Women's choice in obstetric care –

managing the risks

Jennifer Cowen Minter Ellison

Introduction

‘In our judgment while pregnancy increases the personal responsibilities of a woman it does not diminish her entitlement to decide whether or not to undergo medical treatment. Although human, and protected by the law in a number of different ways..., an unborn child is not a separate person from its mother. Its need for medical assistance does not prevail over her rights. She is entitled not to be forced to submit to an invasion of her body against her will, whether her own life or that of her unborn child depends on it. Her right is not reduced or diminished merely because her decision to exercise it may appear morally repugnant.’

• UK Court of Appeal in St George’s Healthcare NHS Trust v S; R v Collins, Ex Parte S [1998]

Introduction

• Ideally in obstetric practice, the rights and interests of the mother, the fetus and the obstetric care provider [whether that be an obstetrician, midwife, hospital or GP-obstetrician] will be in complete harmony.

• However, occasions sometimes arise in which a mother is either dissatisfied with or unwilling or unable to comply with the recommendations for care given by the care provider.

• This may take place in several different contexts, including fear of medical treatment, negative perceptions of past treatment, a desire for autonomy, social health issues or personal political views on the role of medical practice in childbirth.

Introduction

• Where the mother is unwilling or unable to follow medical recommendations for care there is potential for the rights and interests of the three parties to the relationship to diverge.

• When that occurs, there are potential risks for all three parties. Such risks may be able to be successfully reduced by effective management, but may be impossible to completely alleviate.

The mother’s rights

• In Australia:

– a competent adult is free to choose whether to consent to medical care both under common law and under the Medical Treatment Act 1988 (Vic) and equivalent legislation in other states;

– subject to legislation in some states, there is a common law right for a minor to consent where her or she ‘achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed’: Gillick v West Norfolk AHA.

• At common law, the position with regard to adults has been stated in a number of UK cases:

‘An adult patient who...suffers from no mental incapacity has an absolute right to choose whether to consent to medical treatment [or] to refuse it...this right of choice is not limited to decisions which others might regard as sensible. It exists whether the reasons are rational, irrational, unknown or non-existent’: re T(adult, refusal of treatment) [1992].

• In the absence of such consent or other lawful justification, a medical intervention, even if performed for the purpose of preserving the life of a mother and/or her fetus, will be a trespass to the person and potentially a criminal assault.

The mother’s rights

• The test for ‘competency’ is whether the patient’s capacity is so reduced that she is:

‘unable to understand the nature, purpose and effects of the proposed treatment’: Re C (adult: refusal of medical treatment) [1994].

• Where a patient is assessed to be competent by a medical practitioner, the patient’s instructions must be followed and the medical practitioner or the Court cannot override it by invoking the general doctrine that allows emergency treatment to be provided in the absence of consent.

• A number of UK decisions within the last 20 years have authorised surgical obstetric interventions on the basis that the patient was temporarily incompetent. However, two subsequent decisions have clarified the circumstances in which Court intervention will be possible.

The mother’s rights

• In Re MB (medical treatment) [1997] a woman with a needle phobia presented at term with a footling breach with 50% risk of fetal death or brain damage. She initially consented to caesarean but then refused any needles or other form of anaesthesia. The Court noted that: – The right of a competent person to refuse treatment does not alter where there is a risk

of death or injury to fetus; – The Court may only intervene where the patient’s competency is in question, due to

mental health reasons or the labour process; – The greater the consequences of the decision, the greater the level of competence

required; – Panic, indecisiveness and irrationality do not amount to incompetence but may be

symptoms or evidence of it; Ultimately, the Court held that the patient was rendered temporarily incompetent by her

needle phobia as ‘at the moment of panic, her fear dominated all’.

• In St George’s Healthcare NHS Trust v S; R v Collins, Ex Parte S [1998], a pregnant woman presented for the first time to a doctor at 36 weeks with severe pre-eclampsia. She refused in writing any medical intervention, acknowledging and apparently understood that if not delivered, the baby would die and she might also. She was detained under the Mental Health Act, and an ex parte application made for a forced caesarean. The initial application was granted, and the forced caesarean took place.

