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The court judgment that could change the treatment of Australian women giving birth
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- [00:05]
A
There was a significant judgment in a Victorian court last week, one that's causing a great deal of controversy in the medical community. The case centres on what happened when a woman presented to a regional hospital to give birth. The woman, Larissa Gawthrop, was in labour, but the hospital refused to admit her until she'd undergone a vaginal examination. For the hospital, this test is routine, but Gorthrop had been really clear in her birth plan she'd only consent to an examination if there was an urgent medical reason. What happened next, according to the court decision, was tantamount to assault, and the judge awarded Gorthrop $275,000 in damages. I'm Michael Bachelard filling in for Samantha Sellinger Morris, and you're listening to the Morning edition from the Age and the Sydney Morning Herald. Today I'm speaking to senior writer Wendy Toohey on the landmark case and the implications for the medical community. It's Tuesday, April 7th. Welcome, Wendy. Before we get into the issues, can we take a step back and can you explain what these examinations are? I guess I'd assume they were standard practice when somebody went into labour.
- [01:18]
B
Well, they are standard policy in some hospitals and are a prerequisite for admission. But there is not an absolute necessity to perform these examinations to demonstrate that labour is established. Established labour involves the cervix being open to a certain point. But established labour can also be demonstrated with other ways, like observing the frequency and intensity of contractions. And guidelines around respectful care state that there should be other ways that can be offered to people who have made it known that their wish is not to have anything other than than medically indicated. Ves. So if staff think there is an issue with the position of the baby or that the heart rate is not where it needs to be and there might be some risk, they can certainly articulate that it would be ideal and important for them in their consideration to perform this exam. But if the woman is not consenting, they shouldn't go ahead with it either way.
- [02:20]
A
And for what kind of reasons might a woman not want this kind of examination to go ahead?
- [02:26]
B
Okay, so many women have had previous trauma in their life, which could be sexual abuse or family violence, or sadly, in many cases, they have had a birth experience in the medical system which has left them with trauma. This is increasingly acknowledged as a very big issue in Australia and elsewhere. The New South Wales government ran a whole inquiry into it and ended up making a global apology to women who had suffered harm. 4000 people made submissions to that about the effect on Their minds and bodies of birth experiences that weren't handled well. So one reason, the primary reason people would wish not to have a non consenting examination of this nature, this intimate nature, is if they have been traumatised and in which case, ideally they would inform their care provider that they have existing issues, trauma from previous life experience, and that unless medically indicated, they would prefer not to have this procedure carried out.
- [03:32]
A
So that brings us, I guess, to the case that you've written about. You've described it as a landmark case and it's that an examination of this kind amounted actually to assault. Tell us what happened in this case and why it's described as a landmark.
- [03:47]
B
Well, what happened was a woman who was in one of these wonderful continuity of midwifery care programs. That is the ideal way to have a birth, which is when you're cared for by the same person all the way along and you get to know them and you form trust with them and they know what you want and expect to happen and you know that they might need to adjust those expectations because you have a relationship going. A woman who was lucky enough to get into one of those programs at Bendigo Health arrived 40 weeks and I think four days pregnant with her waters having broken at home, having contractions and pain, and asked to be admitted to the labour suite to have her continuity of care midwife called. And she was advised that that would not be able to occur. She couldn't be admitted, she couldn't have any pain relief and she wouldn't have a midwife called unless she submitted to this examination. She had previously made a written birth and told the hospital that she was a survivor of family violence abuse as a child and that she had some ongoing issues attached to that trauma. And she had specifically said, and her husband had endorsed this, they'd gone in as a couple with this request that unless medically indicated, they did not want these examinations carried out because of everything I've just mentioned. So she arrived, was told, no, you have to have one. And over two hours she was, I think, offered eight times to have one. She asked many times for interventions such as pain relief or her midwife to be called. And eventually her husband approached the person who was looking after her, who was following hospital policies, mind you, not just being a difficult person, she was following protocols. He said to her, so we won't get pain relief, we won't get admission and we won't get the midwife called unless my wife has this procedure. And they were told that is correct. So she submitted to that and she was distressed, crying in pain and saying, I don't want this, I don't want this. More than once the judgment included all of this detail and she was very distressed by it. The labour was established and then her midwife was called. And subsequently, when this safe person arrived, or her person, she did agree consensually to subsequent of these examinations with this person she knew. And she even agreed to other things that were required that some women might find challenging. But the initial experience of the two hours in which this examination was made a condition of care, of further care. That's what the issue is here. And the judge found in the Supreme Court that she had not given free and voluntary consent. And because of that lack of true consent, it did amount to assault and battery and in fact negligence.
