Consent in Obstetrics Emma Hanratty BL

Introduction What procedures/interventions are relevant? Documenting consent When to obtain consent? Birth options Birth plans

“Routine” birth Artificial rupture of membranes (ARM) Pain relief – etonox, pethidine, epidural Oxytocin Vaginal examination Foetel blood sample Episiotomy Vacuum/Ventouse Forceps Antibiotics Fetal scalp monitoring Syntometrine Vitamin K

Hamilton v HSE [2014] IEHC 393 Artificial Rupture of Membranes Had Mrs. Hamilton consented? She claimed consent to vaginal examination only Midwife – consent to ARM

Hamilton v HSE (contd) No note of consent Oral testimony only “Midwife Kelliher is highly qualified and experienced. She has held responsible positions in the UK and here she is the senior midwife in the hospital. She impressed me as a careful and expert nurse.” Re Plaintiff: “The failure to mention it to any of the doctors does seem to raise a large question mark about the accuracy of this recollection”

Written consent/note of consent Written consent preferable i.e. signature More minor/routine procedures oral consent with a note confirming consent had been obtained O’Sullivan v Kiernan and Bon Secours Health Systems Limited [2004] IEHC 78 “A single short sentence was all that was required” Avoid relying purely on oral testimony – risks re recollection, who’s evidence the judge prefers etc

When should you obtain consent? Can a woman in labour consent to treatment?!!!!

Fitzpatrick v Whyte Elective surgery Consent on the day Patient: Not unduly stressed Not anxious Not in pain Clear and lucid mental state Well capable of making a decision

Patient in labour Frequent, painful contractions Lack of sleep No time to think about the information Could a woman contend consent was not properly obtained?

Epidural analgesia Epidural Analgesia for labour: Maternal Knowledge, Preferences and Informed Consent 79% believed that discomfort during labour affected their ability to provide informed consent Less than 30% were aware of the most common complications Reasonable patient: all potential complications 96% believed consent should be taken prior to the onset of labour

Epidural analgesia (contd) Anaesthesia department of Mid-western Regional Hospital in Limerick 2014 Looked at practice across 16 Irish maternity units In half, serious risks not discussed Standardised national information leaflet

Provide information – leaflet or otherwise Discussion - meeting with anaesthetist Not just epidurals - obtain consent for the most common obstetric interventions at ante-natal appointments

Birth options More than one treatment option No room for medical paternalism Patient needs to be included in the decision Provide all of the information and advise s

Examples Induction v spontaneous onset of labour Induction v Caesarean section Instrumental v Caesarean section Natural birth v Caesarean section VBAC v Caesarean section Episiotomy v natural tearing Assisted third stage v natural third stage

Montgomery v Lanarkshire Health Board [2015]UKSC 11 Diabetic – increased chance of macrosomia Small stature Voiced concerns Consultant did not discuss risks

Duty to disclose: Re Materiality: Material risk of treatment Alternative options and risks of alternative options Re Materiality: A reasonable person in the patient’s position would attach significance to the risk OR Doctor is or should reasonably be aware that the particular patient would be likely to attached significance to it

“The doctor’s advisory role involves dialogue the aims of which is to ensure that the patient understands the seriousness of her condition and the anticipated benefits and risks of the proposed treatment and any reasonable alternatives. “ Duty extends to ensuring comprehension Again, can this be achieved during labour?

What is relevant to decision? “The patient’s entitlement to decide on whether or not to incur that risk…does not depend exclusively on medical considerations” “The relative importance attached to patients to quality against length of life, or to physical appearance or bodily integrity as against relief of pain, will vary from one patient to another….The doctor cannot form an objective, “medical” view of these matters and is therefore not in a position to take the “right” decision as a matter of clinical judgement.” Other factors a patient may consider relevant eg other small children to mind, birth preferences, previous birth experience etc Entitled to factor them in when making decision “

Lady Hale Sufficient information to consider pros and cons of each option “not necessarily to say that the doctors have to volunteer the pros and cons of each option in every case, but they clearly should do so in any case where either the mother or the child is at heightened risk from vaginal delivery.” includes the risk of potential after affects of giving birth which the mother might suffer

Decision to have elective section Doctor: “it’s not in the maternal interests for women to have caesarean sections” Not a purely medical judgment but “a judgment that vaginal delivery is in some way morally preferable to a caesarean section; so much so that it justifies depriving the pregnant woman of the information needed for her to make a free choice in the matter” [emphasis added] Doctor cannot decide to withold information due to what option they think the patient should choose

“a patient is entitled to take into account her own values, her own assessment of the comparative merits of giving birth the “natural” and traditional way and of giving birth by caesarean section, whatever medical opinion may say, alongside the medical evaluation of the risks to herself and her baby…The medical profession must respect her choice, unless she lacks the capacity to decide.” [emphasis added]. “no doubt [the mother] would take serious account of her doctor’s estimation of the likelihood of these risks emerging in her case.”

Middleton v Ipswich Hospital NHS Trust [2015] EWHC 775 (QB) 1st delivery – long and painful – ventouse 2nd delivery “a moderate degree of shoulder dystocia” 3rd delivery – shoulder dystocia and Erb’s Palsy

Defence admitted should have been a discussion with mother re mode of delivery prior to labour as a result of previous shoulder dystocia Denied she would have elected to have a caesarean section Expert evidence - able to pursuade patients not to elect for Caesarean section Most patients do not

Mother’s evidence – would have wanted to avoid a traumatic delivery like delivery of first son at all costs Would not have run even a small risk of having disabled child would have preferred for the risks of any injury to be to her rather than to her baby Key thing for her was not the size of the risk but the identification of a risk

Decision “What this court is concerned with is what these particular parents would have done in the circumstances of this case” Very careful and thoughtful parents “patently honest witnesses” Father’s evidence as to traumatic nature of delivery of first child Impressed by mother’s evidence re her approach to risk

“would not have been influenced by statistics but would have put the wellbeing of her baby ahead of herself and elected and if necessary pushed for caesarean section rather than run the risk of a Jak-type birth and that that would have been the mode of Finlay’s birth” Factors personal to the patient – previous birth, risk irrelevant of size of risk, etc Importance of dislosing anything that may affect future deliveries – open disclosure of “near miss” events

Birth plans “it has become far easier and far more common for members of the public to obtain information about symptoms, investigations, treatment options, risks and side-effects via such media as the internet, patient support groups, and leaflets issued by healthcare institutions.” See them as a tool Discuss risks of refusing treatment  

Conclusion Properly document all consent discussions Obtain consent before labour where possible Provide the information Ensure the patient understands the information Advise but allow the patient to make their own decision

Gone are the days when it was thought that, on becoming pregnant, a woman lost, not only her capacity, but also her right to act as a genuinely autonomous human being. Thank you! Emma Hanratty BL ehanratty@lawlibrary.ie 0879892140