Information Giving and the Law

Edited and updated: June 2013

I was writing a blog post on induction for prolonged pregnancy but got side tracked reflecting on a recent study day I attended about law. So, I will get this out of my system before finishing the induction post.

It seems that many health care professionals are routinely putting themselves at risk of legal action in relation to information giving (or not as the case may be). Either they are unaware of the implications, or they think women will never hold them to account. This post is a very brief and basic overview of law (Australian) in relation to information giving. Although I have based the contents on McIlwraith & Madden (2010) the information is available in most law books and on the internet.

Consent

If consent is not gained prior to a procedure it could lead to an action for ‘trespass to the person’ (ie. assault and/or battery). For consent to be valid it must have at least 3 elements:

  1. be voluntary and freely given
  2. come from a competent person
  3. be specific to the treatment/procedure.

The first element is where I think most breaches take place in maternity care situations. In order for this element to be satisfied:

  • the person must not be under any undue influence or coercion
  • there must be no misrepresentation (whether deliberate or mistaken) as to the nature or necessity of a procedure.

I am sure I don’t need to list the common real life scenarios in which this element of consent is not satisfied in relation to maternity care. By the way, to sustain a civil action alleging assault and/or battery harm does not need to caused by the procedure.

Negligence – lack of information

A health care practitioner who fails to provide adequate information to a woman can be sued for negligence. In order to have a successful case the woman must demonstrate that:

  1. the health carer had a duty of care to provide the information
  2. that duty was breached by failure to provide the information
  3. the woman would not have agreed to the procedure/treatment if adequate information had been given
  4. and as a result, the woman or baby suffered harm.

What is reasonable information?

The High Court states that patients should be told of any ‘material risk’ inherent in the treatment. A material risk in relation to maternity is one:

  • to which a reasonable woman in the woman’s condition/situation would be likely to attach significance;
  • to which the health carer knows (or ought to know) the particular woman would be likely to attach significance; or
  • about which questions asked by the woman reveal her concern

What do you think?

Considering the routine use of tests and procedures in maternity care (eg. ultrasound scanning, induction, c-section, etc.) I would be really interested what readers think…

  • Are women coerced by practitioners into tests/procedures?
  • Are practitioners aware of the law, or do they rely on women not knowing the law?
  • Would common practice around information giving change if legal actions were brought against practitioners who fail to adequately inform?

Further resources/reading

Journal articles:

Goldberg, H 2008, ‘Informed decision making in maternity care’, Journal of Perinatal Education, vol. 18, no. 1, pp. 32-40.

Griffith, R 2010, ‘Giving advice and information on risks’, British Journal of Midwifery, vol. 18, no. 4, pp. 262-263.

Marshall, JE, Fraser, DM & Baker, PN 2011, ‘An observational study to explore the power and effect of the labour ward culture on consent to intrapartum procedures’, International Journal of Childbirth, vol. 1, no. 2, pp. 82-99.

O’Cathain, A, Thomas, K, Walters, SJ, Nicholl, J & Kirkham, M 2002, ‘Women’s perceptions of informed choice in maternity care’, Midwifery, vol. 18, pp. 136-144.

Websites/articles

Informed choice, consent & the law: the legalities of “yes I can” and “no I won’t” by Ann Catchlove

Birthrights

Human Rights in Childbirth

 

About midwifethinking

independent midwife, lecturer and student of all things birthy
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44 Responses to Information Giving and the Law

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  3. Anna Robins says:

    Thought provoking post Rachel !! I was watching an education video today re safe blood transfusion practice. A doctor was discussing how he obtained consent for the procedure. He noted that he starts by first establishing a trusting relationship with the patient. Good! What troubled me was what he then when on to say. He said that then he could use this trust to gain the patient’s consent. The patient would ‘trust his learned judgment’ in deciding the need for the procedure and give consent. This is so typical of the way information is presented to women. There is an underlying tone of “I know best” used by professionals. Women trust professionals to make decisions based on what is best for them and their babies. However, what they don’t understand is that often the information given to them is based on what suits policies and protocols and “the system”. I am yet to hear a true representation of what likely path will follow when a woman is offered an induction! AND can a woman in labour truly give informed consent for an epidural??