- [06:48]
A
And in terms of hospital policies, is it common for hospitals to have as a policy that you need to have this kind of examination before you can be admitted and go into those other services?
- [07:00]
B
So it is standard policy in many hospitals on admission, but patients have the right to refuse. It's used, as I said, to address dilation and it's a standard way to do so. It does require informed consent, but. And guidelines do often state that these examinations should be kept to a minimum and only done when in medical need. The court in this case heard there was no medical emergency. She didn't. Or the baby did not have a medical emergency. There was no urgent indication. And care providers should offer alternatives if women have discussed it with them. That's what I've been able to ascertain. But it is strongly recommended that you do have this examination if there is a sense the baby's in trouble.
- [07:47]
A
So assault and battery is quite a big set of words. And I guess it brings the idea of consent, free and informed consent into a sort of a medical procedure. Is that the first time that's really happened in the law in Australia?
- [08:04]
B
I would look. I haven't checked every legal precedent, but it's certainly everyone I have called and I have called many medical experts, midwifery academics, the head of Ranskog people. People are saying this is a first and certainly of this. Of this magnitude. She was paid $275,000 in compensation or damages for ongoing psychological impairment. It is seen among all the experts that I have spoken to, including a birth in human rights expert. I've tried very hard to find out if this is significant. It is considered very significant. It's considered a turning point by some. One very senior professor of midwifery said she's aware of women who will now come forward. And many, or pretty much everyone I spoke to said, I've heard of women saying this. Distressing things happened to them before, and others have tried to raise it in a legal way and not got it up. So, yes, it seems to be very much of a line in the sand today.
- [09:07]
A
Well, how's it gone down with the sort of the medical community, with the obstetricians, gynaecologists, the midwives?
- [09:13]
B
Well, not. Well, in some instances. So on the. On the upside, Nisha Kot, who's the president of ranscog, which is a professional organisation for obstetricians, has said, we are not at war with patients. This is. We should always be having respectful care and communication and information flow will adequately, when adequately done, you know, should prevent this sort of friction. But that is a very sensible and diplomatic top line under that, there are many, many doctors leaving comments on an extraordinarily large medical news website called ozdoc, which are skeptical and which are dismissive and are also saying, well, now we're blindfolded. And what happens when these women have problems with their babies? They'll sue us and the hospital, but they'll sue us if we do it either way, where, you know, we're stuffed. So there is some dismay in the medical community, but people like Nishikot are working hard to diffuse that and to say, don't rush to extremes of opinion here. We do have guidelines in place which are stipulating that respectful care is, you know, can be achieved and information flow can be established between patients and doctors. But in short, there is dismay among some.
- [10:36]
A
We'll be right back. Does it set up, in some sense, a dichotomy between safety on one hand and consent on the other? If, you know, in some of these decisions that are happening in a pretty
- [10:53]
B
heated environment, well, hypothetically, that's a possible outcome. When I was reading up before this interview the new Victorian government safer care guidelines, which put a woman's wishes above all else in her maternity care treatment and birth treatment, certainly the indication would be that the woman has the last say, no matter what. However, when I was reading commentary on that in the same article, these instances are very rare where someone will be in a situation and say, I don't want that, and when they've been fully informed that it could have permanent implications for their baby. So I think it seems to be an absolute outlying thing that, from what I can establish, that somebody would choose to not have an intervention knowing that their baby would suffer lifetime harm. However, technically, they have the right.
- [11:48]
A
So, yeah, I had a look at those guidelines as well, and the current policy says that doctors and midwives must support women who refuse medical treatment during pregnancy and childbirth, even if it risks permanently harming their unborn babies. And that under Australian law, a foetus doesn't hold separate legal rights from the mother. So that's the kind of the legal position. But you're saying in practice, given proper, informed news or advice about what may happen as a result of refusing treatment, that most people consent.
