February 19, 2024

Informed consent in childbirth – what you need to know.

Consent is a core principle of any medical care, not least maternity care. Our expert maternal injury solicitors are here to explain your rights to informed consent during childbirth.

What is informed consent in childbirth?

Informed consent in childbirth means that everyone receiving maternity care has the necessary support and information to understand the options available to them and the risks and benefits of those options, to enable them to make a decision about their clinical management.

In a Supreme Court case, Montgomery -v- Lanarkshire Health Board (2015), the Court stated that the test for whether a risk is a ‘material’ one is whether a reasonable patient would attach significance to the risk, or whether the doctor should be aware that the particular patient would attach significance to it. This means that there must be an honest conversation between a doctor and a patient and the assessment of risk must be sensitive to that individual patient’s characteristics. Each person perceives risks differently and it is important to address how significant the risks are for that individual patient.

Giving misleading information about someone’s medical condition or the proposed treatment, or not giving them relevant information, may mean that consent was not valid. The failure to provide appropriate information may also leave the healthcare professional open to a successful claim of negligence, if the patient suffers harm as a result of the treatment.

The Royal College of Obstetricians and Gynaecologists also provides advice on consent, and on specific procedures and the risks associated with those procedures, including caesarean section, operative delivery and participating in research while in labour.

Why is consent important in midwifery?

As with any other form of medical treatment you receive throughout your lifetime, it is important throughout your pregnancy and childbirth that your midwife or doctor provide you with the necessary support and information to enable you to make a decision about your treatment options that is right for you. This means ensuring you are reasonably informed about the treatment options and risks.

What are the NHS’s Birth Rights’?

Birthrights.org.uk sets out the rights of women and birthing people in the UK. They provide advice and information on your legal rights. They also train doctors and midwives and campaign to change maternity policy and systems and are therefore an extremely useful resource.

What is an example of ‘informed consent’ in maternity care?

You have the right to make your own decisions about your body. It is against the law to give you medical treatment unless you agree to it.

It is important that you understand the treatment or treatment options well enough to make a decision about what treatment you want to have. It also important that no-one, including your family or healthcare professionals put pressure on you to agree to have treatment.

Making a birth plan and having respectful conversations with your doctors or midwives early in your pregnancy gives you a good opportunity to think about the treatment and care you may be offered, and that which you may not want.

You can specify in your birth plan any treatment you do not want. However, at some stage during your pregnancy or labour, the doctors or midwives caring for you may think that your treatment should change. If anything changes, they must tell you what is different, and any changes to risks and benefits of treatment being offered, so that you can consent again.

There are some situations where patients are asked to give consent in advance. For example, if you are going to have a planned caesarean section, then the obstetrician should offer you a proper conversation about the risks and benefits ahead of time. A formal consent form is completed on the day of the surgery following further discussion of the risks and to discuss any concerns you may have. It is your right to change your mind. They cannot then do anything further during the operation that you haven’t agreed to, unless it is required in order to save your life or prevent serious harm.

Likewise, if you have been booked for an induction of labour, you can change your mind and decline the induction at any time, including on the day of the procedure. The midwife or the obstetrician should provide you with all the information you require to make an informed choice about your care.

Before you decide about any care or procedure, the obstetrician or midwife should tell you about the risks and benefits that will be important to you, so you can be fully involved in the decision-making process. You should be told if there are other treatments you could have instead and the risks and benefits of those. You should be made aware of what could happen if you don’t have the treatment.

It is also extremely important that your doctor/obstetrician listens to you and finds out what matters to you. For example, if a treatment or procedure might make future pregnancies complicated, they need to talk to you about how important it is to you to have more children, so that you have the information you need to make a decision. It is not enough just to give you a leaflet or a link to a website. You should have a personal discussion with your doctor or midwife, to go through what is really important for you.

You have the right to request certain care, but your doctor or midwife do not always have to offer care if there is a good reason why they should not. This should be explained to you fully and documented within your records.

Find out more about a mother's legal rights in pregnancy and childbirth

In this article, prepared with Janet Edwards, a midwife with over 30 years’ experience, we set out your legal rights during pregnancy and childbirth.

