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The court judgment that could change the treatment of Australian women giving birth · The Morning Edition

0:04
S1: There was a significant judgment in a Victorian court last week,
0:08
S1: one that's causing a great deal of controversy in the
0:10
S1: medical community. The case centers on what happened when a
0:14
S1: woman presented to a regional hospital to give birth. The woman,
0:18
S1: Larissa Gawthrop, was in labor, but the hospital refused to
0:21
S1: admit her until she had undergone a vaginal examination. For
0:25
S1: the hospital, this test is routine, but Gawthrop had been
0:29
S1: really clear in her birth plan. She'd only consent to
0:32
S1: an examination if there was an urgent medical reason. What
0:36
S1: happened next, according to the court decision, was tantamount to assault,
0:40
S1: and the judge awarded Gawthrop $275,000 in damages. I'm Michael
0:46
S1: Bachelard filling in for Samantha Salinger Morris, and you're listening
0:51
S1: to Morning Edition from the age and The Sydney Morning Herald. Today,
0:55
S1: I'm speaking to senior writer Wendy Toohey on the landmark
0:59
S1: case and the implications for the medical community. It's Tuesday,
1:04
S1: April the 7th. Welcome, Wendy. Before we get into the issues,
1:09
S1: can we take a step back and can you explain
1:12
S1: what these examinations are? I guess I'd assume they were
1:15
S1: standard practice when somebody went into labor.
1:18
S2: Well, they are standard policy in some hospitals and a
1:21
S2: prerequisite for admission, but there is not an absolute necessity
1:25
S2: to perform these examinations to demonstrate that labor is established.
1:30
S2: Established labor involves the cervix being open to a certain point,
1:34
S2: but established labor can also be demonstrated with other ways,
1:38
S2: like observing the frequency and intensity of contractions and guidelines
1:43
S2: around respectful care. State that there. There should be other
1:46
S2: ways that can be offered to. People who have made
1:49
S2: it known that their wish is not to have anything
1:51
S2: other than medically indicated V ease. So if staff think
1:57
S2: there is a an issue with the position of the baby,
2:00
S2: or that the heart rate is not where it needs
2:03
S2: to be and there might be some risk. They can
2:06
S2: certainly articulate that it would be ideal and important for
2:10
S2: them in their consideration to to perform this exam. But
2:13
S2: if the woman is not consenting, they shouldn't go ahead
2:17
S2: with it either way.
2:19
S1: And for what kind of reasons might a woman not
2:23
S1: want this kind of examination to go ahead?
2:25
S2: Okay. So many women have had previous trauma in their life,
2:31
S2: which could be sexual abuse or family violence, or, sadly,
2:36
S2: in many cases, they have had a birth experience in
2:40
S2: the medical system which has left them with trauma. This
2:44
S2: is increasingly acknowledged as a very big issue in Australia
2:48
S2: and elsewhere. The New South Wales government ran a whole
2:51
S2: inquiry into it, and ended up making a global apology
2:55
S2: to women who had suffered harm. 4000 people made submissions
2:58
S2: to that about the effect on their minds and bodies
3:01
S2: of birth experiences that weren't handled well. So one reason
3:07
S2: the primary reason people would wish not to have a
3:10
S2: non-consenting examination of this nature, this intimate nature, is if
3:14
S2: they have been traumatized, and in which case, ideally, they
3:18
S2: would inform their care provider that they have existing issues
3:22
S2: trauma from previous life experience, and that unless medically indicated,
3:28
S2: they would prefer not to have this procedure carried out.
3:31
S1: So that brings us, I guess, to the case that
3:33
S1: you've written about. You described it as a landmark case,
3:37
S1: and it's that an examination of this kind amounted actually
3:41
S1: to assault. Tell us what happened in this case and
3:44
S1: why it's described as a landmark.
3:46
S2: Well, what happened was a woman who was in one
3:50
S2: of these wonderful continuity of midwifery care programs, that is
3:54
S2: the ideal way to have a birth, which is when
3:58
S2: you're cared for by the same person all the way
4:00
S2: along and you get to know them and you form
4:02
S2: trust with them and they know what you want and,
4:05
S2: and expect to happen. And, and you know, that they
4:08
S2: might need to adjust those expectations because you have a
4:10
S2: relationship going. A woman who was lucky enough to get
4:13
S2: into one of those programs at Bendigo Health arrived 40
4:18
S2: weeks and I think four days pregnant with her waters,
4:22
S2: having broken at home, having contractions and pain and asked
4:26
S2: to be admitted to the labor suite and to have
4:28
S2: her continuity of care. Midwife called and she was advised
4:33
S2: that that would not be able to occur. She couldn't
4:35
S2: be admitted, she couldn't have any pain relief, and she
4:38
S2: wouldn't have a midwife called unless she submitted to this examination.