The mother’s rights

• On the woman’s appeal, the Court of Appeal held that the detention was unlawful and that the declaration authorising the caesarean should be set aside. The Court of Appeal noted a number of deficiencies in the ex parte application, including that: – The Court was mistakenly advised by the hospital’s counsel that the woman

was in advanced labour [she was not]; – The Court was not advised that the hospital considered the woman to be

competent, and that she had already consulted a solicitor; – Neither the woman, her solicitor nor the Official Solicitor were advised of the

application; – The Orders made no allowance for the woman to apply to vary them.

• In setting aside the initial Orders authorising the caesarean, the Court acknowledged that the hospital would thereby have no defence to the woman’s concurrent civil and criminal claims for trespass.

• In both Re MB and the St George’s case, the Court set out guidelines to be followed by hospitals and Courts where a patient’s decision making capacity is in question.

The mother’s rights

• In Australia, the Supreme Court of Queensland has made an order allowing potential forced obstetric treatment in the case of Queensland v D [2004], which related to a pregnant prisoner with a personality disorder, who was due to given birth imminently.

– Psychological evidence indicated that while the woman had general capacity, her disorder could cause sudden and inexplicable irrationality and emotional instability, meaning she was at risk of temporary incapacity.

– An order was accordingly made on an ex parte application, allowing treatment necessary in the interests of the woman, or her child, should she unreasonably refuse recommended treatment.

The fetus’ rights

• In general, a fetus is not considered a separate entity from the mother and accrues no legal rights until birth. As such, there are a number of UK authorities for the proposition that the father of an unborn child cannot restrain the mother from undergoing an abortion, on the basis that the fetus has no rights until birth: Paton v British Pregnancy Advisory Service.

• In Australia: – applications made by the father to restrain abortion have been refused - even in the

context of a proposed abortion that was likely to be illegal under Queensland law at the time: A-G (Qld) Ex rel Kerr v T. In that case, Gibbs CJ in the High Court stated ‘a fetus has no right of its own until it is born and has a separate existence from its mother’.

– applications made in the name of the unborn child to restrain an abortion by the mother have been refused: ??The Minister for Youth and Community Services NSW.

• Similarly, applications have been refused where it has been sought to have the Court exercise parens patriae jurisdiction over an unborn child [and therefore control the actions of the mother] in cases of mothers who were: – Leading a nomadic existence: Re F (in utero) UK; – Addicted to glue sniffing: Winnipeg Child and Family Services (Northwest Area)v G (DF).

The fetus’ rights

• So long as the fetus is ‘born alive’ under the common law rule, which requires only the most basic indicia of life, the full civil rights of a person are then accrued by the fetus. These include rights in relation to actions or events that occurred prior to the birth, for example: – Potential interest as a testator to a person who dies prior to the fetus’ birth;

• Estate of the Late K, Ex parte Public Trustee [1996]. – Harmful substances administered to the mother:

• Thalidomide proceedings. – Physical injuries caused to the mother, leading to physical injury to the fetus:

• R v Iby: fetus injured in car accident by negligent driver, who was prosecuted for manslaughter after the baby was born in poor condition and died shortly after birth.

– Inadequate medical care during the pregnancy: • X and Y (by her tutor X) v Pal and Ors: fetus born with syphilis due to

failure to perform testing during pregnancy. – Inadequate medical care during birth.

The fetus’ rights

• In Australia, there have been limited circumstances in which a mother has been found to owe a duty of care to a fetus, for example in the context of injuries caused to a fetus through the mother’s negligent driving: Lynch v Lynch [1991]. This has been rationalised in two ways: – That the duty imposed on the mother was no different to the duty imposed on

her as regards all other users of the road; and – That the decision was made in the context of the NSW compulsory third party

liability insurance.

• Interestingly, in Canada an almost identical factual situation in the case of Dobson v Dobson led to an opposite result, with the Supreme Court of Canada holding that imposing a duty on mothers to their fetus would have the potential to extend to a duty regarding lifestyle choices and would therefore ‘significantly undermine the privacy and autonomy rights of women’.

• In the UK, the Congenital Disabilities (Civil Liabilities) Act 1976 states that mothers are except from tort liability for prenatal injury to their children born alive, except in driving situations.

The fetus’ rights

• The fetus accrues no general right to sue the mother in relation to her conduct prior to birth, and a Court cannot restrain a competent woman from refusing recommended medical treatment in respect of pregnancy or birth.