    • Thanks Anna. We have to careful not to step into coercion when we take on the ‘expert’ role. I am yet to hear sufficient information given for consent to induction… Which is why i got side tracked while writing about it.

  4. Helen says:

    This doesn’t only apply to doctors, of course. How many nurses are aware that they need the consent of a woman before they grab her breast, and her baby’s head, and try to fit them together? Sometimes help is needed, but asking first is good.

    • Absolutely Helen – that’s why I used the term care giver in the post. Midwives fail to gain valid consent frequently like in the example you give. They also often fail to give sufficient information when ‘just breaking the waters’ = if a fetal distress was a result they could get sued for negligence.

    • Lea says:

      This happened to me after the birth of my 2nd son. MW grabbed breast but also grabbed nipple and squeezed trying to get colostrom / milk out for breastfeeding. I had tears streaming down my face is absolute pain. I never let a MW touch my breasts again for breastfeeding or anything now. I persevere myself to get attachment going. Because I was 25 at the time I didn’t know any better to complain at the time. I have since had another baby now 2yrs with one on the way and have a great Doula / MW I trust whole heartedly.

      • I had this done too with my first baby. Not a nice introduction to breastfeeding for mother or baby. And assault and battery legally. I’m pleased you had a better experience the next time.

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  6. infomidwife says:

    Hi Midwifethinking; interesting blog, it is always good to revisit the area of consent and negligence they can be so complex; something I always teach my students is “always ask before you touch” it does not matter what it is, something as simple as taking a BP or assisting a women with breastfeeding, the question I ask is “can I touch your breast?” but the reasonable midwife would use the HOT method and should not be touching the breast? food for thought!
    Since Rogers v Whittaker the issue of how much information is required has been claryfied…. that is what the reasonable midwife would give for the question etc…..

    I always have a quandary about consent when when are in labour and using entonx surely this is questionable also when some one is at the height of contractions (pain) can they be considered rational? again food for thought?
    As for negligence; as you know the 4 principles; do you owe a duty of care; did you breach that duty; was there damage and did you cause the damage? it is very hard to prove negligence…… it has to be really obvious… the main sticking point is causation.

    I am aware of many women being coerced /bullied by practitioners this is a common occurance…the difference is that the women are so vunerable and therefore suspectable to this kind of behaviour and the health practitioner should be advocating for the women….. there is much work that needs to be done on this issue…..
    Midwives need to be giving all the information required for a woman to make an informed choice and then they need to document that they had this discussion and what was said so there is evidence of the information given…… but you see some midwives see this as too much work and take short cuts….. lessons to learn! ask before you touch, give all information about a procedure and then write it down.
    cheers

  7. Jade says:

    Infomidwife: you mentioned the height of a contraction not being a great time for informed consent, I had to tell my brief story, obviously there is a lot more to it but here is the relevant part:

    After almost 25 hours in labour I had used no pain medication, I had asked them not to offer it, they still did, I said no on numerous occassions. At the height of a contraction a midwife said to me ‘I am just going to give you some pethidine”. I grunted, she took that as a yes and before I, my mother or my partner could stop her she had injected me. My son was born approximately 30 minutes later and had some trouble with breathing, so again, while I yelled at them to pass him to me, they cut the poor little guys oxygen supply and took him away from him where they did things that I can only describe as abuse and assualt.

    • Jade – what you describe is abuse and assault. I really hope this is not a recent story. We need to teach midwives about consent. We also need to get information to mothers so that they know that this is wrong.

      • Jade says:

        6 years a go at a major Australian hospital. It goes along way to explaining why i never set foot in the place the next time. I don’t know why I even wen with #1, I am one of 5 kids and 4 of us were born at home, the other was a hospital transfer.

