

APPOINTMENT OF THE COMMISSION OF INQUIRY:-

His Excellency James Alix Michel, President of the Republic of Seychelles in exercise of his powers under the Commissions of Inquiry Act (Cap 39) appointed me, Anthony Francis Tissa Fernando, as a one man Commission, under Gazette Notification No. 3 XXXV of Tuesday 12th January 2010 to inquire into the circumstances associated with the deaths of Rodyanne Elizabeth-Fred and the twins she was carrying, at the Victoria hospital on or about the 1st January 2010,and render a Report of my findings, the reasons for such findings and recommendations if any, not later than 5 months from the date of publication of the Gazette, namely before 12th of June 2010.  A copy of the said Gazette Notification is to be found at X1 in the List of Documents.

On the 14th of January 2010 as required by the Commissions of Inquiry Act I took the oath before President Michel before assuming my functions under the Commission. A copy of the oath is to be found at X2 of the List of Documents.

 The Inquiry was held in public since there was no direction by the President to the contrary in the gazette notification appointing the Commission. The inquiry was conducted at the Seychelles Court of Appeal building.

After the appointment of the Commission there was a Notice to the Public, published in the Seychelles Nation of 15th and 16th of January 2010 calling upon the public who have any knowledge pertaining to the matters which are the subject matter of the Inquiry to contact the Secretary to the Commission before the 31st of January 2010. A copy of this Notice is to be found at X3 in the List of Documents.  This Notice was on the 15th and 16th of January 2010 broadcast on SBC Television after the08.00 P.M. Creole news and also on SBC Radio on the 15th and 16thof January 2010 after the 06.00 P.M. news.

There was also a Notice to the Public, published in the Seychelles Nation of 13th and 15th of February 2010 informing the public that the Commission will commence and start hearing the testimony of witnesses in relation to the Inquiry during the 22nd to the 26th of February 2010 and that they were free to attend. A copy of this Notice is found at X4 in the List of Documents. This Notice was broadcast on the 15th and 16thof February 2010 on SBC Television after the 08.00 P.M. Creole news and also on SBC Radio on the 13th and 14th of February at lunch timeand on the 15th and 16th February 2010 after the 06.00 P.M. English news.

The Commission sat to hear the evidence of 34 witnesses summoned before it on the 22nd, 23rd, 24th and 26th of February 2010. The List of witnesses who testified before the Commission is to be found atX5 of the List of Documents. The rights, obligations and privileges of the witnesses were set out in detail in the summonses served on each of the witnesses. Copies of the two types of the Summonses issued are to be found at X6a and X6b of the List of Documents.  24 Exhibits were produced before the Commission. The List of exhibits is to be found atChapter 23.

 

CHAPTER 2

COMMISSIONS OF INQUIRY ACT (Cap 39):-

The President may, whenever he shall deem it advisable, issue a Commission appointing one or more Commissioners to inquire into-

(a)  The conduct of any officer in the public service; or

(b)  the conduct or management of any department of the public service, or of any public or local institution; or

(c)  any matter relating to the public service; or

(d)  any matter of public interest or concern; or

(e)  any matter in which an inquiry would be for the public welfare.

According to the Gazette notification this Inquiry came under the provisions of (a) to (e) above.

 

 

CHAPTER 3

CONDUCTING THE INQUIRY AND EXPENSES OF THE COMMISSION:-

Conducting an Inquiry of this nature is a difficult task especially because I have no legal personnel or even a personal secretary to assist me. I had to personally draft and prepare all the necessary documents, go through all the statements of the persons whose statements have been recorded, examine the medical records, research on various aspects of pathology, cardiology, obstetrics and anesthesiology, decide on the witnesses to be called, ensure the presence of the witnesses before the Commission, question all witnesses summoned and personally type out the Commission of Inquiry Report. The Chief Executive Officer of the Health Services Agency, appointed Dr. Jude Gedeon to act as the Focal point in the Ministry of Health to assist me in obtaining the information required to conduct this Inquiry. Dr. Gedeon assisted me in providing me with all medical records pertaining to Rodyanne Elizabeth-Fred maintained at the Victoria Hospital and clarifying certain notes made by doctors and mid-wives and explaining certain medical issues. The Commissioner of Police as directed by the President in the appointment of the Commission detailed Ex- Assistant Commissioner Mr. Andre Valmont, Assistant Superintendent Christel Marie, Inspector Hendrick Leon and Corporal Chantal Prea to assist the commission. They assisted me in recording the statements of some of the witnesses and having those statements translated into English. Corporal Chantal Prea in addition assisted the Commission in serving the summonses and performing duties as directed by the Commission. 

The expenses in relation to payments made to the Secretary to the Commission; 3 stenographers; the one who helped in the recording of the proceedings; media advertisements; stationery; meals, refreshments and taxi fares for the Secretary, stenographers, police officers on duty during the sittings of the Commission; were paid by State House and all financial matters were handled by the Secretary to the Commission Mrs. Vivienne Christine Vadivelo and the Chief Accountant of State House Mr. Bijoux. I have been informed by Mrs. Vadivelo that an amount of about SR 70,798.70 has been expended. The ‘Break Down of the Expenses of the Commission’ is annexed herewith as X7. Commissioners appointed under the Commissions of Inquiry Act shall not be entitled to any remuneration unless such remuneration shall be specially granted by the President and there was no request by me for remuneration or a direction by the President to this effect.

 

CHAPTER 4

FACTS IN BRIEF:-

21 year old, Rodyanne Elzabeth-Fred, wife of Ryan Dominic Fred was pregnant and was expecting twins. Her confinement according to her last menstrual period was to be in the second week of January 2010. On the night of the 20th of December 2009, Rodyanne who was nearing her 37th week of pregnancy was admitted to the Victoria Hospital with suspected labour pains. She had all symptoms, namely, cervix fully effaced soft and thin, dilated 3 c.m, cephalic at station 2 and had mild and regular uterine contractions on CTG examination, suggestive that she was in labour and indicative that her body was favourable as per ‘Bishop Score’ for a successful induction of labour. She was diagnosed as being in early labour. She was however discharged on 24th December 2009 as the doctors who examined felt that there was no necessity to induce labour. In the early hours of the morning of the 28th of December Rodyanne, who was nearing her 38th week, was readmitted to the hospital with complaints of dizziness, palpitation, abdominal pain, backache and diarrhea. Again she had all symptoms indicative that her body was favourable as per ‘Bishop Score’ for a successful labour induction. But after two days under observation Rodyanne was again discharged on the morning of the 30th of December as the doctors who examined her were of the view that there was no necessity to induce labour. That same evening she was re-admitted to the hospital with complaints of chest pain, dyspnea (shortness of breath) and tachycardia (fast heart beat). Again she had all symptoms indicative that her body was favourable as per ‘Bishop Score’ for a successful labour induction. In addition her cervix had from posterior gone to anterior, a position that is most favourable for delivery. In the early hours of the morning of the 31st of December around 04.20 a.m. Rodyanne had complained of chest pain and inability to breathe and was put on an oxygen face mask. At 09.20 a.m. that morning she was discharged from hospital. At 01.15 in the morning of the 1st of January 2010 Rodyanne came back to the hospital from Anse Boileau, complaining of chest pain and discomfort. She was not admitted on this occasion but sent back home with cimetidine and maxalon tablets, despite her insistence that a caesarian be done on her to deliver her babies, and she been in her 38th week. The CTG done at this time revealed that both babies were alive. By 07.00 hrs in the morning her condition had worsened and she was rushed to Anse Boileau Clinic from where she was transferred to the Victoria Hospital by ambulance with a tachycardia almost reaching up to 200 beats per minute and nasal flaring. She was being given oxygen throughout her journey as she was finding it difficult to breathe. She was admitted at the Victoria Hospital at 09.55 a.m. and placed in Bay 5. The On-Call Obstetrician in the hospital had seen her only at 10.35 a.m. By this time she was with severe dyspnea, with a tachycardia of 160 beats, subcrepitant rales in both lungs, and feet cyanosed. An E.C.G. taken for the first time on Rodyanne since her pregnancy indicated an abnormality in the functioning of the heart. The Obstetrician after consulting with the physician on duty called the Anesthetist to prepare for ventilator support in the operating theatre as it was decided to do a caesarian operation to deliver the babies. The Anesthetist rushed to the operating theatre to do the needful. But that decision was changed and a decision was taken to move Rodyanne to the Intensive Care Unit with a view to stabilizing her condition. At 11.30 a.m. she was admitted at the ICU. Rodyanne’s condition deteriorated rapidly on admission to ICU and she went into cardiac failure and Cardiac Pulmonary Resuscitation was started. CPR failed and Rodyanne and her twins were pronounced dead at 12.16 p.m.         

 

CHAPTER 5

THE MANNER IN WHICH THE INQUIRY WAS HELD:-

I decided to deal with this Inquiry, under several modules. In dealing with the several issues  arising in this case I do not intend in this Report to set out in detail the evidence of the witnesses but simply to make reference to the salient features of their evidence. I have also decided not to make reference by name to the medical personnel who attended on Rodyanne Elizabeth-Fred in view of the possible repercussions this may have on the health services provided by the Government. The entire testimony of all the witnesses who testified before the Commission has been compiled in the Record of Proceedings consisting of 467 typed A4 papers and is available for inspection with the Secretary to the Commission for anyone interested in further details. A copy of The Record of Proceedings will be kept with the Secretary to the Commission and it is marked as X9. I have also incorporated in this Report, by way of quotations, some of the views expressed by the Panel of Inquiry appointed by the Ministry of Health consisting of Dr. Rubell Brewer(retired Commissioner of Health & Senior Pathologist, and ex-WHO Liason Officer for Seychelles), Dr. Mickey Noel (Consultant in Charge – Anesthesia), Dr. Erna Athanasius (Consultant Paediatrician – Early Childhood Intervention Centre), Ms. Bernadettte Rose (Senior Staff Nurse & Midwife, Anse Royale), Mr. Prosper Kinabo (Director Clinical Laboratory) and Mrs Marie-Josee Bonne, Special Adviser Social Development (lay person & Rapporteur).