• At most, the Court may make pre-emptive orders: – Authorising or compelling medical treatment to be given to the fetus once it is born; and – Determining how the baby is to be cared for.

• Such orders were made in the case of Re ELM [2006], which related to a pregnant HIV+ woman who was convinced that she and her unborn baby had been miraculously ‘cured’, and therefore refused any medications to be administered to herself or her fetus and refused to consent to a caesarean. The NSW Supreme Court allowed an ex parte application made prior to the birth to: – Declare that the Director-General of Community Services had authority to consent on the baby’s

behalf to treatment, once born; – Prohibit the mother from breast feeding the baby [although notably, she did not intend to do so]; – Prohibit the mother from removing the baby from hospital without authority.

• No attempt was made to seek to compel the mother to undergo a caesarean or take medication in the antenatal period, even though such actions would have significantly further reduced the prospects of the fetus contracting HIV.

The care provider’s duty

• The general duty of care owed by an obstetric care provider is owed to both mother and fetus.

• However, a care provider cannot provide treatment in the absence of consent from a competent mother, no matter how desirable the treatment in the interests of the mother or fetus.

• The care provider’s duty of care only requires them to provide treatment that they reasonably believe to be clinically indicated: – Gillett v Robinson: Mother alleged caesarean ought to have been performed at her request

[although there was not evidence before the court that the patient had insisted upon an elective caesarean]. Court accepted doctor’s argument that the caesarean was not clinically indicated and that he had acted within competent professional practice in recommended that the mother proceed to vaginal delivery

• In general, a care provider has no positive duty to attend a person in need of treatment who is not their patient. However, in an emergency situation a doctor or other health professional may be legally obliged to attend an emergency where a situation of special proximity exists between the health professional and patient: Lowns v Woods.

The care provider’s rights

• Under the Australian Medical Association’s Code of Ethics: – A doctor is not compelled to continue to treat a patient where the doctor is

unwilling to do so, although in the case of a patient requiring acute care the doctor must first ensure that the services of a suitably qualified doctor have been obtained to take over care.

– When terminating a doctor-patient relationship a doctor must: • Ensure the patient understands that the relationship is to be terminated; and • Provide the patient with an adequate referral, or details of appropriate practitioners, or,

in the case of a specialist, provide a referral back to the patient’s GP.

• While a doctor cannot generally be compelled to provide treatment that does not accord with their moral or ethical beliefs, legislative exceptions may apply: – Abortion Law Reform Act 2008 (Vic), section 8:

• A doctor with a conscientious objection to abortion must inform a patient seeking an abortion of that objection and refer her on to a doctor or health service whom it is known does not hold a conscientious objection; and

• A doctor or nurse has a duty to perform or assist in an abortion in an emergency situation where necessary to save the patient’s life.

The care provider’s rights

• The ACM’s National Midwifery Guidelines for Consultation and Referral contain Appendix A: When a woman chooses care outside the recommended.

• Appendix A sets out a four step process where a midwife advises a mother that a certain course of action must be followed in order to comply with midwifery standards, and the mother refuses to follow it: – The midwife should advise the mother of the guideline and the rationale and evidence behind

it; – The midwife should consult with others [another midwife, physician, peer review group or

ethicist] regarding appropriate next steps; – That advice should be shared with the mother; – The informed choice process should be fully documented.

• If a satisfactory resolution cannot be achieved, the midwife may decide to discontinue care, in which case she should clearly communicate that fact to the mother, and arrange and follow though a written referral to another care provider.

• Appendix A states that in the course of labour or urgent situations, if the steps for discontinuing care have not been completed the midwife must not refuse to attend the woman.

Choice

• It is now well accepted that choice is an integral aspect of modern health care policy. Choice in maternity can concern the identity of the care giver, the place of birth, the mode of delivery, the use of anaesthetic and the frequency and extent of antenatal care.

• The National Health and Medical Research Council noted in its 2010 report National Guidance on Collaborative Maternity Care, that: – Women want to make their own decisions about their pregnancy and strongly prefer a

woman-centred approach to maternity care; – To be actively involved in the decision making process, women require up to date, unbiased

information on the full range of options from all health care providers to enable her to make appropriate choices and major decisions;

– Women have the right to decline care or advice, or to withdraw consent. If a woman declines care based on the information provided, her choice must be respected and she should not be ‘abandoned’.