  8. Brit says:

    Argh, this happened to me while in labor with my midwife, who had already prescribed cytotek when i wasn’t even past my due date yet (which I declined). Second day of my contractions she wanted to give me a “little something” to help me sleep, which I declined. Her coercion was “but you’re about to run a 36 mile marathon, and you don’t know how that feels.” To which I declined again. But I asked her what it was, and she replied that it was just a mild sedative. Since I had in fact not slept, I looked at my boyfriend for help deciding (bad move), and he thought I should, so I didn’t press the issue of exactly what it was, and allowed the injection to take place. It did nothing but make me feel like I was tripping, and made me want to vomit. Come to find out that night, by another midwife, that the injection was stadol. Thanks for the informed consent! The story ended in a C-Section, after lots of unnecessary interventions.

  9. Carrie says:

    Only one sentence is needed to prove that women feel coerced. How often do we hear “My Doctor won’t let me ________” from pregnant women?

  10. Sarah Hall says:

    For consent to be valid it must have at least 3 elements:

    1. be voluntary and freely given
    2. come from a competent person
    3. be specific to the treatment/procedure.

    It seems to me this is the reason that if a mother tries to claim #1 was not met, the response is generally that it was unnecessary because she was in labor/delivering/immediately postpartum, therefore #2 could not be met and they “had” to do “as they saw best”.
    (At least, that was the line given after my nightmare)

    • However, if the person is not competent to make the decision the consent is not valid. Only in emergency situations can a health professional do something to someone without their consent. If they can’t consent due to lack of competence/capacity then the procedure can’t be done. It seems that in the cases described here ie. administration of drugs – they weren’t for emergency reasons.

  11. Maggie says:

    Your posts are so informative! I was in an antenatal class recently and the Midwife started on about how great Pitocin is……never mentioned any risks to me or my baby. She made me feel like I was a silly woman for even considering refusing it. I don’t have any problems accepting help when necessary but not just because its routine…..

    Is this legal? Should I complain?

    • Hi Maggie
      The person who is carrying out the procedure or administering the medicine is the person who has to gain consent and provide adequate information. So, this midwife is not acting illegally – just unethically. You should complain because she is misinforming people who are attending her class.

  12. ElElRi says:

    Interesting and nice post.

    I’m in the U.S., not Australia, but I came to you from a link on facebook and this subject is very near and dear to me!

    I am in an online group that focuses on natural/normal birth.

    We all agree that informed consent is not obtained often enough to be concerning in hospitals in the U.S., but I am not sure if legal action would/could be taken when informed consent is not obtained.

    We think if women -must- go to the hospital, they should bring a camcorder/voice recorder and record what the doctors/nurses say .. and also believe that going to the hospital without a doula is actually dangerous.

    I think I’ve read that Australia has higher c/s rates than the U.S. does, so -very- similar things must be going on in the maternity care there.

    That being said, I’ll answer your questions..

    Are women coerced into procedures? Absolutely. Practically the whole group was coerced at one point or another and it led them down the path of home or birth center birthing with midwives for the low risk, or very careful and selective hospital birthing for the higher risk.

    I don’t know if the U.S. laws are the same. I know that it is assault to do something after women say no, and they do – do that, but I think they absolutely believe and count on woman A. not having proof and B. believing it must have been necessary or C. not having the will to take it anywhere if they do have proof and don’t believe it was necessary.. D. thinking that they “cannot win” regardless of the fact that they could, for varying reasons, like having signed a “consent to treat” form at some point. They very much count on this. And, I think they also genuinely believe, in some cases, that “it’s for their own good”, but in the eyes of the law that doesn’t matter! That’s like a rapist or molestor saying “it was for her own good”.

    I DO think common practices would change if legal action were brought against perpetrators enough.