 

CHAPTER 6

Opening Statement

At the very outset I wish to place on record that this is a Commission of Inquiry appointed by H.E James Alix Michel, the President of the Republic of Seychelles, under the Commissions of Inquiry Act (Cap 39), to inquire into the circumstances associated with the deaths of Ms. Rodyanne Elizabeth-Fred and the twins she was carrying, at the Victoria Hospital on or about the 1st of January 2010. The Commission appointing me as the Sole Commissioner was published in the Extraordinary Gazette No.3 of the 12th of January 2010 under Notice No. 30 of 2010. I took the oath as required under the Commissions of Inquiry Act, before H.E President Michel, on the 14th of January 2010. I am required to, under the Commissions of Inquiry Act and the directions of the President, to make a FULL, FAITHFUL AND IMPARTIAL INQUIRY into the matters specified in the Commission and report to the President in writing the result of my inquiry with my findings, the reasons for such findings and recommendations if any before the 12th of June 2010. This as you know is an inquiry held in public and any person interested in the proceedings of this Inquiry may attend and follow the proceedings without willfully and improperly interrupting the proceedings of the Commission. Witnesses summoned by the Commission are obliged by law to attend, to be sworn or affirmed, to answer fully and satisfactorily to the best of their knowledge and belief all questions put to them by the Commissioner, to produce all documents referred to in the Summons and not to willfully insult the Commissioner or the Secretary or willfully and improperly interrupt the proceedings of the Commission. Failure to comply with any of these requirements is an offence punishable with imprisonment not exceeding 1 yr or a fine not exceeding RS 2000 or to both such imprisonment and fine.  The rights and privileges of the witnesses have been set out in detail, in the Summons served on each of the witnesses and more fully in sections 14, 15, 16 and 18 of the Commissions of Inquiry Act (Cap 39). I would wish to emphasize therefore that all witnesses summoned before the Commission are under a legal obligation to answer fully and satisfactorily to the best of their knowledge and belief all questions put to them by me. Therefore you don’t have to be frightened of anyone, cover up for any fault, negligence or mistake of anyone, for it is the law which requires you to be truthful. An understanding of this concept is absolutely necessary for the work of this Commission of Inquiry.

I wish to state to the doctors who have been called to give evidence before the Commission that the Commission expects from you, as professionals, a full and frank disclosure of what you did when attending on Rodyanne Elizabeth Fred and what you now believe should have been done by you or others who attended on Rodyanne, according to accepted medical practice. You must remember that your entire testimony will be recorded and if need be, placed and tested before Specialists from abroad, who are Experts in the respective fields, who will be called to testify before the Commission. If such a situation were to arise you will be given an opportunity to make your comments on their evidence.     

I am also obliged by law to make a full, faithful and Impartial Inquiry and whatever questions I may pose to the witnesses and whatever findings I make at the end of this Commission of Inquiry, in addition to my moral, social and judicial obligations arises from a legal obligation placed on me by the Commissions of Inquiry Act.

 

CHAPTER 7

Cause of Rodyanne’s Death and the Twins she was carrying:-

According to the Post Mortem Examination Report of the Consultant Pathologist the condition directly leading to the death of Rodyanne was congestive cardiac failure and bilateral pulmonary edema and the underlying condition which brought about this condition was Peripartum Cardiomyopathy (PPCM). PPCM is a disorder which may develop between the last months of pregnancy or within 5 months after delivery. According to the Pathologist, the underlying predisposing factors for developing PPCM in this case included multifetal pregnancy, black race, extreme young age (21 years) and anemia. Both the Consultant Physcian and the Consultant Pathologist agreed with the Commissioner that according to medical research 1/4th to 1/3rd of PPCM patients are young women who have given birth for the first time. PPCM may involve systolic dysfunction of the heart with a decrease of the left ventricular ejection fraction (EF) with associated congestive cardiac failure. When there is congestive cardiac failure the heart looses its ability to pump blood efficiently resulting in the body not getting the oxygen and nutrients it needs. Decreased heart function had affected the heart, lungs, liver and the kidneys of Rodyanne as was found at the post mortem examination. Histology findings of the heart showed variable hypertrophy (large myocyte cell and small myocyte cells), with some bizarre nuclei that are pleomorphic and degenerated myocytes. Focal fibrosis was also seen. The Consultant Pathologist stated that Rodyanne had a dilated cardiomyopathy which can develop slowly or abruptly. She said that the left ventricle had dilated 2.8 c.m. Both the Pathologist and the Consultant Physician agreed that the hypertrophy and focal fibrosis of the heart found in the post mortem examination could certainly not have occurred within 11 hours and would have taken days or weeks to develop. This question was asked by the Commissioner to ascertain whether the pathological condition of the heart could have developed after Rodyanne left the hospital at about 02.00 a.m. in the morning on the 1st of January 2010. The Pathologist agreed with the Commissioner that the common symptoms of dilated cardiomyopathy are shortness of breath, fatigue or weakness irregular or rapid pulse, cough, palpitations and nocturnia (need to urinate at night). When questioned by the Commissioner as to whether it was because of this that she had questioned Rodyanne’s relatives after the post mortem examination whether Rodyanne had a cough, her answer was in the negative. She said the reason for that question was to exclude any infection like H1N1.   

  Both the Pathologist and Consultant Physician agreed with the Commissioner that if an echocardiogram had been done any time during the period 21st December 2009 to 1st January 2010 it was likely that cardiomyopathy may have been detected. The Consultant-Obstetrician agreed before the Commission that doing an echocardiogram was the “ideal thing to do”.  The Pathologist stated that since an echocardiogram was not done prior to the 1st of January 2010 she cannot say with certainty as to when the heart became hypertrophic or the left ventricle got dilated, namely within the previous month or before that. The tubular necrosis found in the kidneys could be attributed to the ischemia and would have taken 24-36 hours to set in.  The Pathologist agreed with the Commissioner that cardiac failure is often a condition that can be managed with medications and life style changes. She agreed with the Commissioner that PPCM is related to myocarditis and when diagnosed the patient needs hospitalization. The bilateral pulmonary edema referred to in the post mortem examination report is the most severe manifestation of congestive cardiac failure. Pulmonary edema develops when the imbalance in pump function (in which the heart fails to maintain the circulation of blood adequately) causes an increase in lung fluid secondary to leakage from pulmonary capillaries into the interstitium and alveoli of the lung. The Pathologist had ruled out amniotic fluid embolism as having caused the death. When questioned by the Commissioner whether the findings of Peripartum Cardiomyopathy and congestive cardiac failure correlate with the findings mentioned in Rodyanne’s Antenatal Record which indicates that Rodyanne was clinically stable to be sent back home without admission at 01.50 a.m. on the 1st of January 2010 the Pathologist showed a reluctanceto comment, which the Commission finds regrettable.

The Pathologist and the Consultant Physician stated that PPCM is a very rare condition that affects 1in between 1500 - 4000 pregnant women. The Pathologist however stated that there exists a Chart for focused medical history for PPCM screening, to look for symptoms of heart failure, during the last month of pregnancy. The Commissioner at this stage produced the Chart to which she agreed. It was produced as Exhibit 17a.  According to this Chart the following points are given.

1. Orthopnea (difficulty in breathing while lying flat):

(a)  None = 0 points; (b) Need to elevate head = 1 point; (c) Need to elevate upper body 45° or more = 2 points

1. Dyspnea (shortness of breath on exertion):

 (a) None = 0 points; (b) Climbing 8 or more steps = 1 point; (c) Walking on level = 2 points

3. Unexplained cough:

  (a) None = 0 points; (b) Night time = 1 point; (c) Day and night = 2 points

      4. Swelling (pitting edema) lower extremities:

         (a) None = 0 points; (b) below knee = 1 point; (c) above and below knee and/or hands/face = 2 points

    5. Excessive weight gain during last month of pregnancy:

         (a) Under 2 pounds per week = 0 points; (b) 2 to 4 pounds per week = 1 point; (c) over 4 pounds per week = 2 points

    6.  Palpitations (sensation of irregular heart beats):

          (a) None = 0 points; (b) When lying down at night = 1 point; (c) Day and night, any position = 2 points

Scoring and Action:

0 -2 = low risk – continue observation

3 -4 = mild risk – consider doing blood BNP and CRP; echocardiogram if BNP and CRP are elevated

5 or more = high risk – do blood BNP, CRP and echocardiogram

It is clear that the symptoms displayed by Rodyanne as recorded in her Ante-Natal Record gave her a score that puts her well over the high risk level and all that was needed was an echocardiogram to detect her condition of PPCM and exclude the possibility that the symptoms were not necessarily confined to her twin pregnancy. On the 28th of December 2009 on her re-admission to the Victoria hospital at 12.30 a.m. she had palpitation; On the 30th of December on her second re-admission at 8.00 p.m. she had slight tachycardia and had complained of dyspnea and chest pain on breathing; at 8.55 p.m. she had tachycardia and chest pain and on the 31st of December at 4.20 a.m. she had chest pain, was unable to breathe and was put on an oxygen face mask. According to the physician who examined Rodyanne after her admission to the Victoria hospital at 9.50 a.m. on the 1st of January Rodyanne had complained of palpitations for two days. According to the weight chart maintained in the Ante-natal Record, Rodyanne had gained 6.4 pounds from the 25th of November to the 9th of December, 4.4 pounds from the 9th of December to the 16th of December and 3 pounds from the 16th of December to the 30th of December, bearing in mind however that she was having a twin pregnancy. The Pathologist agreed that Rodyanne was a high risk patient according to the Chart.

According to her relatives Rodyanne had a constant cough during this period, had to sit up to breathe, was always complaining of shortness of breath and urinated at night frequently.    

The Commission agrees that PPCM is undoubtedly a rare condition but not one that has come to the knowledge of medical science only a few years back. It has been there for several decades and very much referred to in medical text books. Therefore it is not possible for an entire team of doctors in the Maternity Ward who had seen and attended on Rodyanne after the 28th of December 2009 up to the morning of the 1stof January 2010 to plead ignorance of the possible existence of this pathological condition. What is unpardonable is that no attempt has been made by any of the obstetricians to refer Rodyanne to a physician for examination for exclusion of any other pathological condition that could be attributable to the symptoms she was displaying, until the 1st of January 2010. It is a known factor that in medical science diagnosis is mainly based on exclusion of other pathological conditions by recourse to various tests, as the same symptoms are often displayed in many pathological conditions. The anesthetist in her notes made on the 1st of January 2010 had stated: “but no investigation had been done further to rule out reason”.    This attitude of the doctors goes against the modern version of the Hippocratic Oath which states: “I will seek the counsel of particularly skilled physicians where indicated for the benefit of my patient”. When the Commissioner questioned the Consultant-Obstetrician to the effect that the condition of PPCM should have been at the back of his mind his answer was “I would think of it for the next one year probably. It is not going to be at my forefront.” When informed by the Commissioner that PPCM is a condition that is very much referred in the text books his answer was “Text books are text books, the job is to record every possible symptoms or finding or whatever but technical practice is totally different”. The Commission is unable to understand whether it is a question of arrogance or a total failure to read through the earlier notes maintained in the Ante-natal Record when examining Rodyanne which amounts to professional negligence, which could be attributed to this case.

