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.
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:
- be voluntary and freely given
- come from a competent person
- 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:
- the health carer had a duty of care to provide the information
- that duty was breached by failure to provide the information
- the woman would not have agreed to the procedure/treatment if adequate information had been given
- 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?
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.