BREECH BIRTH: CONSUMERS,

CHOICE AND CONSENT

Ann Catchlove BA, LLB(Hons)

Rhonda Tombros BA, LLB(Hons), LLM, DPhil

Summary

• The value of informed consent

• Why informed consent is a particular issue for breech birth

• The requirements of informed consent for breech birth

• The legal implications of a failure to obtain informed consent

• How to facilitate autonomous decision-making in an institutional context

The Value of Informed Consent

• Based on fundamental human rights to:

• autonomy and

• refuse medical treatment

• Treatment without consent is unlawful

The Safety of Breech Birth

• Increasingly, since Term Breech Trial (TBT):

• options for vaginal breech birth (VBB) hard to come by

• clinicians lack experience in supporting VBB

• TBT criticised (Glezerman 2012; Lawson 2012):

• clinical design (Grant 2003)

• methods (Kotaska 2004; Keirse 2011; RANZCOG C-Gen 15)

• conclusions (Glezerman 2006)

• application, particularly in light of the two year follow up studies

• Other studies show that in well-controlled conditions there is no difference in outcomes between planned VBB and planned caesarean section (CS) for the baby (Goffinet, 2006)

• Lack of conclusive evidence that CS in active labour is safer than VBB (Walker, 2013)

• Obstetric guidelines recognise options for VBB should be available (SCOG; RANZCOG)

• Consumer demand for VBB (www.breechbirth.net)

• Increase in training opportunities for clinicians (2012 Breech Conference, BABE Course)

• Increased availability of VBB (Westmead, John Hunter, Royal Hospital for Women)

Why Informed Consent is a Particular

Issue with Breech Birth

• Informed consent required both to VBB and CS

• Usual obstetric practice based on contested research

• Many clinicians rely primarily on TBT in discussing the risks

• In practice, women often faced with no option but CS

• Some hospital policies make no allowance for women refusing CS

Some women agree to CS based on incomplete

information

Some women agree to CS due to lack of choice

Consent

Competent adults have the right to accept or refuse medical treatment and performing an operation without consent constitutes assault.

Department of Health & Community Services v JWB & SMB ("Marion's Case") (1992) 175 CLR 218.

Valid consent to medical treatment requires the following:

• The capacity to make treatment decisions;

• The consent is to be free and voluntary; and

• The consent covers the act to be performed.

Consent issues with breech birth

• Can consent be free and voluntary if no alternative option is presented or available?

• What happens when a woman refuses to

consent to a cesarean either antenatally or during labour?

• What happens when vaginal birth is not given as an option for women?

Informed Consent

[A] doctor has a duty to warn a patient of a material risk inherent in the proposed treatment; a risk is material if, in the circumstances of the particular case, a reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it.

Rogers v Whitaker (1992) 175 CLR 479

The underlying policy is… to protect the patient from the occurrence of physical injury the risk of which is unacceptable to the patient.

Wallace v Kam [2013] HCA 19

What constitutes informed consent

for breech birth?

Information should be provided on: • the TBT

• controversies surrounding the TBT

• other studies since the TBT

• RANZCOG guidelines

• risks of cesarean section, including the impact on future pregnancies

• risks of VBB

• comparative risks of VBB and CS

• the experience of the clinician and the impact this may have

• the likely availability of an experienced clinician and

• other available options within the hospital and elsewhere

Does pregnancy make a

difference?

The law is, in our judgment, clear that a competent woman who has the capacity to decide may, for religious reasons, other reasons, or for no reasons at all, choose not to have medical intervention, even though ... the consequence may be the death or serious handicap of the child she bears or her own death ... The court does not have the jurisdiction to declare that such medical intervention is lawful to protect the interests of the unborn child even at the point of birth.

Re MB [1997] 38 BMLR 175 CA

A pregnant woman has the same rights to privacy, to bodily integrity, and to make her own informed, autonomous health care decisions as any competent individual.

Australian Medical Association Position Statement on Maternal Decision Making, 2013

Legal implications

• Failure to obtain a woman’s consent to healthcare could lead to a criminal charge of assault or civil action for battery

• Failure to disclose material risks (obtain informed consent) to a patient may give rise to civil action for negligence

• In either case disciplinary action may result

Human rights protection

• Victoria and ACT have legislative schemes protecting human rights

• Victorian Charter of Human Rights and Responsibilities • section 10(c) protects a person from being subject

to medical treatment “without his or her full, free and informed consent”.

• section 13(a) protects a person from having their privacy unlawfully or arbitrarily interfered with (this could extend to right to choose circumstances of birth - Ternovskzy v Hungary)

Human rights protection

• It is unlawful for public authorities (including public hospitals) to act in a way that is incompatible with a human right (section 38(1))

• Charter should be taken into account in

hospital policy-making relating to birth options

• No separate cause of action but Charter can be raised as part of an existing case or in health care complaints process

Autonomy and Accountability

“Contradictory to patients’ reports of wanting information and decision-making authority, empirical evidence from various health specialties indicates that the majority of physicians underestimate patient preferences to participate in health-care decisions” (Goldberg, 2009)

University of Queensland study: • inconsistency between clinicians’ understanding of

women’s autonomy during pregnancy and birth

• poor understanding of legal accountability for adverse outcomes (Kruske et al, 2013)

The legal position of a clinician

supporting VBB

• Informed consent critical to protection of liability re decision to attempt VBB or CS

• Duty to take reasonable care during birth (Strelec v Nelson; Jemielita v MBWA)

• "The standard of reasonable care and skill required is that of the ordinary skilled personal exercising and professing to have that special skill“ (Rogers v Whitaker)

• Duty to recognise limits of own competence and call for senior assistance if necessary (Midwife Ms A and Midwife Ms B)

• Bad outcome does not necessarily lead to liability if no negligence (McLennan v McCallum; Do v KEMH)

• Comprehensive contemporaneous notes of decision-making procedure and clinical management (Gogos, et al 2011)

Do clinicians have a duty to obtain skills in VBB?