According to the Report of the Panel of Inquiry which inquired into this case: “There is no evidence that the diagnosis of PPCM was ever entertained in this case………PPCM is a rare entity in some countries[ours included]but keeping the diagnosis as a differential, could have led to the necessary heart examinations, if only to rule it out” and “ a high index of suspicion is required to diagnose this and echocardiography be used as a tool to look for early symptoms of heart failure in the last month of pregnancy(+36 weeks onwards)”. They had gone on to state: “The panel affirms that a high index of suspicion is required to diagnose such cases as PPCM. However, the frequency in which this patient presented herself to health facilities, 10 days from 21st to 31st December, could have been a red flag and alerted health personnel to consider this as a possible diagnosis”.

The meconium, the Pathologist found in the amniotic fluid indicated that there could have been fetal distress prior to the death of Rodyanne. This was because the babies had passed stools while in the mother’s womb. If a baby were to breathe this fluid into the lungs it may lead to Meconium Aspiration Syndrome which results in serious breathing problems for the babies and possible death as it occurred in this case. The Pathologist described the weight of the two fetuses as 2600 grams and 2700 grams and agreed with the Commissioner that both were of normal weight and were ready to be born. The lack of any signs of maceration indicated that the fetuses had died shortly before the mother’s death. When questioned by the Commissioner as to why post mortem examinations on the two fetuses were not done the Pathologist replied that the husband of Rodyanne had refused.

 

CHAPTER 8

Rodyanne’s Pregnancy:-

   In the Ante-Natal Record maintained at the Victoria Hospital in relation to Rodyanne Elizabeth-Fred “Twins: diamniotic/monochorionic” is recorded as a Risk Factor of her pregnancy. Doctors agreed that twins in general are at increased risk for certain complications like premature birth, death and other anomalies. Since monochorionic twins often share the placenta and have one chorion (outer membrane) as compared with dichorionic twins who have a separate chorion; monochorionic twins have a significantly higher risk of complications like Twin-to-Twin transfusion Syndrome( 15% have a risk of developing this) and Twin reversed arterial perfusion sequence. Doctors agreed that at the gestational age of 32 weeks many of the risks associated with prematurity, intraventricular hemorrhage, necrotizing entercolitis and respiratory distress syndrome have abated. They did agree that many doctors deliver monochorrionic twins any time after 36 weeks but  went on to comment that since Seychelles does not have well equipped neo-natal facilities the tendency here is to wait for the full term of 40-41 weeks.

Doctors did agree with the Commissioner that by the 21st of December 2009 that Rodyanne had a Bisop Score favourable for successful labour induction but stated that this alone is not the determining factor to induce labour.

Doctors agreed with the determination of the Bishop Score as presented to them by the Commissioner, namely:

(1)  Position of Cervix – (a) Posterior = 0 points; Intermediate = 1 point; Anterior = 2 points

(2)  Consistency of Cervix – (a) Firm = 0 points; Intermediate = 1 point, Soft = 2 points

(3)  Effacement (Thinning of cervix) – 0 – 30% = 0 points; 40%-50% = 1 point; 60 – 70% = 2 points

(4)  Dilatation of cervix – Closed – 0 points; 1 -2 cm = 1 point; 3-4 cm = 2 points and 5cm or more (Labour induction is not necessary)

(5)  Station of the Baby – measured by the top of the baby’s presenting part in relation to the ischial spines on the mother’s pelvis. If the head is above the ischial spines, it is ranked in the negative numbers. If the head is even with spines it is considered as 0 station. If the head is past the ischial spines and into the birth canal, it is ranked in positive numbers. The lower the head is, indicated by positive numbers, the more favourable for induction.

- 3 = 0 points; -2 = 1 point; -1 to 0 = 2 points; +1 to + 2 = 3 points

One point has to be sub-tracted in the case of a first pregnancy. Over 8 points mean that the body is more than favourable for an induction. If it is lower than 8 the risks and benefits of an induction has to be considered and if the score is under 3 induction should not be proceeded with.” Doctors agreed that once the cervix has reached a particular status it does not normally change and only differences one may notice in the Ante-natal Record of a patient as regards the status of the cervix could be attributable to the differences in observation amongst doctors or midwives when doing a vaginal examination.

 According to the doctors another factor that is taken into consideration is whether there are uterine contractions. When questioned by the Commissioner the doctors stated that for a determination that a person is in active labour they expected to see 3 contractions every 10 minutes. Further they stated that it is only if there are any complications in the mother’s condition or that of the fetus that a decision is made for labour induction or to do a caesarian section. This according to the Commission contradicts the evidence of most of the doctors, as Rodyanne certainly had complications from the 28th of December onwards. They also failed to mention another valid reason for delivery by caesarian, namely the request from Rodyanne for caesarian delivery, and also because she was at a gestational age for the baby to survive on its own. According to the Antenatal Records of Rodyanne as far back as 21st December 2009 it is recorded “, cephalic engaged(1st twin at station 2), fully effaced -  80%, 3 cm dilated, consistency of cervix soft and thin, cervix at posterior position, moderate uterine contractions (1 in 5 minute) and diagnosed as in early labour” . This position continued up to the date of her discharge from the Victoria hospital on the 24th of December. On her re-admission to the Victoria hospital on the 28th of December she had 3 contractions every 10 minutes. On her second re-admission to the Victoria hospital at 8.00 p.m. on the 30th of December after having being discharged that morning  she has had contractions and the position of the cervix is recorded as anterior, a position most favourable for delivery.

Thus the Commission concludes that taking into consideration the Bishop Score, the uterine contractions she had been having, the complications Rodyanne started to display after the 28th of December, the fact that she was having a twin pregnancy and the fact that Rodyanne according to her relatives had wanted a caesarian to be performed on her (bearing in mind that this evidence may not satisfy the elements of admissibility as a  dying declaration under the normal rules of evidence as the utterances were not made under expectation of death or on the basis of something recorded in the ordinary course of business, as it had not been recorded in the hospital records) doctors should have taken steps to induce labour or perform a cesarian operation. What is regrettable is that there is no record of the doctors having even considered any of these options but simply decided to wait till the 13th of January 2010 for a normal delivery. One of the senior Obstetrician’s called before the Commission to express an opinion stated that if patient was a primigravida, of young age, with a multifetal pregnancy at the gestational age of 38 weeks, with cervix 90% effaced, 3 c.m. dilated, consistency of the cervix was soft, in anterior position, cephalic at cervical station 2 and patient was having 3 uterine contractions within 10 minutes; he would have done an artificial rupture of the membrane and delivered the baby.

 

CHAPTER 9

Was Rodyanne’s discharge on the morning of 31st of December 2009 correct?

Rodyanne was re-admitted to the hospital for a second time on the 30th of December at 8.00 p.m. with complaint of dyspnea and chest pain on breathing. She had slight tachycardia on admission as recorded by the midwife. She was brought in a wheel chair by a porter to the Maternity Ward and transferred from Anse Royale hospital in an ambulance. At 8.55 p.m. she had again complained of chest pain and had tachycardia. The C.T.G. taken at this time had shown uterine contractions. At 4.20 a.m. in the early hours of the morning of the 31st of January 2009 she had chest pain, was unable to breathe and had to be placed on an oxygen mask by the midwife on the On-Call Obstetrician’s advice. The doctor questioned by the Commission as to the appropriateness of the discharge said that it was because she did not display any symptoms on examination and since her condition was only episodic. This is an answer which befuddles reason as there are several conditions which are episodic. If doctors start to treat patients on the basis of what they observe at the time they do their rounds without turning back the pages of the Ante-natal Record to check the notes made by other doctors and midwives, the purpose of maintaining notes are lost and it may lead to many a incidents as that of Rodyanne Elizabeth-Fred.

It is recorded by the doctor who discharged Rodyanne on the 31st morning “wants to go home – discharged”. There is nothing to indicate that the doctor had warned her against the risks of going home and the doctor did not claim that she went against his advice. In the future it is recommended that a doctor should not only warn the patient against the risks involved but should necessarily get the patient to sign a document stating that she is going against medical advice.         

The Commission concludes that taking into consideration that Rodyanne was a primagravida; of young age; was having monochorionic diaminiotic twins with the normally associated complications and risks of such pregnancies; had a history of palpitations, tachycardia, dyspnea, chest pain and difficulty in breathing, symptoms also associated with cardiomyopathy from the 28th of December 2009 onwards; that on the 30th of December night she had been admitted with chest pain and tachycardia; that 5 hours before Rodyanne was discharged i.e. at 4.20 a.m. in the morning of the 31st of December it had been recorded in the Ante-natal Record that she had chest pain, difficulty in breathing and had been placed on an oxygen face mark by the midwife on the On-Call Obstetrician’s advice and that according to the Bishop Score her body was in a position favourable for induction of labour; the decision to discharge was incorrect and amounts to professional negligence. One of the Senior Obstetrician’s called to testify before the Commission on being given the above facts and called upon to answer on a hypothetical basis stated that he would not have discharged a patient in the given circumstances.

CHAPTER 10

Was the decision not to admit Rodyanne when she came to the Victoria hospital at 1.15 in the morning of the 1st of January 2010 correct?