4:45
S2: She had previously made a written birth plan and told
4:49
S2: the hospital that she was a survivor of family violence
4:53
S2: abuse as a child, and that she had some ongoing
4:55
S2: issues attached to that trauma. And she had specifically said
5:00
S2: and her husband had endorsed this. They'd gone in as
5:02
S2: a as a couple with this request that unless medically indicated,
5:06
S2: they did not want these examinations carried out because of
5:11
S2: everything I've just mentioned. So she arrived, was told, no,
5:14
S2: you have to have one. And over two hours she was,
5:16
S2: I think, offered eight times to have one. She was
5:20
S2: she asked many times for interventions such as pain relief
5:24
S2: or her midwife to be called. And eventually her husband
5:28
S2: approached the person who was looking after her, who was
5:31
S2: following hospital policies. Mind you, not just being a difficult person,
5:35
S2: she was following protocols, he said to her. So we
5:38
S2: won't get pain relief, we won't get admission and we
5:40
S2: won't get the midwife called unless my wife has this procedure.
5:44
S2: And they were told that is correct. So she submitted
5:48
S2: to that and she was distressed, crying in pain and saying,
5:53
S2: I don't want this. I don't want this. More than once.
5:55
S2: The judgment included all of this detail and she was
5:59
S2: very distressed by it. The labour was established and then
6:02
S2: her midwife was called and subsequently when this safe person
6:06
S2: arrived or her person, um, she did agree consensually to
6:11
S2: subsequent of these examinations with this person she knew, and
6:14
S2: she even agreed to other things that were required that
6:18
S2: some women might find challenging. But the initial experience of
6:22
S2: the two hours in which this examination was made, a
6:25
S2: condition of care of further care, that's what the issue
6:29
S2: is here. And the judge found she in the Supreme
6:32
S2: Court that she had not given free and voluntary consent.
6:36
S2: And because of that lack of true consent, it did
6:39
S2: amount to assault and battery and in fact, negligence.
6:47
S1: And in terms of hospital policies, is it common for
6:51
S1: hospitals to have as a policy that you need to
6:54
S1: have this kind of examination before you can be admitted
6:56
S1: and go into those other services?
6:59
S2: So it is standard policy in many hospitals on admission,
7:03
S2: but patients have the right to refuse. It's used, as
7:07
S2: I said, to, to address dilation and as it's a
7:10
S2: standard way to do so. It does require informed consent,
7:15
S2: and guidelines do often state that these examinations should be
7:19
S2: kept to a minimum and only done when in medical need.
7:22
S2: The court in this case heard there was no medical emergency.
7:25
S2: She didn't or the baby did not have a medical emergency.
7:29
S2: There was no urgent indication and care providers should offer
7:34
S2: alternatives if women have discussed it with them. That's what
7:37
S2: I've been able to ascertain. But it is strongly recommended
7:40
S2: that you do have this examination. If there is a
7:44
S2: sense the baby's in trouble.
7:47
S1: So assault and battery is quite a big set of words,
7:50
S1: and I guess it brings the idea of consent free
7:55
S1: and informed consent into a sort of a medical procedure.
7:59
S1: Is that the first time that's that's really happened in
8:02
S1: the law in Australia?
8:03
S2: I would look I haven't checked every legal precedent, but
8:08
S2: it's certainly everyone I have called and I have called
8:11
S2: many medical experts, midwifery academics, the head of Ranzcog. People
8:15
S2: are saying this is a first and certainly of this
8:19
S2: of this magnitude. She was paid $275,000 in compensation or
8:24
S2: damages for ongoing psychological impairment. It is seen among all
8:30
S2: the experts that I have spoken to, including a berth
8:33
S2: in human rights expert. I've tried very hard to find
8:36
S2: out if this is significant. It is considered very significant.
8:40
S2: It's considered a turning point by some one very senior
8:44
S2: professor of midwifery said she's aware of other women who
8:47
S2: now come forward, and many, pretty much everyone I spoke
8:51
S2: to said, I've heard of women saying this distressing things
8:55
S2: happened to them before, and others have tried to raise
8:58
S2: it in a legal way and not got it up.