- [12:19]
B
That seems to be the impression from my research today. I don't want to make blanket statements here because this is a very. It's an incendiary topic, it's a sensitive topic and it's causing a lot of distress in the community because consent advocates know that this backlash is happening. They've seen it online. So that's why I'm being so careful.
- [12:38]
A
We've heard some stories recently about the free birth movement and people who reject the kind of medical model entirely and some of the dangers around that as well. Do you think, I guess, that a judgement like this, and perhaps an acknowledgement of a trend towards more agency for women in childbirth, is sort of an attempt by the mainstream community, the mainstream obstetricians, gynaecologists and so forth, to say to women, you can still come to us, you can come to us safely. We are aware of the possibility of trauma here.
- [13:13]
B
That's exactly right. So part of the reason these safer care guidelines have been so specific is to reassure women that no matter what they've heard from other women or what happened to their body in their first birth, we now have a framework which guarantees you a large safety net, sort of the knowledge that you will be respected, the knowledge that consent does matter. So it is an attempt to try and reassure people that they don't need to go and have their baby without medical help, which has caused. According to our excellent colleague Henrietta Cook's reporting, there have been 13 recent deaths of babies. And it's because women are frightened of either having what's already happened to them happen again, or of having something they know firsthand from a friend happened to them. Like, women do talk about these things and that there's a lot of awareness now of how people can come out. Well, one in three Australian women who have had a baby have experienced birth trauma, according to, you know, verified research. So it's not just sort of women being difficult or complex patients or just a nuisance. It's based on experience, the people frightened. And now the medical industry is making A massive effort to try and make them feel safe and welcome them back. And that's what these guidelines are about.
- [14:34]
A
Can I ask you, the woman in this case had a birth plan and as you said, the continuity of care plan, what legal weight do birth plans have?
- [14:45]
B
As far as I know, birth plans are still regarded as a nice to have. In this instance, the judge determined that the patient was, quote, led to believe that in her pre birth treatment and care and discussions that her request not to have unnecessary examinations of this kind was achievable. That was his words, that she was led to believe that was achievable. So she went in there believing it was achievable. But that doesn't say, oh, they've broken the law because they didn't address the birth plan. Far as I know, hospitals have to handle massive of contingencies and you absolutely couldn't make somebody's birth plan legally enforceable.
- [15:28]
A
Can I also ask, during the period when this woman Larissa was waiting and refusing this examination and they, they were not calling the midwife and getting her birth underway, during that period, she was offered a sponge as pain relief, is that right?
- [15:44]
B
According to her lawyer, Alistair Lyle, who I spoke to a couple of days ago, she was offered a sponge and he said, I find that appalling that that's what she was offered as pain relief. I have also learned that the hospital didn't have a policy preventing her being offered non opioid pain relief even if she continued to resist an examination. She could have within protocol, been offered non opioid painkiller. But I don't want to get into demonising the staff member who was on duty that time because they were following protocols and to my understanding, they even checked above at a higher level about what they should do and were informed to follow protocols. So it's more the overriding issue that's important here than demonising any particular person who may have been on duty that day, I feel.
- [16:36]
A
And finally, can I ask you, what do the experts that you've spoken to think will happen as a result of this? Do they think there'll be more lawsuits, more people coming forward with these kinds of stories?
- [16:48]
B
Well, one, as I say, one woman quoted in my article, Professor Hannah Dahlan, has said, yes, she, she thinks this will pave the way for others to come forward who have been wanting to, who have felt that they've had these examinations pressed upon them against their consent. It remains to be seen exactly how many people have got the wherewithal to go to the Supreme Court. Because it's a very arduous process, very long process, an incredibly stressful process. I think the more likely outcome will just be that people stop sniffing at the idea of consent. There is scepticism around consent generally because it's been, you know, it's become such a flashpoint in gender relations generally in sexual relationships, and there's a bit of a backlash. But I think now what this case establishes is that consent does matter, and how you get it also matters.
- [17:41]
A
Wendy, it's been fascinating. Thanks so much.
- [17:44]
B
Thank you.
- [17:49]
A
Today's episode was produced by Josh Towers. Our executive producer is Tammy Mills. And our podcasts are overseen by Lisa Muxworthy and Tom McKendrick. And if you like our show, follow the Morning Edition and leave a review for us on Apple or Spotify. Thanks for listening.