Rodyanne came back at 1.15 a.m. on the 1st of January 2010 to the hospital with her mother and two relatives, seeking treatment and was turned away. According to the Ante-natal records the midwife had recorded: “Client reported with burning epigastric pain…………..CTG done”. The On-Call Obstetrician had recorded: “Again complaining of retrosternal pain/burning. On examination not in distress/resp.n (repiratory system normal), Chest clear. Looks comfortable RX – cimetidine & maxalon tab. Reviw PRN”(underlining is mine). The situation of the Maternity Ward and the circumstances prevailing at the time Rodyanne came into the Victoria hospital may be of relevance. The new year had just dawned and the 2 mid wives, the nursing assistant and the On-Call Obstetrician had at the dawn of the new year partaken of a meal, shouted out in exuberance and had opened a bottle of wine (which was described by one of the mid wives as non-alcoholic) the pop of which and the screams of exuberance, had been heard by one of the patient’s who were in the ward at that time. The next morning she had been told by a nurse that it was the doctor who had opened the bottle and the doctor confirmed this when he testified before the Commission. It transpired that one of the mid wives who attended on another patient, who came into the hospital on or about the time that Rodyanne came in, had complained that she has just finished duty and was tired. There was evidence before the Commission although in hearsay form that on two earlier occasions when the District Clinic to which Rodyanne had reported had called the Victoria hospital about the transfer of Rodyanne, some one from the Maternity Ward had complained: “Rodyanne, Rodyanne, again. Hmmm” as if being tired of her coming in and going out of the hospital. When the Commissioner questioned the On-Call Obstetrician as to what terminology he would normally use when he sees a recurrent condition in a patient he said he would use the word “recurrent”. But when challenged as to why he had used he word “Again” instead of “recurrent’’  in his notes he said that they amount to the same thing. It is also to be noted that Rodyanne had not complained of retrosternal pain/burning on any of the previous occasions. The other patient referred to earlier and who had her confinement that morning also told the Commission that when she came in, one of the midwives had asked her whether she had come to listen to her baby’s heart beat. The Commission forms the impression that Rodyanne had come in at a most unwelcome time, although no such times should be there in hospitals. When the Consultant-in-Charge of the Obstetrics and Gynecology Unit was questioned as to what he would have done if Rodyanne had come back to the hospital some hours after he had discharged her at 9.20 in the morning of the 31st of December 2009, complaining of chest pain and breathlessness his answer was that he would have admitted her. It does not need a doctor to state that Rodyanne should have been admitted to the hospital at 1.15 a.m. on the 1st of January 2010 at least for the purposes of further observation. If only the On-Call Obstetrician on duty at 1.15 in the morning, had perused the previous notes in the Ante-natal Record and used a common sense approach that no person in her proper sense of mind would come to the Victoria hospital looking for treatment at 1.15 in the morning all the way from Anse Boileau unless she was really unwell, he would necessarily have admitted her. According to those who accompanied Rodyanne to the hospital at 1.15 a.m. in the morning of the 1st of January 2010 they had to use a wheel chair to take her to the Maternity Ward as she was finding it difficult to walk because of difficulty in breathing. When she came back after seeing the doctor she had been in a wheel chair. The On-call Obstetrician tried to make out that she had preferred to go home. This is not recorded anywhere. Even if that had been the case, here was clear a case that the doctor should have strictly warned her against going back home and recorded in the notes that she had left against medical advice. The position taken up by the doctor is totally contrary to what those who accompanied had stated. According to them Rodyanne had cried when she was not admitted and had informed her mother that she had told the doctor to cut her and do a caesarian as she was tired. The On-call doctor agreed with the Commissioner that he would have not done anything wrong in having admitted her. The Consultant- Obstetrician said: “If I was in that place I would have kept her” when questioned about Rodyanne not being admitted to the hospital at 1.15 a.m. on the 1st of January 2010. One of the Senior Obstetrician’s called to testify before the Commission on being given the above facts and called upon to answer on a hypothetical basis stated that he certainly would have admitted a patient in the given circumstances. According to the relatives of Rodyanne the On-Call Obstetrician on duty at 1.15 in the morning, had made an unequivocal admission of guilt and failure of  his responsibilities, after the death of Rodyanne, the details of which I do not intend to set out in this Report. According to the On-call doctor this was a misinterpretation of what he had told the relatives. All that he had told them is that he feels bad that they had lost a patient. He had told them that they get paid to save patients but in this case they could not. The doctor also admitted that it was the first time he had come across a case of PPCM, although there was much literature regarding PPCM in the books, which he made out was not available in the hospital. He further said that he did what he thought was correct at that time, although it is clear to the Commission that his knowledge of PPCM was very limited at that time.

 

CHAPTER 11

Did Rodyanne contribute to her condition by exposing herself at the prayer meeting at Grand Anse Mahe School premises in the early hours of the morning of the 1st of January 2010?

Rodyanne’s condition deteriorated further after returning from the Victoria hospital at around 2.00a.m. in the morning of the 1st of January 2010. A question may be asked whether Rodyanne contributed to her condition? What could Rodyanne have done? She had been refused admission by the hospital authorities. She had not been told by any one that she was suffering from a serious cardiac condition and to be careful. All assurances from the hospital authorities were always to the effect that her condition was due to her advanced pregnancy. She could not be expected to have known about Peri Partum Cardiomyopathy, which even the doctors in the hospital appeared to be ignorant of. She had not been told by the On-Call Obstetrician on duty at 1.15 or any midwife not to expose herself and to go home and rest. She had every reason to be at the prayer meeting, to pray to God with the dawn of the New Year, to see her younger sister’s performance, to be with the rest of the family rather than stay at home and in view of the repeated assurances from the hospital authorities that her condition is due to her advanced pregnancy. She could not have known that “a variety of events or emotions as well as alimentation could precipitate and aggravate the symptoms of PPCM” as reported by the Panel of Inquiry.  

 

CHAPTER 12

The manner Rodyanne’s case was handled at Anse Boileau Clinic on the morning of the 1st of January 2010

Rodyanne was taken to the Anse Boileau Clinic around 9.00a.m. in the morning. She was now in her 38th week of gestation. She had a pulse of 161 beats per minute, was finding it difficult to breathe, coughing constantly, complaining of palpitation and was restless. She was given oxygen by face mask and had to be nursed in an upright position. Victoria hospital was contacted and was informed that Rodyanne was been transferred to the Victoria hospital by ambulance. While being transferred by ambulance Rodyanne had nasal flaring and her pulse rate rose from 161 to 200 beat per minute. It is unimaginable that neither the doctor nor the midwife at the Anse Boileau had informed any authorities at the Victoria hospital of the critical condition of Rodyanne. Thus on arrival at the Victoria hospital at 9.50 a.m. there were no arrangements made to receive Rodyanne. It also transpired that there was no portable oxygen mask at the Casualty of the Victoria hospital and the porter from the ambulance in which Rodyanne was brought used the one in the ambulance up to the time she was taken to the Maternity Ward and placed in Bay 5. The Commission concludes that there seems to be no protocol in place to deal with emergencies or they are not been followed.

 

CHAPTER 13

The manner Rodyanne’s case was handled at the Victoria hospital on the 1st of January 2010 after her admission at 9.50 in the morning up to the time of her admission to the ICU at 11.30 a.m.:

According to the midwife at Anse Boilleau, Rodyanne was handed over to the midwife at the Maternity Ward of the Victoria hospital at 9.50 in the morning of the 1st of January 2010. She gave the time as 9.50 under oath before the Commission, in a report dated 6th January 2010 she made to the Ministry of Health and in her police statement. The vehicle log card maintained by the driver of the ambulance that brought Rodyanne to the hospital gives the time of arrival at the Victoria hospital at 9.45 a.m.  The midwife at the Victoria hospital however states that she received Rodyanne at 10.30 a.m. I find it difficult to believe her version. Rodyanne on arrival at the Maternity Ward had been placed in Bay 5. According to the Report of the Panel of Inquiry appointed by the Ministry of health “Knowing the layout of the ante-natal ward, Bay 5 was not the most appropriate room to nurse a patient in severe distress and poor oxygenation.”According to the midwife at the Victoria hospital on examination of Rodyanne she was having difficulty in breathing and having nasal flaring. Her pulse rate was 175 bpm. She was therefore attached to a cardiac monitor and received oxygen continuously via face mask. It is unimaginable that the midwife who received Rodyanne on her admission to the Victoria hospital took 40 minutes to alert a doctor as to Rodyanne’s condition. She had not even discussed the case of Rodyanne with the more senior midwife on duty at that time. Thus the On-Call Obstetrician on duty had come to examine the patient only around 10.35 a.m. The Consultant-Obstetrician agreed that Rodyanne should have been seen by the On-Call obstetrician immediately. The Obstetrician had then called in the physician from the Medical Ward who ordered an ECG and some blood tests to be taken. In the meantime the Obstetrician had informed the On-Call Anesthetist to go to the Operating Theatre and prepare herself to give ventilator support after the caesarian operation that they , namely the Obstetrician, Physcian and Anesthetist, had amongst themselves had decided to perform on Rodyanne. At this stage the Nurse Manager had come in and insisted that that Rodyanne should not be moved from the Maternity Ward until the Anesthetist had personally come and assessed her condition. According to the report dated 8th January 2010 of the Nurse Manager when she came the physician and the Obstetrician were discussing the case of Rodyanne. According to her Report: “At that time I questioned the physician and asked her about her plan for this patient. She said that the patient is going for emergency caesarian, and she will be assessed by the anesthetist in the operating theatre. I told her that this patient is a typical picture of a pulmonary embolism and hence she needs to get the anesthetist to come on the ward to assess the patient as this patient cannot be shifted to the theatre in this condition. I made it clear to the physician that I will not take the responsibility of shifting the patient from the unit without the presence of the anesthetist”. According to her report and that of the midwife who received Rodyanne in the Maternity Ward, the anesthetist had come in at 11.20 a.m. and a decision was taken to shift the patient directly to the ICU. The decision according to the Anesthetist was taken by her. The anesthetist however gives her time of arrival as between 11.10 – 11.15. At 11.30 a.m. i.e. 1 hour and 40 minutes after Rodyanne’a admission at the Victoria hospital, Rodyanne had been shifted to the ICU. It is clear from this that much time had been wasted in arriving at a decision as regards how to deal with the case of Rodyanne, who at that time was in a critical condition. The impression that the Commission will have to necessarily form is that none of the doctors were prepared to take a firm decision and were vacillating while Rodyanne’s life was slowly slipping away. No doubt this was a catch 22 situation as one of the doctors sought to describe, but this is not something that can be reasonably expected from a hospital. There should be leadership in situations of this nature and one of the more senior and experienced doctors should take control and call a Code 9. What is most surprising is from 9.50 a.m. to 11.30 a.m. no attempt was made to check the fetal heart beat of the babies either by CTG or ultra sound. This is after the midwife from Anse Boileau who brought in Rodyanne had informed the Midwife at the Victoria hospital that the fetal heart beat had not been checked, while at the Anse Boileau clinic. A patient from the Maternity Ward who saw Rodyanne soon after her admission recalls seeing movements in Rodyanne’s abdomen. When a relative of Rodyanne had inquired about Rodyann’es condition from the anesthetist she is alleged to have said; “we are trying to save the mother, but I don’t care about the babies.”. When this was put to the anesthetist she denied having used the words “I don’t care about the babies”. The anesthetist however in her notes had stated “Priority is mother’s life”. The anesthetist stated that there was a likelihood of both Rodyanne and the twins being saved if Rodyanne was taken to the operating theatre soon after her arrival at the hospital at 9.50 in the morning.