9:01
S2: So yes, it seems to be very much of a
9:04
S2: line in the sand today.
9:06
S1: Well, how has it gone down with sort of the
9:08
S1: medical community, with the. Obstetricians, gynecologists, the midwives?
9:13
S2: Well, not well in some instances. So. On the on
9:17
S2: the upside. Nishikawa, who's the president of Ranzcog, which is
9:20
S2: a professional organization for obstetricians, has said we are not
9:24
S2: at war with patients. This is. We should always be.
9:27
S2: Having respectful care and communication and information flow will adequately.
9:33
S2: When adequately done, you know, should should prevent this sort
9:36
S2: of friction. But that is a very sensible and diplomatic
9:41
S2: top line. Under that, there are many, many doctors leaving
9:45
S2: comments on an extraordinarily large medical news website called Osdc,
9:50
S2: which are skeptical and which are dismissive and are also saying, well,
9:55
S2: now we're blindfolded. And what happens when these women have
9:59
S2: problems with their babies? They'll sue us and the hospital,
10:02
S2: but they'll sue us if we do it. Either way,
10:04
S2: we're you know, we're stuffed. So there is some dismay
10:07
S2: in the medical community, but people like Nisha are working
10:11
S2: hard to defuse that and to say, don't rush to
10:14
S2: extremes of opinion here. We do have guidelines in place
10:18
S2: which are stipulating that respectful care is, you know, can
10:21
S2: be achieved and information flow can be established between patients
10:25
S2: and doctors. But in short, there is dismay among some.
10:35
S1: We'll be right back. Does it set up in some sense,
10:44
S1: a dichotomy between safety on one hand and consent on
10:48
S1: the other? If you know, in some of these decisions
10:51
S1: that are happening in a pretty heated environment.
10:54
S2: Well, hypothetically, that's a possible outcome. When I was reading
11:01
S2: up before this interview, the new Victorian government's Safer Care guidelines,
11:05
S2: which put a woman's wishes above all else in her
11:08
S2: maternity care treatment and birth treatment. Certainly, the indication would
11:13
S2: be that the woman has the last say no matter what. However,
11:17
S2: when I was reading commentary on that in the same article,
11:20
S2: these instances are very rare where someone will be in
11:23
S2: a situation and say, I don't want that. And when
11:25
S2: they've been fully informed that it could have permanent implications
11:28
S2: for their baby. So I think it's it seems to
11:33
S2: be an absolute outlying thing that that from what I
11:36
S2: can establish that somebody would choose to not have an
11:40
S2: intervention knowing that their baby would suffer lifetime harm. However,
11:45
S2: technically they have the right.
11:47
S1: So yeah, I had a look at those guidelines as well.
11:50
S1: And the current policy says that doctors and midwives must
11:52
S1: support women who refuse medical treatment during pregnancy and childbirth,
11:57
S1: even if it risks permanently harming their unborn babies, and
12:00
S1: that under Australian law, a fetus doesn't hold separate legal
12:04
S1: rights from the mother. So that's the kind of the
12:06
S1: legal position. But you're saying in practice, given proper, informed
12:12
S1: news or advice about what may happen as a result
12:15
S1: of refusing treatment that most people consent?
12:19
S2: That seems to be the impression from my research today.
12:21
S2: I don't want to make blanket statements here because this
12:23
S2: is a very it's an incendiary topic. It's a sensitive topic,
12:27
S2: and it's causing a lot of distress in the community
12:30
S2: because consent advocates know that this backlash is happening. They've
12:34
S2: seen it online. So that's why I'm being so careful.
12:38
S1: We've had some stories recently about the free birth movement
12:41
S1: and people who reject the kind of medical model entirely,
12:44
S1: and some of the dangers around that as well. Do
12:48
S1: you think, I guess, that a judgment like this, and
12:51
S1: perhaps an acknowledgement of a trend towards more agency for
12:55
S1: women in childbirth, is sort of an attempt by the
12:59
S1: mainstream community, the mainstream obstetricians, gynecologists and so forth to
13:05
S1: say to women, you can still come to us. You
13:08
S1: can come to us safely. We are aware of the
13:11
S1: possibility of trauma here.
13:12
S2: That's exactly right. So part of the reason these safe
13:16
S2: care guidelines have been so specific is to reassure women
13:20
S2: that no matter what they've heard from other women or
13:23
S2: what happened to their body in their first birth, we
13:27
S2: now have a framework which guarantees you a large safety net.