The standard of care may change as VBB becomes more widely available

How to facilitate autonomous

decision-making

• Individual level: • provide full information, including information in writing

• give women options

• support decision-making in a non-judgmental, non-coercive manner

• give time for women to make decisions

• document information and advice given, discussions and the woman's decision

The informed consent process protects clinicians too (Eagle v Prosser)

How to facilitate autonomous

decision-making

• Systematic level • create a pathway for women with breech presenting babies

• create policies that are safe and respect women’s autonomy

• create balanced patient information booklets

• identify clinicians with interest and experience in VBB and direct women to them

• consider a breech clinic (potentially with other institutions)

• create a process for the situation of there being no VBB experienced clinician on duty when woman presents in labour

• if your institution will not support VBB, identify other available options and provide appropriate referral

• provide training on supporting autonomous decision-making

• Provide VBB training to all obstetric and midwifery staff

Thank you

rhondatombros@gmail.com

anncatchlove@iinet.com.au

• BBANZ supports women in decision-making (www.breechbirth.net)

• BABE course provides education about clinical skills and breech clinics (www.also.net.au/babe-course)

Articles

• Glezerman, M, ‘Five years to the term breech trial: The rise and fall of a randomized controlled trial’ AJOG (2006) 194: 20-25

• Glezerman, M, ‘Planned vaginal breech delivery: current status and the need to reconsider’ Expert Rev OG (2012) 7(2): 159-166

• Goffinet, F, et al, ‘Is planned vaginal delivery for breech presentation at term still an option? Results of an observational prospective survey in France and Belgium’ AJOG (2006) 194(4): 1002-1011

• Goldberg, H, ‘Informed Decision Making in Maternity Care’ (2009) J of Perinatal Education 18(1): 32-40

• Gogos A, et al, ‘When informed consent goes poorly: a descriptive study of medical negligence claims and patient complaints’ (2011) MJA 195: 340-344

• Grant, J, ‘Obstetric conundrums’ BJOG (2002) 109(9)

• Hannah, M, et al, ‘Planned caesarean section versus planned vaginal birth for breech presentation at term: a randomised multicentre trial’ The Lancet (2000) 356(9239): 1375-1383

• Keirse, M, ‘Commentary: The Freezing Aftermath of a Hot Randomized Controlled Trial’ Birth (2011) 38(2): 165-167

• Kotaska, A, ‘Inappropriate use of randomised trials to evaluate complex phenomena: case study of vaginal breech delivery’ BMJ (2004) 329: 1039-1042

• Kruske, S et al, ‘Maternity care providers’ perceptions of women’s autonomy and the law’ BMC Pregnancy and Childbirth (2013) 13:84

• Lawson, G ‘The Term Breech Trial Ten Years On: Primum Non Nocere?’ Birth (2012) 39(1) 3-9

• Walker, S ‘Undiagnosed breech: Towards a woman-centred approach’ 21(5) BJ Midwifery (2013) 21(5) 244-249

Statements

• Australian Medical Association- Position Statement on Maternal Decision

Making, 2013

• RANZCOG, ‘Management of Breech Presentation at Term’ College Statement (C-Obs 11) (current March 2013)

• RANZCOG, ‘Guidelines for consent and the provision of information regarding proposed treatment’ College Statement (C-Gen 2) (current March 2010)

• RANZCOG, ‘Evidence-based Medicine, Obstetrics and Gynaecology’ College Statement (C-Gen 15) (current November 2012)

• RCOG, ‘The Management of Breech Presentation’ (Guideline No. 20b) (December 2006)

• SOGC, ‘Vaginal Delivery of Breech Presentation’ JOGC (2009) 226: 557-566

Cases

• Department of Health & Community Services v JWB & SMB (Marion's Case) (1992) 175 CLR 218

• Duthie v Nursing and Midwifery Council [2012] EWHC 3021 (Admin)

• Do v King Edward Memorial & Princess Margaret Hospitals’ Board [2008] WADC 118

• Eagle v Prosser [1999] NSWCA166

• Howarth v Adey [1996] 2 VR 535

• Jemielita v Medical Board of Western Australia (1106 of 1992) SCWA 1 & 2 October 1992, 13 November 1992

• McLennan v McCallum [2010] WASCA 45

• Midwife Ms B, Midwife Ms C (04HDC05503) Health and Disability Commissioner (NZ) 28 November 2006

• Re MB [1997] 38 BMLR 175 CA

• Redacted Finding into Death Without Inquest (3154/08) Coroner’s Court of Victoria 1 March 2012

• Rogers v Whitaker (1992) 175 CLR 479

• Strelec v Nelson (12401 of 1990) SCNSW 13 December 1996

• Ternovskzy v Hungary (67545/09) ECtHR 10 December 2010

• Wallace v Kam [2013] HCA 19