 

CHAPTER 14

Was the decision to move Rodyanne to the ICU instead to the operating theatre to do a caesarian operation, the better option in the given circumstances?

It is clear from what has been said in the earlier chapter that there were two options available. The question that arises for determination is, which was the better one. Rodyanne was on the 1st of January 2010 in her 38th week of pregnancy. Her babies weighed 2600 grams and 2700 grams and according to anyone’s knowledge could be delivered and survive on their own. The babies were found alive on CTG at 1.15 a.m. in the morning. The Commissioner placed before the obstetrician, the On-call anesthetist and the Consultant anesthetist the practices as published in Advanced Life Support by the Resuscitation Council of UK 2008, under the heading ‘Emergency Caesarean section’ to which they agreed. According to this:

“When initial resuscitation attempts fail, delivery of the fetus may improve the chances of successful resuscitation of the mother and fetus. The best survival rate for infants over 24-25 weeks gestation occurs when delivery of the infant is achieved within 5 minutes after the mother’s cardiac arrest. Delivery relieves caval compression and may improve the likelihood of resuscitating the mother. Delivery also enables access to the infant so that resuscitation of the newborn child can begin”. The article goes on to state:

“Gestational age < 20 weeks - Urgent Caesarean delivery need not be considered, because a gravid uterus of this size is unlikely to compromise maternal cardiac output.

Gestational age approximately 20-23 weeks - initiate emergency delivery to enable successful resuscitation of the mother, not survival of the delivered infant, which is unlikely at this gestational age.

Gestational age approximately > 23 weeks - initiate emergency delivery to help save the life of both the mother and the infant”.

Doctors also agreed to what the Commissioner said: “that the process of Cardio Pulmanary Resuscitation (CPR) is much more difficult to perform and less effective in the pregnant than in the non-pregnant. That is because the presence of increasing mass in the abdomen compromises resuscitative efforts, in this case twins weighing 5.3 kgs (2.6 and 2.7 kgs). CPR is more effective after delivery of twins, alive or dead, for this would reduce the oxygen demands on the mother and also increase the venous return to the heart making it more possible that CPR will be successful.”

The obstetrician or the anesthetist did not state clearly why the decision to do a caesarian delivery was changed and moving to the ICU was the better option. All that I could gather from the report of the anesthetist is that Rodyanne’s condition when she saw her around 11.15 a.m, had deteriorated further and required emergency admission to the ICU, namely Rodyanne had “severe tachycardia 160/170 min, was in severe respiratory distress, pale +++, with peripheral cyanosis, sweating, cold and clammy and on auscultation massive bilateral creps were heard”. Any doctor could have known that a patient in this condition may go into cardiac arrest and CPR will have to be given. It was therefore necessary for them to have been familiar with the resuscitation methods when a pregnant woman goes into cardiac arrest. The anesthetist on-call agreed with the Commissioner when questioned, that the better course of action was to have gone for a caesarian operation to take the babies out alive or dead and then go for cardio pulmonary resuscitation of Rodyanne, which would have been more effective and successful.

Again it is not clear as to the exact time when an attempt was made to check whether the fetuses were alive. According to the chronological order the anesthetist had written her notes and as admitted by her to the Commission it was only after cardiac massage and Rodyanne was not responding to CPR that Ultra sound had confirmed the death of both fetuses. The Obstetrician –on –Call and the anesthetist however stated before the Commission that the ultra sound was done before cardiac massage and CPR had started. This position was however contradicted by the midwife who received Rodyanne at 9.50 a.m. and who had been at the ICU with Rodyanne; when she was specifically questioned on this matter by the Commissioner. The Consultant-Obstetrician when questioned about the necessity to do a CTG said “Not immediately, when she stabilzes”. When questioned “Don’t you agree that soon after arrival at the Victoria hospital a CTG should have been done or an ultra sound?” his answer was “I don’t think it will be a priority to establish the viability of the fetuses. The priority was to stabilize the patient first.” The anesthetist was also questioned by the Commissioner as to the manner in which CPR was given. The Advanced Life Support practices as published by the Resuscitation Council of UK 2008, under the heading ‘Treatment of Cardiac arrest in pregnancy’was placed before the anesthetist and questioned whether the said recommended practices had been followed; namely, “use a left lateral tilt of at least 15° to relieve caval compression and sand bags, firm pillows, or a purpose made wedge if available” The anesthetist stated that this practice was followed. However the midwife referred to earlier, who was at the ICU denied the use of a left lateral tilt or sand bags.

The Consultant- Obstetrician however agreed that if Rodyanne had been taken to the operating theatre for a caesarian operation even as late as 10.30 or 11.00 a.m. there was a possibility of delivering the babies alive and even resuscitating the mother. 

 

CHAPTER 15

The Manner in which the Hospital Records are maintained and the reliance placed on them by doctors:

The Commission noted that the Antenatal Record of Rodyanne Elizabeth-Fred was in a very poor condition. The notes of the doctors were written in ruled and A4 paper and bonded loosely in cello tape. The pages or the minutes recorded therein are not numbered. The manner the Record had been maintained showed there was room for tampering and removal of pages. The names of the doctors and midwives who examined the patients were not clearly written and often their notes hardly decipherable. The hospital authorities whose assistance I had to seek for a typed transcription of the notes were also in a difficulty to figure out the handwriting of the scribes or as to who they were. The Commission is compelled to conclude that some of the doctors who had examined Rodyanne do not seem to be in the habit of referring to previous notes in the Ante-natal Record. Had they done so the discharge of Rodyanne on the morning of the 31stof December 2009 and the failure to admit her when she came to the Victoria hospital at 1.15 in the morning of the 1st of January 2010 cannot be explained. One of the doctors questioned by the Commission went on to state that at the time he examined Rodyanne she had no complications. This is something the Commission finds incomprehensible. The best way a doctor could come to a proper diagnosis of a patient is by observation of the patient’s condition for sometime and this necessarily involves looking into the history of the patient as recorded in her Ante-natal record. The Commission recommends that properly bound records of medical notes should be maintained with numbered pages and doctors and midwives advised to write their names and notes clearly. The ideal would be to maintain these records electronically with a back up.

 

CHAPTER 16

The state of equipment in the Maternity Ward at the Victoria hospital and Anse Boileau Clinic:

It transpired that there are only two proper CTG machines in the Maternity Ward at the Victoria hospital. There was none available at the Anse Boileau Clinic in the morning of the 1st of January 2010. The Commission was informed that some times the proper green paper that is used for the CTG machine is not available and therefore one could not get a proper reading of uterine contractions and possible fetal distress.

There are only two ultrasound machines for the use of the maternity ward and Hermitte ward. One is kept in the Ante-natal unit and the other at the Hermitte Ward. Thus when an ultra sound has to be done on a pregnant woman she had to be taken to the Ante-natal unit which is on the ground floor or the Hermitte Ward. At Anse Boileau the Doppler was broken on the 1st of January 2010.

Both ECG machines used on Rodyanne on the morning of the 1st of January 2010 were defective. The one in the Maternity Ward had not given an accurate reading and the one in the Male Medical Ward recorded the date the ECG was taken, incorrectly. A midwife in the Maternity Ward complained that it was difficult to take an ECG with the one in the Maternity Ward as the lids which are affixed to the chest does not stick and keep falling off. The ECG in the Male Medical Ward gave the date as 11/03/2009. This ECG clearly showed a defect in the heart. The Bio-Medical Officer of the Victoria hospital called to testify before the Commission categorically stated that this was an ECG taken on the date as recorded therein, namely 11/03/2009 ( November 3rd 2009). Some of the doctors called and the midwife who was there when the two ECGs were taken testified that this was an ECG taken on the 1st of January 2010.  If the Bio-medical engineer is right then it is evident that Rodyanne had a heart condition as far back as November 3rd 2009 which the doctors have failed to detect and treat. The Commission however prefers to rely on the testimony of the doctors and the midwife on this matter because there is no record of an ECG been ordered in the Ante-natal Record of Rodyanne in early November and there is no evidence of Rodyanne having complained of any symptoms associated with a cardiac condition in early November to anyone. But this is a clear illustration of how serious a problem, a defective ECG machine may cause. The Commission recommends that there should be regular checks of all hospital equipments as they can result in wrong diagnosis and also create doubt in the minds of those who are called upon to judge the professional conduct of doctors as in this case.

It also transpired that there was no portable oxygen cylinder in the Casualty at the Victoria hospital when Rodyanne was brought in an ambulance from Anse Boileau Clinic at 9.45 a.m. on the 1st of January 2010.  

Chapter 17

The lack of Protocols or Guide lines to deal with Emergencies:

It is clear that the manner Rodyanne was handled from the time of her arrival at the Anse Boileau Clinic up to the time of her death at the Victoria Hospital was not right. No one from Anse Boileau Clinic called the Victoria hospital to notify Rodiyanne’s condition. There was no portable oxygen cylinder at the Casualty. On arrival at the Victoria hospital, Rodyanne was seen by a doctor only after 40 minutes. It took almost one hour for the doctors attending on Rodyanne to take a decision as regards her treatment. The anesthetist informed the Commission and had recorded in her notes that there was “no blood transfusion available”. On being questioned by the Commission she stated there was no Hemorrhage Protocol for the ICU. The Advanced Life Support practices as published by the Resuscitation Council of UK 2008 states: “Maternity units should have a massive hemorrhage protocol”. This is because hemorrhage can occur both antenatally and postnatally due to ectopic pregnancy, placental abruption, placenta praevia and uterine rupture.