Many of the mothers we represent say that they did not know what to expect, they did not know what they could ask for or, if they could refuse a treatment option being offered to them. Here we explain what all mother’s should know about their legal rights.

Can I request a caesarean section?

The decision over how your baby is delivered is sometimes a difficult one. There are some situations where it may be more appropriate for a mother to have an early induction of labour or an elective caesarean section. In this scenario, it is important that a mother is made aware of all options available to her and the risks associated with each option, so that she can make the right choice for her and her baby.

Often expectant mothers will want to know whether they can choose to have a caesarean birth, even if the doctor or midwife doesn’t think there is a medical reason for one. This is called a maternal request caesarean birth.

If you are otherwise low risk and your preference is for a caesarean section, the midwife will refer you to the obstetrician for a full discussion of the reasons, risks and benefits. When this situation arises, your doctor or midwife must listen to your reasons for wanting a caesarean birth and have good reasons for saying no.

If you request a caesarean birth during labour, your midwife should listen and take you seriously and refer you to the obstetrician You should be offered other support, such as pain relief, if you feel this would help you to be able to have a better conversation about caesarean birth or other alternative options.

On occasion, you may have to wait to have a caesarean section if there are other individuals in the unit who need a caesarean more urgently. There are guidelines available from the national guidance for the National Institute of Health and Care Excellence (NICE), which recommend that if you ask for a caesarean birth, the hospital should support this if they are satisfied you are making an informed choice. The obstetrician should discuss with you why you want a caesarean birth, and the risks and benefits of caesarean and vaginal birth.

Can I request a caesarean section due to anxiety about a vaginal birth?

If you are requesting a caesarean section due to anxiety about childbirth, the hospital should refer you to a healthcare professional who is an expert in perinatal mental health. However, you do not have to accept this offer of support if you do not want to.

The guidance says that if you still want a caesarean birth after you and the hospital have talked about it, and you have been offered support, the hospital should offer you a caesarean.

Informed consent and refusing treatment

An adult assessed to have mental capacity can refuse any treatment options offered to them during pregnancy and labour.

Can I refuse a forceps delivery?

As with any other medical intervention offered during your pregnancy or labour, you can refuse forceps or an assisted birth. The RCOG have guidelines as to when an assisted vaginal birth may be appropriate.

If you are in labour and refuse a forceps or ventouse delivery, the alternative options are likely to be to wait for your baby to be born without assistance or to have an emergency caesarean section. Your obstetrician or midwife must discuss your options with you depending on your individual circumstances.

Can I refuse an episiotomy?

Yes, you can refuse an episiotomy.

If you want to reduce your risk of having an episiotomy you should also talk to your midwife or obstetrician about this.

If you are in labour and your obstetrician or midwife considers an episiotomy is necessary, they should explain why and ensure you are aware of the risks/benefits of having an episiotomy at that time together with the risks/benefits of any other treatment options.

When does a lack of consent in childbirth give rise to a medical negligence claim?

Sadly, as birth injury solicitors, we see many situations where a lack of consent has given rise to a medical negligence claim. In the maternal injury team we often represent mothers who have not been informed of the risks of a particular treatment option which has resulted in them suffering an injury. Here is an example of how we helped a client who suffered a fourth degree tear due to not being informed of alternative treatment options available to her:

Our client was pregnant with her second child in what was considered to be a low risk pregnancy. However, throughout the pregnancy, her baby was measuring large for dates. At 37+5 and 39+5, she was measuring above the 90th centile. At 40+5 weeks gestation, our client went into labour and attended the hospital. She was admitted to the labour ward and it was again noted that the baby was measuring above the 90th centile. Labour progressed but during delivery, complications occurred. Following delivery of the baby’s head, shoulder dystocia occurred. The emergency buzzer was pressed. Our client was moved into the McRoberts position and an episiotomy performed. The baby was delivered but following delivery, our client was noted to have suffered a fourth-degree tear. A repair was carried out in theatre but our client required a colostomy and following reversal of the colostomy has experienced Incontinence of stool and flatus. It is admitted that there was a failure to refer her for a growth scan at 38 weeks gestation and to have offered her early induction of labour or caesarean section.

Wondering if you’ve been negligently treated?

You may be unsure as to whether you gave informed consent for a procedure which caused you an injury in childbirth. That’s where we come in.

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