• Given that choice requires consideration of risks and benefits, it is closely associated with the key issue of safety.

• As Snowden et al [2011] noted: “One of the difficulties of the choice premise is that it engenders responsibility for the choices made. This is particularly pertinent in maternity care where the stakes are so high and women are explicitly bound by the consequences of making the wrong choices”.

Risks

• Where a competent mother declines to follow advice, the care provider may be required to walk a tightrope between accepting and supporting the mother’s decision to refuse recommended care, and managing a myriad of risks, including: – Physical harm to the mother and/or fetus; – Disruption of the initial relationship between mother and baby; – Criticism by a Coroner; – Legal proceedings; – Regulatory or disciplinary proceedings; and – Consequent reputational harm.

• Although the mother does not face liability risks if she exercises her right to refuse care recommendations, she faces a number of physical, legal and societal risks: – Withdrawal of care by her preferred care provider; – Poor birth outcomes for mother and/or baby; – Financial and physical responsibility for a disabled child; – Criticism by a Coroner; and – In an extreme case, legal proceedings against her to compel treatment on the grounds of

perceived incompetency or to impose restrictions on her right to care for the baby, after birth.

Risk management: Strategies and tools for health care providers

• There are a number of strategies that care providers may use to manage these risks: – Forward planning – development of appropriate protocols and consents; – Communication; – Documentation – including Medical Treatment Act certificates; – Consultation and advice from others; – Withdrawal of care; and – Application to the Court.

Forward planning: – Care providers should have a range of policies and procedures designed to

identify any issues as early as possible, including policies for: • Antenatal consent; • Assessment of decision making capacity; and • Management of mothers both with and without decision making capacity;

Risk management: Strategies and tools for health care providers

Communication: • A key tool is the provision of unbiased, accurate information regarding all of the

options open to the mother, and the possible consequences of each. Not only is the provision of information an integral part of the care provider’s duty of care to the mother, it is the best way to reduce the risk of the mother refusing appropriate options for care.

• The timing of the provision of such information is also critical. • Women should be provided, wherever possible, with each option open to them,

the advantages and disadvantages of each option, and with sufficient time to consider the options. Such information should be evidence based.

• Further, the information should be both in written and in verbal form. • Where a potential area of concern or disagreement is identified, engage in

reciprocal discussions with the mother to determine her point of view and the reasons underpinning it, while advising frankly but calmly on the recommended options for treatment and the risks inherent in refusing care.

Risk management: Strategies and tools for health care providers

Documentation • All information regarding options and outcomes should be provided in

writing, and if possible a written consent for treatment obtained antenatally, including an acknowledgement that birth plans cannot always be followed;

• Any concerns raised by the mother regarding consent to proposed options, and subsequent discussions with the mother, family and other clinicians on that issue, should be fully documented;

• If a mother makes it clear that she will not provide her consent to a particular form of treatment for a current condition, then the Medical Treatment Act 1988 (Vic) (or equivalent legislation in other states), may be used: – The purpose of the Act is to protect both patients wishing to refuse care and doctors

who act on a patient’s wishes; – ‘medical treatment’ is defined to mean an operation, administration of a drug or any

other medical procedure (but not palliative care);

Risk management: Strategies and tools for health care providers

Documentation (Cont): – Under section 5, where a doctor and another person are satisfied that the patient:

– has clearly and voluntarily expressed a decision to refuse medical treatment generally, or medical treatment of a particular kind, for a current condition;

– has been informed of their condition and the proposed treatment and appears to understand; and

– is of sound mind and over 18 years, the doctor and other person may together witness a refusal of treatment

certificate. • In requesting a mother to sign the Certificate, the nature and purposes of the Certificate should be

explained. If the mother refuses to sign a certificate under the Act, then the request and the refusal should be fully documented.

Consultation with others: • Other care providers engaged by the mother; • Senior colleagues, or a peer review group; • Legal or ethics advisers; or • Independent Psychiatrist, if competency is considered to be in doubt.

Withdrawal of care: • For a competent patient, in accordance with AMA or ACM Guidelines.