    On a personal note, I was also assaulted in the hospital via threats of surgery, lack of any sort of informed consent for antibiotics, pitocin, magnesium sulfate, an “epidural” (I did not get one), an internal monitor, stitches, and they also actually continued with a couple of vaginal exams after I tried to pull away and told them to stop.. Because I’d signed one of those “consent to treat” forms I was under the impression they didn’t need to get informed consent for the other procedures, but by my charts, they actually should have. I ended up with a nasty infection first, which is when I was threatened, and then after the pitocin, scary high blood pressure (200’s/100’s and up) .. They also tried to get me to consent to an epidural, and told me they were incredibly safe, etc. When the anesthiologist got there, I declined it, and this seemed to irritate them into placing an internal monitor. They just told me things “had to be done”, which in some instances was true, but not for all of it and they should’ve informed me of what antibiotic they were giving me (I am allergic to several), how I would feel on medications, and what were the risks to procedures and medicines. I did end up luckily giving birth vaginally.. To top it off, though, they told me I couldn’t push how I wanted to (this baby was posterior, btw) because of my fever and that I couldn’t breastfeed for two days after giving me the magnesium to lower my blood pressure.. which.. isn’t accurate. I don’t think the last bit is assault but it irked me to no end that I was misinformed in that manner. In my charts, it is marked down that I provided informed consent for all of it.

    I wish I had, had, a voice recorder in that room.

    • I am sorry to read about your abuse at the hands of your ‘care’ providers. It is just shocking but a very common story in the US and over here too. It is sad that women have to consider going to their births armed to gather evidence : (

    • irene says:

      informed consent is usually written, and if it is not written, (besides the consent to treat) then they have to prove that you did give consent. Where I work, all procedures are informed and consented to and written in the charts somewhere, when it happens, even the medications we give; we have a list that the pt signs on admission, stating that we informed them that we may administer medications at some point, and then if and when we do, we review the reason, the type of med, the side effects and effects; and the pt initials next to the specific med we discussed and administered.

  13. Stephanie W. says:

    I know you said this was based on Australian law, but what do you know about this here in the US?

    Here is a short of what happened to me almost 1 year ago (oct. 27th, 2009)

    I went in on the 25th at about 3am, for a terrible headache and elevated BP. After fluids and demorol the headache was gone. They ran tests to see if I had or was getting Pre-e. All were Neg. and my BP was fine when I left, but to be safe the dr. on call sent me home on bed rest with orders to see my dr. first thing Monday morning. I should mention I was 35w 5d at this point. So I went home, monitored my bp all weekend, felt great, no high bp at all. As told, I saw my dr first thing monday. He walked in the room and said ‘well I’ll see you for an induction at 10pm tonight’. I asked why, and he said ‘you have pre-e, and the only cure is to get baby out.’

    I was an inexperienced first time mom who never thought anything like this would happen. I didn’t know what to ask or even say, I was in shock. I was just 36 weeks, I still thought I had a month. So in shock we left. We went for an induction (dr never checked baby’s position, so after 4 nurses couldn’t tell, the did an u/s to check that she was head down). They started pitocin and at only 1 cm the doctor showed up and said ‘I’m going to break your water and get things going, and just did it. He did not ask’ then at about 8:30am they convinced me to get an epidural because the ‘drug doc’ as they called him, was just getting ready to leave, and if i wanted one later, i’d have to wait. So I hesitantly said fine. by 9:30 the doctor had come back telling me my daughter’s heart rate was dropping with contractions and I just wasn’t progressing, so they were going to as he said ‘throw in the towel’ and do a c-section. He did not ask me. This is all he said. I was then handed papers and told to sign them so we could go to the or. There was no rushing. My c/s wasn’t started til after 11am.

    This is the issue. After my birth the doctor was fired– about 3 weeks later. I saw a new dr. and she had no records. Finally the hospital ‘found’ my records, and I asked for them. They were great in going over them with me. It turns out however that I did not have pre-e in the least bit. He documented preg induced hypertension as the reason for induction, and failure to progress as reason for the c/s. nothing about pre-e or heart decels. My daughter was born at 36w 1d and was healthy thank god. Not once in any conversation did he explain any risks of what may happen if she were born 4 weeks early. He just said ‘she’ll be fine’ when I asked if it was too early.

