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FEATURE – OBSTETRICS & GYNAECOLOGY

Birth plans, intrapartum care and consent...
Proceed with caution!

Associate Professor Paul McGurgan

AMA (WA) Obstetrics & Gynaecology Representative

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Intra-partum care has always been a complex area regarding consent. Most patients have high expectations regarding their birth experience but are frequently in pain and/or physically exhausted when in labour, and interventions may be required.

Intra-partum procedures are usually time-critical, with risk of poor outcomes for both mother and baby; in the public system, these high-stakes interventions are often performed by health professionals the patient has never met previously. It is a perfect recipe for miscommunication, dissatisfaction, distrust… and litigation.1

Source: David Falconer; US National Archives and Records Administration – Public Domain.

The stakes are now even higher following the Supreme Court of Victoria’s landmark decision in Gawthrop v Bendigo Health.2

The case involved Larissa Gawthrop, a first-time mum who understandably stated she ‘want[ed] to have choices about what happens to myself and my body’ when pregnant. Larissa initially considered a home birth, but later decided on a hospital setting as she recognised that ‘birth can sometimes not go so well’; she enrolled in Bendigo Health’s midwifery-caseload service known as Mamta.2

Larissa prepared a four-page birth plan during her pregnancy, in which she and her partner Jono stated their birth preferences. As this was a significant focus in the trial, it is useful to document some of the content.

Our intention is to have a physiological birth … although we understand in the event of special circumstances our plans may change and we will rely on your guidance and expertise, remaining committed to our preferences where possible.

The welfare of our baby is most important to us. We will absolutely accept and discuss advice if urgent or emergency situations arise.

My plan includes important information regarding informed legal consent. We look forward to participating in fully informed discussions, which include the benefits, risks, alternatives and supporting research.

I DECLINE ALL vaginal examinations unless there is an urgent medical reason to do so. Informed verbal consent MUST be given from myself prior. If an urgent medical reason indicates an examination, I DO NOT wish to be informed of my dilation.2

Following her care during labour, Larissa sued for assault, battery and negligence in the Supreme Court of Victoria.

The Court ruled in her favour, awarding Larissa over $275,000 in damages. The Judge found that:

  • performing a vaginal examination without valid consent amounted to assault and battery; and
  • the hospital’s overall care was negligent.

The case is important for health professionals to be aware of, as it provides contemporary perspectives on how the Australian legal system views informed consent, patient-generated ‘Ulysses-type’ contracts, care provision and health service protocols/guidelines.

“The case illustrated some healthcare providers’ predilection to rigidly follow guidelines/protocols and their senior’s advice, along with a ‘box-ticking’ mentality and focus on hospital funding.

Informed consent

The trial focused on Bendigo Health’s Informed Consent Policy which, like most contemporary jurisdictions, rests on the four pillars of capacity, informed decision-making, voluntariness and timeliness. The key issue was coercion. Despite Larissa repeatedly refusing a vaginal examination by the assessment unit midwife, she and her partner were informed she would not be admitted, access the care of the Mamta team, or have adequate analgesia provided unless she complied with a vaginal examination.

It is notable that the Judge found that later intra-partum care provided (vacuum-assisted birth and episiotomy) were adequately consented to. So, caution should be taken in circumstances when patients initially refuse consent; any further interaction with healthcare providers should ensure there is no element of coercion. The case also reinforced the concept that each intimate examination/procedure is a separate consent event.

‘Ulysses-type’ contracts in healthcare

Patient-authored care preference documents, often termed ‘Ulysses-type’ contracts,3 present distinct clinical challenges. Patients may outline care goals or preferences that are clinically difficult to achieve or inadvertently unsafe. Furthermore, a systemic lack of effective cross-team communication often prevents multidisciplinary providers from being aware of, or accessing, these documents during subsequent care.

In the Gawthorp case, the legal status of birth plans was not detailed, but it’s clear the Court expected such patient-led documents to be treated as clinically and legally important. Specifically, Bendigo Health was found to be negligent as it failed to:

  • respect the birth plan;
  • provide adequate information and alternatives to the plaintiff; and
  • conditioned the provision of care options on Ms Gawthrop’s consent to have a vaginal examination.

The trial evidence indicated that Larissa’s birth plan was discussed with her midwives antenatally, and that she was ‘likely to have been reassured that her birth plan and specific preferences in respect of vaginal examinations was “achievable”.’

Her sole obstetric consultation was initiated due to Larissa’s request for a physiological third stage; she subsequently decided to opt for active management when informed about the evidence for increased risk of postpartum haemorrhage. In hindsight, this clinic visit was a missed opportunity for the obstetric team to discuss and address other aspects of Larissa’s birth plan.

“The Gawthrop case has wide implications for all Australian healthcare and health service providers. In maternity care, women’s preferences for care must be the central focus for all their healthcare providers.

‘Box-ticking’ care provision and health service protocols/guidelines

The Judge found that Bendigo Health breached the standard of care defined by its own policies. The trial also highlighted inconsistencies between local and state protocols and guidelines.

The case illustrated some healthcare providers’ predilection to rigidly follow guidelines/protocols and their senior’s advice, along with a ‘box-ticking’ mentality and focus on hospital funding. These types of behaviours were first described by Milgram as a result of his experiments on human obedience as being ‘agentic’; individuals can shift their personal responsibility on to some higher authority, despite awareness that their actions may cause harm to others.4

Closing comments

The Gawthrop case has wide implications for all Australian healthcare and health service providers. In maternity care, women’s preferences for care must be the central focus for all their healthcare providers.

Women with birth plans that may be difficult to achieve, or inadvertently increase risk to them or their baby, deserve timely access to healthcare providers who can provide them with non-coercive, evidence-based information on the advantages and disadvantages associated with their choices, and what implications these may have on their own health and wellbeing and that of their children.

In modern medicine, the treating doctor’s duty to inform a patient is considered to be non-delegable.5 In Australia, up to 58% of first-time mums require obstetric assistance via instrumental or caesarean birth.6

Hence, I believe obstetric care providers and their health services need to ask: Why do we continue to delegate antenatal education and important birth plan discussions almost entirely to our midwifery colleagues?

References available on request.

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