THE Office of the Director of Public Prosecutions (ODPP) has ruled that no criminal charges are to be laid against Jodian Fearon’s obstetrician or any of the medical personnel named in the statements at Andrews Memorial Hospital (AMH), Victoria Jubilee Hospital, Spanish Town Hospital or the University Hospital of the West Indies (UHWI).

In the meantime, the ODPP further ruled that no useful purpose would be served in remitting this matter to the coroner, as a coroner’s jury properly directed in law would inevitably arrive at the same conclusion as outlined in the ruling.

Fearon, a first-time mother, died on Friday April 24 after a journey that saw her being whisked across the Corporate Area from one hospital to another.

Yesterday, the ODPP, in a statement issued to the media, said consequent on a referral of a file provided by the Jamaica Constabulary Force Criminal Investigations Branch (CIB) pertaining to the matters touching and concerning the death of Fearon, it issued a ruling dated September 29, 2020 which was returned to the police with the original file and a copy file. It further said the ruling was based on the material statements, reports, and video footage from the UHWI, which were the fruits of the police investigations contained in the file referred to the ODPP.

According to the information, Fearon, on the recommendation of her private obstetrician, checked into AMH based on some discomfort she was experiencing which he deemed would necessitate the delivery of her baby. While there, Fearon was said to complain about shortness of breath. A subsequent check on her oxygen saturation level, which was below normal, led to suspicions of a possible case of COVID-19. When this was brought to the attention of key medical personnel the indication was that the patient had to be transferred, as Andrews did not have the facilities to treat with a COVID-19 patient. Calls were made to the UHWI and Victoria Jubilee Hospital for the patient to be transferred but were not successful.

According to the information from the ODPP, the UHWI indicated that they would accept the patient but the maternal ward would have to accept her first in the intensive care unit (ICU). Victoria Jubilee Hospital indicated that it could not accept the patient as all its beds for COVID-19 patients were occupied.

The decision was taken to have Fearon remain at the facility overnight and be transferred to the UHWI after delivery.

On the fateful day in question Fearon’s labour was induced, but medical personnel, on realising that her oxygen was still low, decided to perform a Caesarean section. However, another medical personnel, upon learning of the patient’s low oxygen level and possible COVID-19 status, advised that the patient was not a good candidate to be dealt with by AMH as she would most likely need post-operative ventilatory support, which that facility was not equipped to provide.

The UHWI was then contacted but, upon learning that a COVID-19 test had not been done, indicated that it could not accept Fearon.

According to the narrative, Spanish Town Hospital then agreed to take the patient. Upon arrival there, consequent to some miscommunication, the isolation room had not prepared and Fearon had to wait in the ambulance for approximately one hour and 45 minutes before she was admitted.

Fearon, after being handed over, gave vaginal birth to a healthy baby assisted by vacuum extraction.

She was diagnosed and treated for heart failure there and transferred to the ICU at the UHWI at or about 5:47 pm, as Spanish Town Hospital did not have an ICU.

Upon arrival at the UHWI, Fearon was interviewed by the ICU team and admitted to the A section — an area designated for COVID-19 patients and suspected cases. Patients are monitored from another room via cameras. At or about 10:06 pm a call was received from the ICU that Fearon had got out of bed, unplugged her vitals, and was no longer in view of the camera.

The team dressed in their personal protective gear and upon entry realised that Fearon was slumped over against the ventilator. She was found to be unresponsive. She was placed flat on the floor and cardiopulmonary Resuscitation (CPR) administered; however, to no avail. She was pronounced dead at 10:24 pm that day.

Yesterday, the ODPP said, in determining whether the conduct rises to the threshold of criminal liability, the issue is whether the actions/inactions of Fearon’s obstetrician or any of the doctors at AMH, Victoria Jubilee Hospital, Spanish Town Hospital or UHWI amounted to manslaughter by way of gross negligence, making one or more individuals criminally liable for the death.

“In the Jodian Fearon matter, our detailed examination showed that, as a matter of law, there was no evidentiary material on file to establish the negligence or incompetence of any doctor, or any other person, went beyond a matter of compensation and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment.”

It said, in light of the clear absence of this most critical element “no useful purpose would be served in respect of a discussion of whether there was sufficient material to ground the other three limbs on which a case of negligence is established by law.

Accordingly, “the ODPP has ruled that no criminal charges are to be laid against [Fearon’s obstetrician] or any of the medical personnel named in the statements” at AMH, Victoria Jubilee Hospital, Spanish Town Hospital, or UHWI. Adding that no useful purpose would be served in remitting this matter to the coroner as a coroner’s jury properly directed in law.

The ODPP said, while note was taken of the public debate on the matter, prosecutors are governed by codes of conduct which are prescribed in case law.

It said protocols such as prosecutor’s protocol and decision to prosecute protocol make it clear “that a recommendation or ruling for a charge to be made for prosecution can only take place where all the elements of the offence have been made out on the available evidentiary material”.

“If the test fails on that first limb, then ethically, and as a matter of law, we cannot go onto a consideration of the second limb; that is, whether it is in the public interest to bring the prosecution,” the ODPP stated.

It, however, said: “It is clear from the material on file that the unease occasioned by the COVID-19 pandemic and the uncertainty surrounding Ms Fearon’s status may have contributed to what appears to be the uncoordinated, indecisive efforts and tardy response by the health institutions/medical personnel in Jamaica’s public health sector or from her personal physician.

“This state of affairs would have exacerbated and blurred the circumstances surrounding Ms Fearon’s untimely demise,” the ODPP said further.

According to the ODPP, the issues surrounding possible breaches of duty of care to Fearon in her interface with either her private physician or the public health institutions would be best answered by a court of law exercising its civil jurisdiction, and would therefore be outside the purview of the ODPP.

“So that we have no other recurrence of this very unfortunate and sad episode, we feel sure that the public interest would benefit, as has been signalled in the public domain from the health authorities, from a review of the protocols of the Ministry of Health’s administrators governing the transfer of patients from private physicians to public health entities, or the transfer of patients form public health institutions to other public health institutions, whether we are in normal times or in the embrace of a pandemic,” the ODPP said.