Informed Consent to Breech Birth: the Midwifery Relationship In this presentation I will be speaking about the legal requirements of informed consent to both caesarean section and vaginal breech birth. Introduction to who I am and my interest in this area Throughout this part of the presentation, I will be introducing quotes from women in Australia who have had breech presenting babies. Rhonda Powell BA, LLB(Hons), LLM, DPhil Lecturer, UC School of Law

Guiding Principles The woman, her baby and family/whanau are at the centre of all processes and discussions The woman should have continuity of maternity care … regardless of how her care is provided Ministry of Health. 2012. Guidelines for Consultation with Obstetric and Related Medical Services (Wellington 2012) (Referral Guidelines) Some breech mums find themselves between a rock and a hard place: uncomfortable with CS but are either being given no other option OR are concerned that the people available to assist do not have adequate skills and experience supporting VBB Beauty of NZ LMC role is that NZ midwives can help smooth the ride and prevent women feeling that they’ve fallen through the cracks

Consultation for breech LMC must recommend consultation with a specialist Three-way conversation and decision-making The specialist will not automatically assume responsibility for ongoing care Midwife should consider her experience and scope of practice if woman chooses not to transfer care (Referral Guidelines) This relates to both antenatal and intrapartum diagnosis of breech presentation Midwife potentially open to criticism for recommending VBB, especially at home If woman has made an informed choice, this will go a long way towards protecting the midwife against criticism But critical to be very careful to provide balanced information, including information about own skills and experience

Informed consent Code of Health and Disability Services Consumers’ Rights (Code) Right 6: Right to be fully informed Right 7: Right to make an informed choice and give informed consent Includes the right to be told about: all relevant options, including options not offered by the health service the evidence base of information (if any) what most midwives/obstetricians would do skills and experience of midwives/obstetricians how to get a second opinion

No information, No choice “The [obstetrician] for my first breech pregnancy told me that no-one offered [vaginal breech birth (VBB)] or [external cephalic version (ECV)]… because it was not safe for the baby or the mother ... He didn't go into any detail about the risks...” (Adelaide)

The evidence base Term Breech Trial (TBT) (Hannah, 2001) Criticisms of TBT Two-year follow-up to the TBT (Whyte 2004, Hannah 2004) Retrospective reviews (eg Reitburg 2005, Vlemmix 2014) Localised studies (eg Goffinet 2006, Borbolla Foster 2014) Risks of what? Risks to both current pregnancy and future pregnancies Chance of a breech presentation in a future pregnancy Absolute risks rather than relative risks (1 in 100) (see NICE Guideline CG138 ‘Patient Experience in Adult NHS Services’ 1.5.24) Use the following principles when discussing risks and benefits with a patient: personalise risks and benefits as far as possible use absolute risk rather than relative risk (for example, the risk of an event increases from 1 in 1000 to 2 in 1000, rather than the risk of the event doubles) use natural frequency (for example, 10 in 100) rather than a percentage (10%) be consistent in the use of data (for example, use the same denominator when comparing risk: 7 in 100 for one risk and 20 in 100 for another, rather than 1 in 14 and 1 in 5) present a risk over a defined period of time (months or years) if appropriate (for example, if 100 people are treated for 1 year, 10 will experience a given side effect) include both positive and negative framing (for example, treatment will be successful for 97 out of 100 patients and unsuccessful for 3 out of 100 patients) be aware that different people interpret terms such as rare, unusual and common in different ways, and use numerical data if available think about using a mixture of numerical and pictorial formats (for example, numerical rates and pictograms).[1][QS]

Information about breech birth Evidence If the TBT is discussed, then the following should also be discussed: the critique the two year follow up studies other studies how to evaluate studies Risks, Benefits and Options External cephalic version Pre-labour caesarean Vaginal breech birth Caesarean when labour starts Referral elsewhere Clinical Support Availability of experienced clinician Impact this may have on safety When? The earlier the better Undiagnosed breech – variation on same conversation 7

Consent in pregnancy “[A] competent woman … may … chose not to have medical intervention, even though … the consequence may be the death … of the child … or her own death.” Re MB [1997] EWCA Civ 3093 Right to refuse medical treatment protected by: Common law tort of battery – right to sue for nominal damages HDC Code of Rights New Zealand Bill of Rights Act 1990, section 11 (applies to public authorities only) Medical treatment includes assessment and diagnosis

Coercion for breech Not “offering” any alternative to caesarean Hospital policies which make no allowance for refusal of caesarean Misleading information about risks Threatening to withdraw care The reason these issues are potential consent issues is that they may form the basis of an argument that consent was not freely given. These practices could well be in breach of the Code of Rights and lead to disciplinary action

Coercion “The hospital midwives had to transfer me to the OBs who threatened to call child protective services and get a court order to perform a cesarean and then remove my child from my and my husband's care if I didn't "consent" to an elective cesarean...” (USA) In NZ, coercive behaviour like this could lead to disciplinary action or complaints to HDC Could potentially be grounds for civil action for battery (although no damages for personal injury) and exemplary damages

Refusal of consent A competent woman may refuse an ECV, CS, information, consultation or referral Consider own scope of practice or experience if supporting VBB is outside your scope of practice or experience, it is acceptable to withdraw care (prior to labour) if continuing care, duty to care to the best of your ability in the circumstances Document care plan, discussions and response Duty to assist in an emergency (See Part 5, Referral Guidelines)

Working together for breech Code of Rights: 4(5) Every consumer has the right to co-operation among providers to ensure quality and continuity of services

NZ Heath & Disability Commissioner Case 04HDC05503 Woman decided to attempt VBB in hospital Woman disillusioned with medical staff Birth plan specified that decisions be made by woman, husband and midwives Midwives did not inform medical staff that woman in labour seek help when problems arose Baby died Importance of co-operation and communication

Summary Midwives have duties to: provide full and unbiased information about risks and benefits of ECV, VBB or CS recommend consultation Women have rights to: make an informed choice give or refuse consent co-operation amongst providers Midwives should consider own experience and scope of practice in supporting VBB

Training and support Breech Birth Online Workshop (Maggie Banks): http://www.birthspirit.co.nz/breech-birth-online-workshop/ Become A Breech Expert: http://www.also.net.au/amare/babe-course Breech Birth Network: http://breechmidwife.wordpress.com/breech-birth-network/ The Midwife, the Mother and the Breech: http://breechmidwife.wordpress.com/ Breech Birth Australia and New Zealand: www.breechbirth.net and www.facebook.com/groups/breech