Risk management: Strategies and tools for health care providers

Legal proceedings: • Guidelines from Re MB and St George Healthcare NHS Trust v S,

where the mother’s competency is in doubt: • If assessment by an independent psychiatrist indicates an issue as to

competence, seek legal advice as soon as possible; • Advise the mother’s solicitors as soon as possible if a legal remedy is to be

sought, or inform the Official Solicitor [or equivalent] if the mother does not have capacity to instruct solicitors;

• The application should be inter partes rather than ex parte; • The Judge must be provided with accurate information, and all the relevant

information; • The terms of the Order should be recorded and approved by the Judge, and

the mother should be accurately informed of them and of the procedure for review:

• If competency is not in doubt: • An ex parte application may be made where the purpose of the application is

not to vitiate the mother’s decision in relation to her own care, but to make arrangements for care after the birth, eg Re ELM.

Case example: refusal for an episiotomy to be performed

• Public hospital. • Mother was 41 weeks pregnant with her first child. • Birth plan had noted no episiotomy was to be performed. • Fetal head on view for excessive time. • Doctor not called. • Episiotomy recommended, but declined by mother. Eventually agreed to, but once performed, it

was inadequate, requiring a further two extensions. There was a total delay of 11 minutes in delivering the baby, at a time when delivery was considered imperative due to a poor fetal heart rate.

• Baby born with hypoxic injury. Legal proceedings issued. • Mother’s version of events: an episiotomy was suggested (as opposed to being recommended) and

no information was given as to why the episiotomy was necessary. Further, she believed that if the situation was serious, a doctor would have been called to assist with the delivery. That did not occur.

• The medical notes referred to ‘episiotomy declined’. Given the passage of time, the midwives could not recollect precisely what information and advice had been provided to the mother at the time of recommending the episiotomy.

• Expert opinion: ‘it is clear that the midwives were attempting to comply with the patient’s wishes in not having an episiotomy performed, or keeping this as small as possible when delivery needed to be expedited, however it is also clear that delivery was delayed because the perineal tissues were too tight and an episiotomy of adequate size is the method of overcoming this problem’.

Case example: Inquest into the death of Joseph Thurgood Gates

• Factual background: – The mother had a history including two caesareans. After booking into MMC’s birthing unit,

she had a detailed consultation with a consultant, who recommended a caesarean would be the safest option for delivery given the previous history and the risks of VBAC, including uterine rupture.

– The consultant advised a home birth attempt would be unwise and he would not approve a plan for labouring at home and moving to hospital for delivery. He agreed to support VBAC on the basis that was the mother’s choice, noting that he did not recommend that choice.

– The mother then consulted a private midwife at 26 weeks, and advised she would like to undertake VBAC at home, having formed the view that she disagreed with the consultant’s views as to risks of uterine rupture. The midwife indicated she would support a home birth.

– In a further MMC consultation at 34 weeks, the mother was unhappy that not all her preferences could be accommodated, and told the consultant she did not wish to be advised any further of the risk of uterine rupture, on the basis it was intended to ‘scare her’ into a caesarean. The consultant insisted it was her professional duty to advise of the risks.

– At 42 weeks, the mother had an ante-partum bleed and attended MMC with her midwife. The fetus was in a breach position [which later resolved]. A registrar again recommended hospital admission and a caesarean, and again explained the risks including uterine rupture and hypoxic injury. He advised that if a VBAC were to be attempted, for the mother and baby’s safety it should take place in hospital.

– The mother ultimately left MMC, having agreed to return if fetal movements reduced or labour commenced. [She conceded in evidence she had no intention of returning].

Case example: Inquest into the death of Joseph Thurgood Gates

– On labour commencing, the mother telephoned the midwife who attended her at home. In the course of the labour, the mother complained of dizziness, there was some blood loss and an extended period of reduced FHR. After some 20 minutes of fetal bradycardia, the patient was advised she needed to go to hospital.

– The baby was born at the hospital in very poor condition and died shortly thereafter. The coroner concluded that on all the evidence a uterine rupture had occurred at some point during the labouring at home.

• At the inquest, evidence was given by the midwife that: – From 34 weeks, she had misgivings about a homebirth, and by 42 weeks, she did not

think a home birth was advisable, but she did not convey these misgivings to the mother;

– At the hospital admission at 42 weeks, she agreed with the MMC’s advice that the patient remain in hospital until birth, and conveyed this to the mother [the Coroner found she did not do so clearly]; and

– When the mother went into labour, she did not advise her to attend MMC, despite her considering that a homebirth was no longer advisable.