    Is there anything I can do!? I filed a complaint with the State licensing board, and he is under investigation. I did this in March. Because myself and my daughter were not harmed physically (emotionally is a different story) I was told I have no case against him.

    Thanks for this article, and So sorry this got so long!!!!!

    • I am so sorry to read yet another abuse story. I don’t know much about the law in the US and I am certainly not an Australian law expert. However, you agreed to procedures based on false information therefore the consent was not valid = assault and battery. Negligence would be more difficult because it could be argued considering the huge rate of c-sections that you could have ended up with one anyway at full term. There definitely was harm done but to prove it was directly related to his breach of standards might be difficult (even though it was). You could seek legal advice.

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  15. Jane says:

    But backsides get covered in the notes. I have yet to hear of a woman at our local hospital (Bedford – Cygnet Wing) whose notes actually reflect what happened.

    My waters were broken during a coerced (in tears cos I didn’t want it) VE… notes state that I requested ARM. Case to the NMC for assault and battery (for being held down, having stirrups wrapped around ankles because I refused them and a catalogue of other nightmares, complete with witnesses) ended with the NMC saying that my delivery was an “emergency” (which it most certainly wasn’t) and that the MWs concerned had written to them – they (NMC) were unable to show me the contents of the letter, but if I found anything that I could prove untrue in it then I was of course, welcome to write in and refute it… the police refused to act on the grounds that “it isn’t assault if it’s in hospital”.

    Spot the other side of the problem? Quality of info given and actions taken won’t improve until certain “caregivers” are pulled up on it. And they wont be as long as this goes on. The UK NMC needs a kick up the backside, they appear to be there to rubber stamp poor practice.

    • I agree re. notes. They rarely reflect what actually happened and are used to cover backsides. You are also right that nothing will improve until caregivers are pulled up. Care givers will only be pulled up when the organisations are threatened (financially). Civil actions for assault and battery, or negligence might force hospitals to deal with the issues. Unfortunately not many new mothers have the money or energy to pursue a case. Apparently here in Queensland there is about to be a civil case heard where a mother is seeking damages for being cohersed into an unnecessary c-section by a mw and obs. Her consent was not valid because they gave false information = assault and battery. I really hope this will hit the media and make people think.
      I am sorry that you were abused and are being blocked from getting justice : (
      I hope you are getting support to deal with the damage inflicted.

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  17. JuB says:

    As a midwife it is very hard to always know that your actions (which are with the woman’s consent) are going to be the correct ones, all you can do is to be informed, be well researched, and do your best with the information you have, this may be information you have been given by woman. Contemporaneous records are vital, documentation is important for both woman and midwife. Birth is a journey of the unknown, so often I wish I had a crystal ball. HIndsight is a wonderful thing and it is easy to be critical of care, to pick holes in it. If a woman is informed and empowered I believe she is a happier and more confident woman in respect to the care she receives.

    With regards to informed consent, yes of course it MUST be informed consent, in a language the woman understands, in a format she is coherent with. There is often so much information to be given and some of it is given in booklets or leaflets. I am sure a lot of these go unread. There is an information over load. It is my belief we give too much information. However, with regards to the way women are given choice, I believe in the UK obstetrics has moved towards transparency and openness. Obstetricians and midwives do give choice to women. They of course recommend actions or pathways of care. The woman can choose not to take the advice, it is her body and her fetus or baby. She must also take responsibility for her actions. All a health professional can do is to guide and advise, recommend and educate.

    It is assault for a woman to be touched without her permission. It is also not necessary ever to handle a woman’s breast when helping someone to breast feed, in fact it is disempowering and harmful. Women have to learn how to breast feed their baby with guidance and information. Not by having their breasts handled and baby being rammed onto their breast.