 

CHAPTER 18

Dissatisfaction among hospital staff in regard to terms and conditions of work

The Panel of Inquiry appointed by the Ministry of Health has this to say in their Report:

“Staff attitude must always be alert and positive to ensure provision of an effective service. In order to achieve this, it is necessary that staff is well rested despite the Health Care Service being an essential service. As health professionals we would not let a person drive if he/she has not slept for 24 hours but we allow a doctor to make life and death decisions on no sleep! Sometimes the staff shortages continue for longer than expected and a doctor must follow a 24 hour call duty by another one, after only one night at home i.e. a one in two rota. This is unhealthy and should not be allowed for the sake of the patients and for the doctors as well. At the nursing level, the same thing happens when there is a shortage but to a lesser extent.”

“During the festive season many staff members take their annual leave, putting a heavy burden on the remaining staff who end up tired and frustrated. Inadequate staffing levels in an essential service, leading to doubling of shifts for nurses, 24 hour calls for doctors which often leads to 36 hours of duty, can affect decision making at all levels. Attitudes change involuntarily and it seems that no one really cares, as long as the work is done. Encouragement is not always forthcoming and that affects morale”. This is a serious indictment on those who have responsibility for the running of this Ministry.

These sentiments were expressed even before the Commission. It was stated that there are insufficient doctors, midwives and nursing attendants at the maternity ward so that they can work on shifts without being overworked or tired.  The midwives said that even there were insufficient doctors because on public holidays and on weekends only one doctor works. They said that they were “not at all” happy with their terms and conditions of work and especially their salaries. There was no board or person to whom they could air out their grievances and no one came around to ask them what their problems were. This did not come out so strongly before the Commission from the doctors. The Commission decided to incorporate the views highlighted in the Report of the Inquiry panel that certainly have more inside information as to how the system works. The fact however remains that in the case of Rodyanne Elizabeth-Fred the issues of inadequacy of staff or being overworked does not apply as there were only about 6 patients in the Maternity ward  during the night of the 31st of Decmber 2009 and the morning of the 1st of January 2010. There were enough beds in the Maternity Ward that night to house Rodyanne. The Commission decided to make reference to the issue of shortage of medical personnel and their dissatisfaction as to their terms and conditions of work for purposes of future reference.

The Commission however does not agree with the view expressed by the Panel of Inquiry that “We also find that there were extenuating circumstances, namely the festive season which may have impacted negatively on the management of this lady’s case”. Festive season can never be an extenuating circumstance in the treatment of a patient and especially of a pregnant mother carrying twins, in the last stages of her pregnancy and about to be delivered and with so much of discomfort. There should not be a repetition of the sin committed almost two thousand years ago when Mary the mother of Jesus was rejected by the inn-keeper in that cold wintry night in Bethlehem when she had to be delivered. Compassion, alone should have made the doctor to admit her.  

 

CHAPTER 19

The Rights of the Unborn vis-a-vis the Right to life enshrined and entrenched in article 15 of the Constitution of Seychelles

An interesting issue that ought to be considered by this Commission is the position of the unborn or a fetus. That is because when Rodyanne’s condition deteriorated on the 1st of January 2010 at the Victoria hospital the ‘priority’ had been on saving the life of Rodyanne without any concentration on the  unborn babies.  Does article 15 of the Seychellois Charter of Fundamental Human Rights which guarantees the Right to life apply to the fetus that is not yet born?  Article 15(1) states:

“Everyone has a right to life and no one shall be deprived of life intentionally.”

And article 15(3) states: “Clause (1) is not infringed if there is a loss of life- (a) by any act or omission which is made not punishable by any law reasonably justifiable in a democratic society;…………..”

The Termination of Pregnancy Act (Cap 236) provides for the medical termination of pregnancy in certain circumstances under the specified conditions provided therein. This comes within the purview of article 15(3)(a) of the Constitution.  Sections 147 to 149 of our Penal Code make it an offence to terminate a pregnancy except under the provisions of the Termination of Pregnancy Act. The Termination of Pregnancy Act specifically provides that a person shall not be guilty of a felony under section 147, 148, or 149 when a pregnancy is terminated under the Act. As stated in the dissenting opinion by Judges Ress and Mulorani in the case of Vo vs France, 2004, in the European Court of Human Rights, if a fetus was not considered as a ‘life’ that should be protected, specific laws on voluntary abortion, as they exist in all the contracting countries would not have been necessary. The same thing could be said of our Termination of Pregnancy Act.

Of the 24 articles in the Fundamental Human Rights Charter in the 1993 Constitution 14 of them use the word ‘Every person’, 6 “every citizen’ and 4 others ‘women’, ‘children’, ‘family’, ‘aged and the disabled’.  Only articles 15, which deals with the Right to Life and 32, which deal with protection of families uses the word ‘everyone’. 

Even if pro-abortion advocates were to argue that a fetus is not a human being it is to be noted that article 15 uses the word ‘everyone’ and not ‘every person’. The word ‘Everyone’ includes any individual thing or person whereas the word ‘person’ includes only a human being or corporation. Thus it cannot be denied that a fetus is not a ‘thing’. Thus even if we are to go along with the thinking of the pro-abortion advocates,  a fetus, in view of the wording of article 15, is certainly covered.

In article 29 (1) (e) the State has given an undertaking “to take steps to reduce infant mortality and promote the healthy development of the child”. Reduction of infant mortality and promotion of the healthy development of the child necessarily connotes taking care of the fetus. The development of a child begins from its conception.

In article 30 the State has given an undertaking to ensure that a working mother is afforded special protection with regard to paid leave and her conditions of work during such reasonable period as provided by law before and after childbirth. The special protection afforded therein to a mother before childbirth is a clear indication of the undertaking of the State to protect the fetus.

At article 32 “The State recognizes that the family is the natural and fundamental element of society and the right of everyone to form a family and undertakes to promote the legal, economic and social protection of the family.” The protection of the family necessarily connotes the protection of the fetus, for there would be no family, without a fetus that grows into a child. The fact that ‘everyone’ has a right to a family shows that a father also has right to the fetus just as much as the mother contrary to pro-abortion advocates who argue that it is the mother who has a right over her fetus. The State too has a right over the fetus for it is the fetus that grows into a child to form a family which is considered the natural and fundamental element of society. Without a fetus there would be no child and without a child there would be no family and without a family there would be no society and without a society there would be no State.

Article 906(1) of the Civil Code of Seychelles Act states: “To be capable to receiving a gift inter vivos it shall be sufficient to have been conceived at the time when the gift was made.” and “To be cable of receiving by will it shall be sufficient to have been conceived at the death of the testator.”

These provisions are a clear indication that our law recognizes a fetus as a ‘life’.

There has been much debate as to whether a fetus is alive. Just as a single-celled amoeba is alive, a human being in any stage of life is alive. R. Yanagimachi begins his essay on "Mammalian Fertilization" with the statement: "Fertilization in mammals normally represents the beginning of life for a new individual." Thus the embryo is a "new individual", genetically different from his or her parents, and containing all the necessary genetic information for further development. The scientific consensus is that "the human embryo is a genetically human, discrete and a live unit, organically single and individual, with a self-contained power to organise his or her own growth, multiplication and differentiation in a way that ordinarily leads to a human adult."  A fetus has its own unique DNA and simply passes through the many stages of development prior to birth. Its life force does not come from the mother’s body but is contained within itself. The mother’s body simply serves to nourish and support it until it can do so on its own. Things that are alive develop, grow, and function. Things that are not alive do nothing.

An embryo develops into a fetus and so on, at an astonishing rate-especially at its earliest stages-a function only of life. At 6 weeks the embryo is about 1/5 th of an inch. A heart has begun to beat and the head, mouth, liver and intestines have begun to take shape. At 10 weeks thefacial features, limbs, hands, feet, fingers, and toes become apparent. The nervous system is responsive and many of the internal organs begin to function. By the 14th week the muscles begin to develop and sex organs form. Eyelids, fingernails, and toenails also form. The child’s spontaneous movements can be observed. By the 18th week the child blinks, grasps, and moves the mouth. Hair grows on the head and body. By the 22nd week sweat glands develop, and the external skin has turned from transparent to opaque. By the 26th week the fetus can now inhale, exhale and even cry. Eyes have completely formed, and the tongue has developed taste buds. Under intensive medical care the fetus has over a 50% chance of surviving outside the womb. By the 30th week the fetus is usually capable of living outside the womb and would be considered premature at birth. From the 38th week onward the fetus is considered a full-term baby and is now ready to live outside his mother’s womb and can survive on its own.

One of the theories about the origin of the name caesarean operation is that it is said to have derived from a Roman legal code called "Lex Caesarea" (imperial law), which allegedly contained a law prescribing that the baby be cut out of its mother's womb in the case that she dies before giving birth. This again suggests the right of the unborn to live.

 Charles C. Morris was prosecuted for the murder of Veronica Jane Thornsbury and her still born fetus in 2001, when she was in labor and on her way to the hospital. Morris was under the influence of drugs when he smashed into her car and killed her. The Court of Appeal of Kentucky, USA, overturned the conviction in regard to the death of the fetus. Judge John Miller was quoted as saying, at that time: “We view the born-alive rule as providing a cogent and well-defined legal criterion which has existed as common law in this commonwealth for more than half a century.” Justice Teena in rebuking him had said: “I just don't think it's fair that people can sit up in their high place and decide she's not a baby. I saw my daughter's first child during an ultrasound when she was 7 months pregnant and he was sucking his thumb. How was something, that's not a something, sucking its thumb?”.  In February 2004, Kentucky enacted a law which criminalized “fetal homicide". The law defines an "unborn child," as "a member of the species homo sapiens in utero from conception onward, without regard to age, health, or condition of dependency."

Currently, almost all the American states recognize the unlawful killing of an unborn child as homicide in at least some circumstances.

On April 1, 2004, President Bush signed into law the Unborn Victims of Violence Act, also known as "Laci and Conner's Law." This law states that any "child in utero" is considered to be a legal victim if injured or killed during the commission of a federal crime of violence and a "child in utero" has been defined as "a member of the species homo sapiens, at any stage of development, who is carried in the womb." Lawful abortions conducted with the permission of the mother are exempted from prosecution under the bill.  In his remarks before signing the bill, President Bush said, "As these and the other families understand, any time an expectant mother is a victim of violence; two lives are in the balance, each deserving protection, and each deserving justice.  If the crime is murder and the unborn child's life ends, justice demands a full accounting under the law."

