NRH attempted to bury truth in �baby swapping� horror
Lebogang Mosikare | Friday November 18, 2016 14:59
According to the judgement, the hospital improperly interpreted the confidentiality regulation (under the Botswana Health Practitioners Act) involving medical practitioners and patients to argue their case, but somehow backtracked for unknown reasons during oral arguments before court.
“As to why there was then a change of heart on the part of the respondents’ hospital superintendent following a letter that the applicant’s attorney wrote to them is not known. What is certain however, is that despite the change of heart, the hospital superintendent is legally enjoined to provide such information to the applicant’s attorney,” said Nyamadzabo.
The case, involved 37-year-old Dineo Bentu, who had taken to task the Attorney General (AG), in her (AG’s) representative capacity for, and on behalf of the Ministry of Health and Wellness and NRH. She was arguing that the corpse that the hospital wants to give her to bury is not her child.
In her notice of motion, the applicant sought an order directing NRH to release copies of all documentary evidence in their possession, custody and or control, documents relating to, but not limited to the investigations that led to the death of Oratile Bentu, said Nyamadzabo.
The documents, Nyamadzabo said, included a photo album for postmortem, postmortem report, hand-written notes of all doctors and or nurses who attended to Dineo Bentu from October 11 to October 17, 2016, and hand-written notes of the all doctors and/or nurses who attended the dead child amongst other documents.
In addition, the applicant wanted an order directing and compelling the superintendent of NRH to conduct a DNA test on the late child and to release to the applicant its result, among various reliefs sought by Bentu.
Giving the background of the dispute, the judge said on October 12, the applicant was induced into labour at NRH.
“The complainant stated that she does not remember what happened after she gave birth by cesarean operation nor subsequently given her status, the medication which was administered on her. She said that the status she was in meant that she did not see the child she delivered before the respondents’ medical team decided to refer the child to Bokamoso Private Hospital,” Nyamadzabo said.
The judge said although the respondents initially disputed many of the reliefs sought by the applicant, they later admitted them during oral submissions.
“The respondents had essentially based their opposition to the reliefs sought on the existence of a purported policy…which prevented them to release such medical records to the applicant other than by only making a summary of all the information contained in the records,” Nyamadzabo said. This contention by the respondents’ hospital superintendent cannot assist their case as the alleged policy if it exists, has neither been availed to this court nor the applicant’s attorney confirming such a position, said Nyamadzabo.
“…Even assuming that such a policy exists as correctly stated by the applicant’s attorney, it cannot override the requirements of statute or law as a policy does not have the status of law. In this regard mention has been made by the applicant’s counsel of Regulation 21 of the Botswana Health Professionals Act, which prohibits medical practitioners from revealing medical information of patients “without the express(ed) consent of the patient”.
“It goes without saying that the prohibition generally implies not to releasing that information to third parties and not to patients or their legal parents and guardians…It is therefore strange that the respondents’ hospital superintendent could talk matters of policy or even public policy preventing such disclosure when it is actually in the interests of public policy for such disclosure to be made to the applicant as that information concerns her child who was born prematurely,” Nyamadzabo said.
He stated that other relevant statutes in this regard, which deal with personal information entrusted to the nurse or midwife can only mean that information cannot be disclosed to certain third parties, but not to the patient. He added that the applicant’s attorney is entitled to be availed such information if they write a request on behalf of their client.
“As regards to the DNA test… I am persuaded by the contentions of the applicant’s attorney who argued that the applicant ought not to bear costs of the DNA test more so that there is a cloud as to whether the child who the respondent wants her to bury is her child or not. The applicant was not consulted when a decision was taken to transfer the child to Bokamoso,” Nyamadzabo said. He added: “It is clear that the applicant did not see the child before it was transferred to Bokamoso… It is also clear from some of the respondents’ documents that the baby is variously described as a ‘he’ or ‘she’, and as such, the respondent should bear the costs of the DNA test and postmortem examination”.
NRH would have to brace itself for a gruelling lawsuit after the applicant buries her child. She told Mmegi that she is just waiting for the DNA test to be conducted on the corpse before hauling the NRH over the coals again in the near future.