  18. Larissa McCarthy says:

    I just wanted to quickly leave a bit of my story…
    At 18 i found myself 42weeks pregnant and in labor in hospital. I had had my waters broken “accidentally” by a doctor who i overheard telling some nurses she had to be home by dinner to see her kids, it was christmas day. I was then strapped against my will to the bed with 2 ctg monitors. My mum kept helping me off the bed so i could walk and be upright. I was constantly reprimanded by the nurses when they found me. A few hours later i was asking to push, noone believed me and even after i said no numerous times was given pethidine, without being checked as to my dialation. Within 20-30seconds my babys heart stopped and i was rushed into theatre, via a corridoor where visitors for other women were, i was completley naked. I was forced under kicking and screaming. I bit one nurse who was forcing my chin to the table causing him to bleed. Aprox 3hours later i finally awoke to see my baby screaming in the cot next to my bed in recovery. I spent 6weeks in hospital, my baby was completley fine however i had major complications, infections, subsequent surgerys etc etc etc due to the crash cser.
    I also felt humilated when a nurse would walk into my room, without asking or me giving consent, pull my blankets back, leaving my exposed and check on my bleeding. I now have PND and PTSD. I have since had another baby, with different but similar unnessecary results.
    I am now researching my heart out, finding all the info i can on VBA2C’s and homebirths. I am petrified to walk into another hospital.

  19. Tupps says:

    I had a traumatic birth experience last year and am collecting my medical notes from the post office tomorrow. I’m wondering if you might be able to put me in contact with a midwife who could help with advice on normal/acceptable/standard medical procedures, particularly in relation to internal podalic versions and foetal distress. I’m considering taking action against the doctors involved and would like to have a solid background understanding so I can’t be fobbed off with “scary doctor talk” about what would have happened if they hadn’t done what they did. Google is helpful but questionable as to reliability!!

    • I’m not sure where you are… I suggest contacting a local midwife who can meet with you face to face and look at your medical notes and explore the whole situation. I am sorry that you are having to go through this.

  20. justanotheramy says:

    My obstetrician told me that I would “need” induction if I was 7-10 weeks “late”, and that while legally I could refuse, my refusal would increase the likelihood of stillbirth, “and you don’t want that, do you?”. I don’t know how her other patients respond to this formulation, but I have a discourse analysis background, and know a threat when I hear one (“do as you’re told or the baby will die and it will be your fault”). I don’t respond well to threats. She also told me that “30% of women need a cesarean”.
    The sad part of it is that I think she really does mean well, and sincerely believes that she does everything possible to avoid intervention. And yet…

    Needless to say, I am now (at 32 weeks) trying to find out if I’ve left it too late to jump ship and book with a midwife.

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  22. Biljana says:

    Dear Rachel,
    How can I prove that I didn`t consent to the procedure? It`s my word against theirs

    • To some extent it is their word against your’s unless you have a witness. However, they should have documented and discussion – what was said – and the fact that they gained consent.

  23. Kristin goodrich says:

    I am very glad to have found this post. As a first time mom heading into labor, my biggest fear has nothing to do with the actual birth of my baby, but the fear of coersion and violation by medical staff. I am arming myself with knowledge of possibilities, talking openly with my midwife, but still occasionally get the response, “we can’t decide until it is in the moment,” which translates to me as “I’ll do what I think is best if it happens,” instead of truly listening to my and my husbands preferences. Our wants and desires are still valid- even in a time sensitive situation. Hence why I want to talk about it with you now, instead of “if it happens.” Too many times medical professionals dismiss child birthing women, ignore consent, & in my opinion assault them and their babies needlessly. Respect needs to be brought back into maternity care.

    • Pregnancy is an ideal time to discuss the ‘what ifs’ and what you would want in the event of x or y. It means that if something unplanned happens, you have already discussed your wishes so gaining consent is a lot quicker. From the midwife’s perspective it is important that women know when previously agreed care might change. For example, I always discuss PPH and what my ‘usual’ response would be and how this may impact on previous plans and whether this would be OK… and I agree ‘we’ do consent and respect very badly in maternity care.

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