13:31
S2: Sort of the knowledge that you will be respected, the
13:34
S2: knowledge that consent does matter. So it is an attempt
13:38
S2: to try and reassure people that they don't need to
13:41
S2: go and have their baby without medical help, which has caused,
13:46
S2: according to our excellent colleague Henrietta Cooke's reporting, there have
13:49
S2: been 13 recent deaths of babies. And it's because women
13:53
S2: are frightened of either having what's already happened to them,
13:57
S2: happen again, or of having something they know firsthand from
14:01
S2: a friend happen to them like women do talk about
14:03
S2: these things, and that there's a lot of awareness now of,
14:07
S2: of how people can come out or one in 1
14:09
S2: in 3 Australian women who have had a baby have
14:13
S2: experienced birth trauma, according to, you know, verified research. So
14:17
S2: it's not just sort of women being difficult or complex
14:21
S2: patients or just a nuisance, it's based on experience. The
14:25
S2: people are frightened. And now the medical industry is making
14:28
S2: a massive effort to try and make them feel safe
14:30
S2: and welcome them back. And that's what these guidelines are about.
14:34
S1: Can I ask you, the woman in this case had
14:36
S1: a birth plan. And as you said, that continuity of
14:39
S1: care plan, what legal weight do birth plans have?
14:45
S2: As far as I know, birth plans are still regarded
14:48
S2: as a nice to have. In this instance, the judge
14:52
S2: determined that the patient was, quote led to believe that
14:57
S2: in her pre-birth treatment and care and discussions that her
15:02
S2: request not to have unnecessary examinations of this kind was achievable.
15:07
S2: That was his words that she was led to believe
15:10
S2: that was achievable. So she went in there believing it
15:13
S2: was achievable. But that doesn't say, oh, they've broken the
15:16
S2: law because they didn't address the birth plan. As far
15:18
S2: as I know, hospitals have to handle massive contingencies. And
15:22
S2: you absolutely couldn't make somebody's birth plan legally enforceable.
15:27
S1: Can I also ask, during the period when this woman, Larissa,
15:31
S1: was waiting and refusing this examination, and they they were
15:35
S1: not calling the midwife and getting her birth underway. During
15:38
S1: that period, she was offered a sponge as pain relief.
15:42
S1: Is that right?
15:43
S2: According to her lawyer, Alastair Lyall, who I spoke to
15:46
S2: a couple of days ago, she was offered a sponge
15:49
S2: and he said, I find that appalling, that that's what
15:51
S2: she was offered as pain relief. I have also learned
15:55
S2: that the hospital didn't have a policy preventing her being offered.
15:59
S2: Non-opioid pain relief had. Even if she continued to resist
16:06
S2: an examination, she could have within protocol been offered Non-opioid painkiller,
16:12
S2: but I don't want to get into demonizing the staff
16:15
S2: member who was on duty at that time because they
16:19
S2: were following protocols. And to my understanding, they even checked
16:22
S2: above at a higher level about what they should do
16:25
S2: and were informed to follow protocol. So it's more the
16:28
S2: overriding issue that's important here than than demonizing any particular
16:33
S2: person who may have been on duty that day, I feel.
16:36
S1: And finally, can I ask you, what do the experts
16:39
S1: that you've spoken to think will happen as a result
16:42
S1: of this? Do they think there'll be more lawsuits, more
16:45
S1: people coming forward with these kinds of stories?
16:48
S2: Well, one, as I say, one woman quoted in my article,
16:52
S2: Professor Hannah Dahlen, has said, yes, she she thinks this
16:55
S2: will pave the way for others to come forward who
16:57
S2: have been wanting to who have felt that they've had
16:59
S2: these examinations pressed upon them against their consent. It remains
17:03
S2: to be seen exactly how many people have got the
17:06
S2: wherewithal to go to the Supreme Court, because it's a
17:09
S2: very arduous process, very long process and incredibly stressful process.
17:14
S2: I think the more likely outcome will just be that
17:17
S2: people stop sniffing at the idea of consent. There is
17:20
S2: skepticism around consent generally because it's been, you know, it's
17:25
S2: become such a flashpoint in gender relations generally in sexual relationships.
17:30
S2: And there's a bit of a backlash, but I think
17:32
S2: now what this case establishes is that consent does matter.
17:36
S2: And how you get it also matters.
17:40
S1: Wendy, it's been fascinating. Thanks so much.
17:43
S2: Thank you.
17:48
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17:53
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17:56
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