• The Coroner was critical of the midwife. It was found that: – The midwife did not comply with the ACM Guidelines or Appendix A; – Her actions [in making preparations for homebirth] and inaction [in failing to advise of

her concerns] gave sustenance to the mother’s misguided views; and – There were a number of shortcomings in the management of the labour itself.

Case example: Inquest into the death of Joseph Thurgood Gates

• At the inquest, the family also sought to criticise MMC on the bases that it:

– failed to properly discuss with the mother the risks of VBAC and homebirth, leading her to disengage with the hospital; and

– was unresponsive or unco-operative with her birthing plan, causing her to opt for home birth.

• The Coroner dismissed these submissions, finding that:

‘there was nothing further that the MMC could reasonably have done to either press home the risks or to attempt to facilitate a safe birth at the hospital’.

• The coroner was also somewhat critical of the mother, saying that:

‘To disregard the obstetrician’s advice on the basis of a mantra founded in the uncertainty of statistical data obtained from the internet, is a dangerous course to follow.’

• The coroner made findings including that:

– The death was preventable had labour and delivery occurred in a controlled hospital setting; and

– The failure of the midwife to provide clear advice to the mother as to the risks of VBAC and homebirth indirectly contributed to the death.

Case example: Re ELM

• The mother was a HIV+ pregnant woman who was due to give birth at Westmead Hospital 11 days after the application was heard.

• She had initially taken medication for her condition, but now believed that God had miraculously healed her, and had refused all medication from about 3 months gestation.

• She expressly stated she did not wish for her child to have medication, and refused to undergo a caesarean to reduce the risk of her fetus contracting HIV. She did not intend to breast feed the baby.

• A public guardian had initially been appointed for her under the Mental Health Act, but that had been revoked.

• The risk of the baby contracting HIV was: – 50-70% if no anti HIV drugs were given on birth; – 10-15% if drugs were commenced on birth and maintained (but would double if the baby was

breast fed).

• The hospital’s Director of Neo-Natal medicine had consulted with an expert in the area, and developed a protocol for management of the anticipated vaginal birth to best prevent infection and enable drugs to be given to the baby promptly. Arrangements were also made for prompt provision of the drugs to other hospitals should the mother present elsewhere.

Case example: Re ELM

• The Department of Community Services had authorised a care application under the applicable Act for an interim order placing the child in care, but this might take some days to achieve following the birth.

• Further, the Director-General was concerned that if the mother was aware of the hospital’s intention to give drugs to the baby, she may not present to the hospital [or any hospital] for the birth.

• For these reasons, a pre-emptive application was made ex parte to confirm authority for the drugs to be given and to injunct the mother from removing the baby from medical care or breastfeeding. An order was also sought to delay informing the mother of the Orders until the birth had occurred.

• In circumstances where providing the mother with notice of the application or the Orders might lead to the mother withdrawing from care, the Court concluded that it was appropriate for the Orders to be made ex parte and for communication of them to be delayed until after the birth.

Case example: working together and getting it right

• Induction of labour for ‘big baby’. On palpation, midwife concerned the baby was very large.

• Consulted the registrar and requested assistance at delivery due to concerns about shoulder dystocia.

• Informed the mother of the possible treatment options including a caesarean section and the manoeuvres required for shoulder dystocia.

• Second stage: fetal head stuck. Shoulder dystocia managed according to the ALSO protocol. Midwife requested the registrar take over delivery. Baby delivered with a fractured arm. Mother ecstatic that baby born alive.

• Good communication between midwife and doctor. Good communication with mother. Mother and midwife pleased that a caesarean section not performed.

Conclusion

‘Our responsibility must be to relay the evidence to women in a gentle, supportive and informed way. Extreme polarisation does not help the woman. At times, decisions will be made that do not accord with our own standards and guidelines, but obstetrics is not unique in such dilemmas. Other domestic, social and cultural elements will influence a woman’s decision and these must be respected. We must support her and ensure that the appropriate emergency protocols and services are available’.

Dr Anthony Falconer & Gerald Chan Whose Choice is it? O&G Magazine Vol 13 No 4 2011

Questions

Jennifer Cowen, Special Counsel

20 June 2013