American law however traditionally granted unborn children legal rights and protections which are essentially the same as those of people who have already been born. Most legal rights are controlled by state rather than federal law, so the exact legal status of the unborn varies from state to state. According to Ohio Revised Code §2105.14, an unborn child has the same legal rights of inheritance as a born child. In 1986, Missouri passed a law which stated that unborn children in Missouri, subject to the Federal Constitution and Supreme Court interpretations thereof should have "all the rights, privileges, and immunities available to other persons, citizens, and residents of this state". This law was challenged before the Supreme Court in the case of Webster v Reproductive Health and the law was upheld.

Article 6(5) of the International Covenant on Civil and Political Rights 1966, states that death sentence should not be carried out on pregnant women. This was to save the life of an innocent unborn child. This is an explicit recognition in international law that human rights enjoyed by every member of the human family include the unborn. This principle was reflected in the common law in England, Australia and many other commonwealth countries when each country had the death penalty.

In article II of the Convention on the Prevention and Punishment of the Crime of Genocide 1948, genocide has been defined as "killing members of the group" and "imposing measures intended to prevent births within the group." The latter inclusion explicitly recognizes the right to life of the unborn.

In the preamble to the Convention of the Rights of the Child it is stated: “Bearing in mind that, as indicated in the Declaration of the Rights of the Child, "the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth". Article 1 of the Convention states: “For the purposes of the present Convention, a child means every human being below the age of eighteen years………………..This article makes no mention  of a minimum age. If the fetus is not a human being, what is it? A fetus, from the moment of conception, is a human being, because it meets the five essential scientific criteria. It is a living organism that (1) has a metabolism, (2) grows, (3) can reproduce at some stage of its normal life process, (4) has a complete and unique set of DNA, and (5) its DNA is classified as belonging to the human species.

The right to life of all human beings has the nature of an intransgressible norm already contained in the Universal Declaration of Human Rights 1948, the International Covenant on Civil and Political Rights 1966 and the Declaration of the Rights of the Child 1959. In other words, under international law the unborn child is protected. Thus according to the Vienna Convention on the Law of Treaties, the rule regarding the protection of life before birth could be considered as "jus cogens" since it formed part of the common conscience of members of the international community. Jus cogens is a peremptory norm of general international law from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.

 Article V of the African Charter on the Rights and Welfare of the Child, 1999, states: “. Every child has an inherent right to life” and that “States Parties to the present Charter shall ensure, to the maximum extent possible, the survival, protection and development of the child.

Article 4 of the American Convention on Human Rights, 1978 in describing the Right to Life states: “Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception……”. It is clear from this provision that the fetus is treated as a ‘person’.

In Ireland, Article 40, §3, of the Constitution implicitly prohibits research on the embryo by stating the right to life of the “unborn child” is equal to that of the mother. Article 40.3.3 of the Constitution says, "The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother."

In Hungary (Law No. LXXIX of 1992) and Poland (Law of 7 January 1993), the life of the unborn child must be respected and protected from its conception.

In Latin America, the Civil Code of Argentina states that the legal status begins at the moment of conception (Art. 63 and 70) and in 1994, this principle was embodied as a constitutional right.

The right to life from the moment of conception is recognized in Peru by the Code of Childhood and Adolescence (Law 27.337), in Costa Rica by Law No. 7739 of 1998, and in Ecuador by Article 49, §1, of the Constitution (1998).

In November 2006 an Indian State consumer court delivered a ruling in favour of a woman seeking an insurance claim on the death of an unborn child. The court determined that the unborn baby was a living human being entitled to personhood and required the insurance company to pay the claim. Judge B.B. Vagyani issuing the ruling for the three-judge panel stated that the term ‘human fetus’ implies a living, growing organism.

It is clear that the term ‘fetus’ is used by pro-abortion advocates to offset an inconvenient truth. It is generally used to alleviate any culpability for ending the life of another human being. When parents want the child to be born they consider it a human being at the point of conception and call it their ‘baby’. When they do not want the child to be born they find it convenient to consider it as ‘not- yet-human’ and call it merely a ‘fetus’. One of the doctors who testified before the Commission stated that some one in the womb is a fetus and a child is someone who is born.  

Article 15 needs an evolutive interpretation of the Constitution as a living instrument which is to be interpreted in light of present day conditions so that the dangers of genetic manipulation and the risk that scientific results such as reproductive cloning of human beings may be used for a purpose undermining the dignity and identity of the human being can be confronted. In this respect it should be noted that a number of recent conventions (Convention on Human Rights and Biomedicine, on the Prohibition of Cloning Human Beings, 1989 and the Draft additional Protocol to the Convention on Human Rights and Biomedicine, on biomedical research) and the prohibition on the reproductive cloning of “human beings” under the Charter of Fundamental Rights of the European Union show that the protection of life extends to the initial phase of human life.

Several nations around the world observe the "Day of the Unborn Child" as an official day of recognition for the unborn. The date coincides with the Christian celebration of the feast of the Annunciation, marking the conception of Christ in the womb of the Virgin Mary.
The movement originated in El Salvador in 1993 as the "Day for the Right to be Born," and has since spread to include multiple countries in South and Central America (Argentina, Chile, Costa Rica, the Dominican Republic, Guatemala, Nicaragua, Peru and Uruguay), as well as the Philippines and Australia. Other nations celebrating unofficial observances include Austria, Slovakia, and Spain.
 

The ‘Right to Life’ in article 15 of the Constitution implies the positive obligation of the State to protect the life of the fetus for the effective protection of the right to life.

Article 27(1) of the Constitution states: “Every person has the right to equal protection of the law including the enjoyment of the rights and freedoms set out in this Charter……..” If the fetus is considered as a person in the eyes of the law then each of the twins had a right to life just as much as their mother and the State had a duty to protect the right of every one of them.  The 38 old weeks twins had every chance of survival if only the doctors had opted for a caesarian, when Rodyanne Elizabeth-Fred was admitted at the hospital in the last week of December at least in the early hours of the new years morn. Seychelles then was very likely to have been blessed with the arrival of two baby girls and spared the death of a young mother.

The sanctity of life is so enshrined as a fundamental principle of law and commands such respect from the law that each life has an inherent value in itself. The doctors, if we are to go along with what they believed on the 1st of January 2010, were faced with a tough decision. The worthwhileness of the proposed two actions, namely doing a caesarean and taking the twins out by risking the life of the mother or stabilizing the mother by risking the life of the twins. These were the factors to be weighed. By trying to stabilize the life of the mother who was dying in the ICU, they lost 38 weeks old, two fully grown babies who could have survived if only the doctors had decided to go for a caesarean. The correct solution was to have balanced the welfare of the twins against the mother and find the least detrimental alternative. In one scale was placed the right to life of the mother and in the other the right to life of the twins. This right is universal and we all share it equally. The scales remain in balance. The doctors have no right to value the quality of one human life as worth more than another’s, namely the life of each twin vis- a vis the mother. In the Hospital Records one of the doctors had recorded (“priority is mother’s life”). The same doctor is alleged to have said: “I will try to save the mother. I don’t care about the babies”. What was most disturbing was the evidence of a very senior doctor before the Commission when he repeatedly said before the Commission “I would sacrifice the two babies in the interest of the mother” and his second statement was made when the Commissioner asked him the question: “You say you would sacrifice the lives of the two babies for a dying mother, is that what you are saying?”. It was this same doctor who said: “I don’t think it will be a priority to establish the viability of the fetuses. The priority was to stabilize the patient first”, when his views were sought by the Commissioner regarding the failure to take a CTG soon after Rodyanne’s admission to the hospital at 9.50 a.m. on the 1st of January 2010. These comments have clearly been made in ignorance of the implications of articles 15, 27(1), 29, 30 and 32 of the Constitution.

 

CHAPTER 20

 

Rights of Patients and Patient Autonomy

         

Article 29 of the Constitution states: “The State recognizes the right of every citizen to protection of health and to the enjoyment of the attainable standard of physical and mental health and with a view to ensuring the effective exercise of this right the State undertakes-

………………………………….

 (d) to promote individual responsibility in health matters

………………………….”

For a citizen to have full appreciation of his constitutional right to protection of his health, to the enjoyment of the attainable standard of his/her physical and mental health and to have individual responsibility in health matters he/she must be informed of his/her state of health and of the methods of treatment available (including diagnostic methods) that are available. If this information cannot be supplied to the patient, it must be supplied to a close relative. Medical care personnel shall, to the extent possible, discuss with the patient when planning the treatment and when treating him/her. As part of this, the person with the responsibility for the care must make sure that the patient receives information about his/her state of illness and the methods of treatment available. The obligation of disclosure should be adapted to the patient’s ability to understand and assimilate it. When there is a choice of equally good treatment, the patient has the final decision. However, the effect of an alternative has to be related to the costs for the health services system, which is evaluated by the doctor and the Overseas TreatmentBoard. All information given and the patient’s decision are to be documented in the patient’s medical record. This is aimed at individualizing the information, increasing the doctor-patient relationship and promoting individual responsibility in health matters as stipulated by article 29 of the constitution. This obligation is echoed in the Health and Medical Personnel Act 1994, of Sweden.

Under the American healthcare system patients have the right to make a Treatment Choice. As long as a patient is considered to be of sound mind, it is both his right and responsibility to know about the options available for treatment of his medical condition and then make the choice he feels is right for him. Under the Patients' Bill of Rights of U.S.A. adopted in 1995 patients have a right to be informed about their medical condition, the risks and benefits of treatment and appropriate alternatives.

The Universal Declaration of Human Rights recognizes “the inherent dignity” and the “equal and unalienable rights of all members of the human family”. According to the WHO it is on the basis of this concept of the person, and the fundamental dignity and equality of all human beings, that the notion of patient rights was developed. Under article 16 of our constitution “Every person has right to be treated with dignity worthy of a human being”. It would be difficult to imagine that recognition is given to such a right if a patient is kept in the dark as to his medical condition, has no choice as to the treatment given to him/her, is not consulted as it was in this case as to what needs be done in regard to the twins Rodyannne was carrying and worse still when Rodyanne’s request for an alternative treatment, firstly for labour induction and thereafter for caesarian operation, was not heeded to. This is more for the reason that article 28 of the Constitution states: “The State recognizes the right of access of every person to information relating to that person and held by a public authority which is performing a governmental function……………” The information referred to herein should necessarily include information gathered by a medical examination of the patient or the symptoms as understood by medical personnel of a patient.

