1. Consent in Obstetrics
Emma Hanratty BL

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

3. “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

4. 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

5. 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”

6. 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

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

8. 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

9. 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?

10. 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

11. 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

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

13. 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

14. 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

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

16. 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

17. “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?

18. 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 “

19. 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

20. 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

21. “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.”

22. 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

23. 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

24. 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

25. 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

26. “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

27. 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

28. 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

29. 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