The plaintiff sought damages following her experience at Bendigo hospital where she gave birth. Despite her clear intentions not to undergo any vaginal examinations as outlined in her birth plan, she claimed she had been coerced into giving consent. The Supreme Court of Victoria found that valid consent had not been given and awarded her general damages in the sum of $275,000.
In issue
- The plaintiff made a claim for assault, battery and negligence in the Supreme Court of Victoria, following her experience at Bendigo hospital where she gave birth to her first child. She claimed she had been coerced into giving consent to a number of vaginal examinations despite her clear intentions recorded in her birth plan, not to have any such examinations unless for medical emergencies. Ultimately, the Court found that valid consent had not been given by the plaintiff and awarded general damages of $275,000 for her pain and suffering and loss of enjoyment of life in addition to special damages in the sum of $5,288.55, as agreed by the parties for the plaintiff’s attendances upon a general practitioner and a psychologist.
The background
The plaintiff’s experience of childhood trauma and witnessing her sister giving birth had been instrumental in her decision to have a ‘low intervention birth’, without any vaginal examinations. Vaginal examinations aid medical professionals to determine the progress of the birth and whether the patient is in active labour, however, many women report it is uncomfortable, humiliating and often painful. The plaintiff and her husband chose the ‘Mamta’ program, a midwifery program that aims to provide continuity of care during and immediately after pregnancy and birth, offered by the defendant at Bendigo Hospital. In the antenatal period, the plaintiff prepared a ‘birth plan’ which outlined a number of topics including the plaintiff’s intention to decline all vaginal examinations unless there was an urgent medical reason to do so and that in such a case, informed verbal consent must be given by her prior to the examination.
On the day of the incident, the plaintiff presented to the maternity ward believing she was in active labour and met Ms Debra Alexander, the attending hospital nurse and midwife. It was not in dispute that Ms Alexander was aware of the birth plan and yet regardless, she requested that the plaintiff undergo vaginal examination on a number of occasions.
On one occasion, the plaintiff complained of back pain and sought pain relief, and Ms Alexander considered that a vaginal examination was required prior to any administration of drugs. Ms Alexander further confirmed with the plaintiff’s husband that she would not be calling the plaintiff’s Mamta midwife and that she would not admit the plaintiff to the ward until a vaginal examination had taken place. This was despite the fact that there was not a demonstrated urgent medical reason for performing the examination. Following this conversation, the plaintiff reluctantly agreed to the vaginal examination and Ms Alexander carried out the examination. The plaintiff was then admitted to the hospital, her Mamta midwife was called and she was given pain relief.
The Mamta midwife took over the plaintiff’s care and carried out three further vaginal examinations consented to by the plaintiff. There was another request for a vaginal examination during this time which was declined by the plaintiff. The plaintiff later consented to the vacuum assisted delivery of the baby. Several days after the birth, the plaintiff sent an email to the hospital outlining her experience and providing ‘feedback’.
The decision at trial
The Court found that Ms Alexander’s evidence was often ‘vague and muddled’, and considered that her recollection of events was shaped by her ‘perceived injustice’ and was fundamentally reconstructed. Instead, the Court favoured the plaintiff’s evidence and concluded that she had not freely given consent but felt coerced into doing so. The Court accepted that the plaintiff was visibly distressed during the vaginal examination and as a result, now suffers from anxiety and flashbacks from the incident.
With regards to the issue of consent, the defendant relied on its Informed Consent Policy as the applicable standard of care. The Court found that according to the policy, at the very least consent had to be ‘given voluntarily’, ‘[t]he health professional…must not exert pressure on the patient’ and ‘a genuine choice must be offered’. O’Meara J held that clearly the defendant had breached the standard of care defined by its own policy.
Regarding the issue of causation, the Court concluded that had the defendant accepted the plaintiff’s repeated refusal of vaginal examinations, she would most likely have continued to be cared for by the midwives until pushing commenced, or alternatively, if the issue had been escalated to another senior member of the hospital, the plaintiff’s Mamta midwife would have attended to the plaintiff. As such, if the plaintiff’s wishes had been respected it is most likely that she would have been appropriately cared for and subsequently avoided the consequent psychiatric injury. The Court held that the defendant had failed to provide reasonable care which required that the defendant properly advise the plaintiff of the risk that hospital policies could require the plaintiff to undergo a vaginal examination even when there was no urgent medical reason for such.
The Court found that the subject vaginal examination affected the plaintiff’s family planning as she believed she would not be able to handle another pregnancy and birth despite her desire to create a large family. The Court also noted that the plaintiff’s childhood experiences brought on PTSD, which at that point, was largely in remission. The Court concluded that the plaintiff had been very significantly affected in many important facets of her life and was likely to remain so into the foreseeable future, and awarded $275,000 in general damages.
The plaintiff also claimed aggravated damages for the hospital’s manner in providing her care. However, the Court found that the hospital’s conduct did not meet the threshold of high disregard or malice to warrant aggravated damages and as such they were not awarded.
Implications for you
Valid consent involves providing information to patients in a way they can understand before asking them to make an informed decision. Consent must be freely given and without duress, given by someone who is legally capable of consenting and must specifically cover the procedure to be performed and the rationale for it. Further, it involves understanding the patient’s goals and concerns, a discussion of their options for treatment, the potential outcomes and any applicable risks or benefits.