 In the case of Airedale NHS Trust V Bland [1993] AC 789 Lord Mustill said: “If the patient is capable of making a decision on whether to permit treatment,…..his choice must be obeyed even if on any objective view it is contrary to his best interests”.

In Re T [1993] Fam 95, Lord Donalddson M said: “the patient’s right of choice exists whether the reasons for making that choice are rational, irrational, unknown or even non-existent.”

In Chester v Afshar [2004] UKHL 41 Lord Steyn said: “In modern law, medical paternalism no longer rules, and a patient has a prima facie right to be informed by a surgeon of a small, but well established, risk of serious injury as a result of surgery.”

In Smith v Tunbridge Wells Health Authority[1994] 5 Med LR 334, Morland J said: “the doctor…must take reasonable care to ensure that his explanation of the risks is intelligible to his particular patient.  The doctor should use language, simple but not misleading, which the doctor perceives …will be understood by the patient so that the patient can make an informed decision as to whether or not to consent to the recommended surgery or treatment”.

In Sidaway v Board of Governors of Bethlem Royal Hospital and Maudsley Hospital[1985] AC 871 Lord Templeman said: “There is no doubt that a doctor ought to draw the attention of a patient to a danger which may be special in kind or magnitude or special to the patient.”

In Pearce v United Bristol Healthcare NHS Trust [1999] P.I.Q.R. P53, Lord Woolf said: “In a case where it is being alleged that a plaintiff has been deprived of the opportunity to make a proper decision as to what course he or she should take in relation to treatment, it seems to me to be the law… that if there is a significant risk which would affect the judgment of a reasonable patient, then in the normal course it is the responsibility of a doctor to inform the patient of that significant risk, if the information is needed so that the patient can determine for him or herself as to what course he or she should adopt”.

The General Medical Council Guidance, 2008 of the UK onConsent states: Whatever the context in which medical decisions are made, you must work in partnership with your patients to ensure good care. In so doing, you must:

(a) listen to patients and respect their views about their health,

(b) discuss with patients what their diagnosis, prognosis, treatment and care involve

(c) share with patients the information they want or need in order to make decisions

(d) maximise patients’ opportunities, and their ability, to make decisions for themselves

(e) respect patients’ decisions.

GMC Guidance also stipulates that a doctor   should not withhold information necessary for making decisions for any other reason, unless he/she believes that giving it would cause the patient serious harm. In this context ‘serious harm’ means more than that the patient might become upset or decide to refuse treatment.

 

Article 1382(1) of the Civil Code of Seychelles states that every act whatever of man that causes damage to another obliges him by whose fault it occurs to repair it. Fault is the result of a positive act or of an omission. The duty of care ingrained in the positive duty to act includes a duty of reasonable disclosure. The claimant under this article for non disclosure of information would have to further establishthat he/she has suffered an injury that has made him/her worse off than he/she would have been if the procedure had not been performed;that his/her injury is the materialisation of the undisclosed risk or outcome andthat if he/she had been informed of this risk or outcome, he/she (or a reasonable patient) would not have consented to the procedure and the injury would not have occurred.

 

In the case of Chester v Afshar[2004] UKHL 41 Lord Hope said:“The injury was intimately involved with the duty to warn. The duty was owed by the doctor who performed the surgery that Miss Chester consented to. It was the product of the very risk that she should have been warned about when she gave her consent. So I would hold that it can be regarded as having been caused, in the legal sense, by the breach of that duty.

In Lybert v Warrington HA[1996] 7 Med LR 71 it was held: that the warning was inadequate because the timing and the conditions in which it was given were inappropriate, and the warning was not sufficiently emphatic and clear to impinge upon the plaintiff’s thoughts.

In view of articles 29 and 28 of our Constitution and the developing jurisprudence in this area in other jurisdictions the time has come for a change of attitude in the manner of treatment of patients. The Commission recommends to the Government to consider enacting a Health and Medical Personnel Act, similar to the one in Sweden or a Patients’ Bill of Rights like in the USA. Until such timeHealth Authorities should issue Guidelines and Protocols in the manner of treating patients in accordance with what has been set out above.

 

CHAPTER 21

SUMMARY OF CONCLUSIONS AND RECOMMENDATIONS:-

1. The failure to diagnose PPCM in the circumstances enumerated in this case amounted to professional negligence on the part of the obstetricians who saw her.

The Commission recommends that the doctors should keep themselves abreast with recent developments in medicine by constant research on the internet and by reference to books. They should in the future place reliance on the Chart for Focussed medical history for PPCM Screening and look for early symptoms of heart failure, during the last month of pregnancy and 5 months after delivery.

1. The discharge of Rodyanneon the morning of the 31st  of December 2009 indicated that it had been done without a proper assessment of her condition and amounts to professional negligence in the circumstances enumerated above.

Doctors should place more reliance on the past history of a patient as recorded in the Ante-natal Record rather than make decisions on what they observe at the time of examining a patient.

1. Failure to admit Rodyannewhen she came to the hospital at 1.15 a.m. in the morning of the 1st of January 2010 amounts to professional negligence. Had she had been admitted the hospital authorities would have been able to observe her deteriorating condition and taken prompt remedial action.
2. There was negligence on the part of the authorities at the Anse Boileau Clinic in not informing the authorities of Victoria hospital of the condition of Rodyanne prior to her transfer to the Victoria hospital on the morning of the 1st of January 2010.
3. The delays in properly dealing with the case of Rodyanne at the Victoria hospital after her admission at 9.50 a.m. on the morning of the 1st of January 2010 until her admission to the ICU at 11.30 a.m.  is unpardonable,  amounts to high professional negligence and calls for strict disciplinary action against those responsible.
4. The decision to remove Rodyanne, in the condition she was in, to the ICU for stabilisation instead to the Operating Theatre for a caesarian operation was wrong and was contrary to the practices as published in Advanced Life Support by the Resuscitation Council of UK 2008.
5. The manner the Ante-natal records are maintained in the Victoria hospital as stated earlier is extremely poor. The Commission recommends that properly bound records of medical notes should be maintained with numbered pages and doctors and midwives advised to write their names and notes clearly. The ideal would be to maintain these records electronically with a back up. Doctors must be advised to always refer to the earlier notes before taking any important decision regarding a patient.
6. The state of certain equipment in the Maternity ward at the Victoria hospital and Anse Boileau clinic is much to be desired for. There should be sufficient equipments in good working conditions and regular checks to see how well they function.
7. There is a lack of Protocols and Guide lines to be followed in case of emergencies as enumerated earlier and steps should be taken to have them in place.
8. There is a shortage of staff in the maternity wards and clinics and the staff is very much dissatisfied with their terms and conditions of work.  This needs urgent attention by those who are responsible for the administration of the Ministry of Health.
9. The right to life of a fetus or the ‘unborn’ comes within the scope of the right to life provision enshrined and entrenched in the Constitution. The State has to take every provision to give full recognition to this right. The Commission recommends that the Government considers declaring the 25th of March of each year as the "Day of the Unborn Child”, as has been done in several South and Central American countries, in European countries, in the Philippines and Australia in order to focus attention on the rights of the unborn.
10. There has been a violation of the rights enumerated in articles 29 and 28 of the Constitution by one or two of the doctors at the Victoria hospital by not heeding to the request of Rodyanne for a caesarian operation and not keeping her properly informed of her condition. 

The Commission recommends to the Government to consider enacting a Health and Medical Personnel Act, similar to the one in Sweden or a Patients’ Bill of Rights like in the USA. Until such timeHealth Authorities should issue Guidelines and protocols in the manner of treating patients in accordance with what has been set out in this Report.

1. The Commission recommends that the legal heirs of Rodyanne Elizabeth-Fred be compensated and the amounts to be paid to them be determined by the Attorney-General.

 

CHAPTER 22

ACKNOWLEDGEMENTS:-

The Commission thanks the Secretary to the Commission Mrs. Vivienne Christine Vadivelo; stenographers Ms. Marie Claire Julie, Ms. Marie-Vonne Gabriel and Ms Jacqueline Simeon; Mr. Danny Michel, the Court interpreter; Mr. Biko Biong, the IT Technician; and Cpl. Chantal Prea of the Seychelles Police Force and the staff of the Court of Appeal for their unstinted support in the work of the Commission.

The Commission acknowledges with gratitude the assistance given by Dr. Gedeon of the Ministry of Health, Mr. Ernest Quatre, Commissioner of Police and Ms. Christel Marie, Assistant Superintendent of Police.

 

CHAPTER  23

LIST OF EXHIBITS

1. Statement of Carota Angelle Marie to the police.
2. Statement of Ivy Eugenia Elizabeth to the police.
3. Antenatal appointment card.
4. Ultra sound scan picture of the twins dated 27/05/2009.
5. Exercise book maintained by Rodyanne Elizabeth-Fred regarding her pregnancy.
6. Statement of Peggy Hazel Marie.
7. Statement of Marie Leonne Philoe.
8. Statement of Jela Sherine Fred.
9. Statement of Thelma Flory Estico.

10.        Statement of Ryan Dominic Fred.

11.        Antenatal Record maintained by the Victoria hospital on Rodyanne Elizabeth Fred.

1. E.C.G. reading of 01/01/2010.
2. E.C.G.reading of 11/03/2009.
3. Memo from the Ministry of Health regarding accurate date of E.C.G.
4. Yellow Referral Notes from anse Boileau.

12.        Report of nurse Flavia Louis.

13.        Report of Midwife Dorothy M. Athanase.

14.        Statement of Midwife Dorothy Athanase to the police.

15.        Report of Dr. Vijay Kumar.

16.        Vehicle Log Card of ambulance driver by Clermont Simeon.

17.        Post Mortem Examination Report.

1. PPCM Screening Chart for early symptoms of heart failure during last month of pregnancy.

18.        Report of Dr. Karen Shaoying Chen.

19.        Report of Dr. Sarka Viktorva.

20.        Report of Nurse Manager Gylian Mein.

21.        Report of Dr. Maxvel Fock Tave.

22.        Report of Dr.Zi-Ul- Hasan Rizvi.

23.        Report of the Panel of Inquiry appointed by the Ministry of Health.

24.        Report of Midwife Cynthia Maria Simeon.