The American Judge, Cardozo J famously said in the case in Schloendorff v Society of New York Hospital[1]:
Every human being of adult year and sound mind has a right to determine what shall be done with his own body; a surgeon who performs an operation without his patient’s consent commits an assault.
The principle of consent has been enshrined in Australian law by important judgements such as Hunter and New England Area Health Service & A[2].
The importance of informed consent was looked at in the case of Rogers v Whitaker[3]. It was established that medical practitioners have a duty to warn of material risks that might occur with a course of treatment. In that case, the plaintiff had been blind in her right eye for many years, the ophthalmic surgeon failed to warn her that there was a risk that operating on her blind eye posed a risk to her other eye. This risk eventuated and the plaintiff became blind.
This is the principle of informed consent, the plaintiff in Rogers v Whitaker[4] was not properly informed of all the risks of the procedure. If a person is not properly informed of the risks then it is arguable that they have not consented to the treatment, the provision of the treatment without consent is an assault.
This principle has been modified by the Civil Liability Act (NSW) 2002. While the duty to warn continues to exist, the plaintiff is prevented by the Civil Liability Act[5] from giving evidence that had they known about the risk they would not have had the treatment or procedure.
In most areas of medicine the concept is clearly understood. Medical practitioners will take steps to ensure that a patient understands the risk of a course of treatment prior to embarking upon it. In the arena of childbirth, principles of informed consent are sometimes not adhered to.
Pregnancy and childbirth are unique areas of medicine because both the mother and the medical team have a long period in which to discuss the birth process and the risks involved with the different procedures and interventions. Additionally, both parents often attend antenatal classes, run by a midwife, where different issues about childbirth and infant care are discussed. There are numerous opportunities for the medical team to inform women about the risks of the procedures and interventions, which are frequently used in childbirth.
Many of the interventions used in childbirth pose a significant risk to the health of mother and the baby. It is imperative that if a mother during labour consents to a procedure or an intervention, that she fully understands the risks associated with it. Given the pain levels involved in labour and the need to act quickly and decisively it would be preferable if in depth discussions about the risks associated with the different procedures and interventions, occurred before labour commenced.
In the landmark UK decision of Montgomery v Lanarkshire Health Board[6] the mother gave birth vaginally. The birth was complicated by shoulder dystocia, a very serious complication where the baby’s shoulder gets caught above the mother’s pubic bone. The medical team released the baby but unfortunately the baby was deprived of oxygen and he was later diagnosed with cerebral palsy.
Mrs Montgomery was noted to be a diabetic and small in stature. She had expressed her concerns to her doctor about whether she was capable to delivering the baby vaginally. The doctor did not warn her about the risk of shoulder dystocia, which was a 9-10% chance, nor was an elective caesarean offered.
The Supreme Court held that if Mrs Montgomery had been warned of the risk of shoulder dystocia, she would have chosen to give birth by caesarean section.
Childbirth is fraught with risk and there are many different options and possible procedures and interventions. It is imperative that each woman’s particular risks are discussed with her prior to labour, so that she fully understands the complications associated with the different types of interventions she might face and how those risks can be mitigated. A woman as an adult with a sound mind must be supported to make decisions about her own health, she can only do that if she is given an opportunity to properly consider the risks associated with childbirth.
[1] (1914) 211 NY 125.
[2] (2009) NSWSC 761; (2009) 074 NSWLR 88.
[3] [1992] HCA 58; (1992) 175 CLR 479.
[4] Ibid.
[5] 2002 (NSW).
[6] [2015] UKSC 11.
