It’s 2am on birth suite and a new patient has arrived in labour. She is a 38-year-old woman with a previous caesarean for fetal distress at 8cm with a 4kg baby in occiput posterior position complicated by a 1000ml postpartum haemorrhage. She has had her antenatal care through a local birth centre; while you don’t have access to her results, she reports to the midwife that there have been no issues throughout the pregnancy. She has not had third trimester growth scans but has measured appropriately for dates. She has a BMI of 40 and reports no other medical co-morbidities.
She has been contracting regularly for over 24 hours and her membranes have been ruptured for almost 20 hours. Because of concerns regarding COVID-19, she decided to labour at home with the support of her husband, a doula and a midwife.
On vaginal examination at home, the cervix was 8cm dilated and she is attending now as she feels exhausted and would like to consider analgesic options. Prior to seeing the patient, you review her birth plan, which outlines her preference for minimal intervention, including avoiding continuous electronic fetal monitoring and intravenous cannulas and plans for physiological third stage. You’ve been informed the patient is febrile at 38.4 degrees, but other vital signs are normal. You attend the room promptly to review the patient and discuss her ongoing care.
The issue has been raised whether it is necessary to consent pregnant people for vaginal delivery. The argument, as it is made, states that there are significant risks associated with vaginal birth and there are alternative options.1 2 Therefore, to respect a pregnant person’s autonomy requires a formal informed consent process, as it is provided for other medical procedures.3 4 We believe that those calling for this step recognise an important issue in the provision of care (informed decision-making) for pregnant people, but their solution takes a hammer to an issue that requires some finer tools.
This case is challenging. As an obstetrician, you are faced with discussing interventions with a patient that she ideally wanted to avoid. Now you must try and balance her goal of minimal intervention with providing a good outcome for her and the fetus. Points to consider:
- Some intervention will be necessary, how do you communicate this?
- She’s obviously tired, in pain and febrile, and may desire analgesia. How do you navigate possible impaired capacity when communicating information?
- How different does this case look if you had the opportunity to discuss what might occur in labour, address her specific risks, understand her reasons for minimal intervention (what is she trying to avoid specifically, and why?) and the potential responses to these much earlier?
We hope that this case demonstrates a number of ways in which birth is a unique situation that presents challenges and opportunities for the way care and information is provided and discussed with patients. Antenatal care offers opportunities to have in-depth discussions around a patient’s values, goals, and the various options including risks and benefits, on multiple occasions. Amongst the challenges are that once labour has begun, situations can change rapidly and can become emergent, requiring immediate and responsive actions. A patient’s capacity may be impaired or fluctuate during labour, and while we want to emphasise that it should not be assumed that labour impairs capacity, it is necessary to assess capacity in relation to decisions as needed.
Doctors learn about informed consent in two ways relevant to this discussion. From an ethical perspective, they are taught that informed consent requires the disclosure of information, the patient must have capacity (where this is considered time- and decision-specific), they must be able to understand information, and they must make a decision voluntarily.5 These discussions focus on the need for informed consent in order to respect a patient’s autonomy. From a legal perspective we tend to focus on the case of Rogers v Whitaker.6
That case concerned the duty to warn about risks, which requires a doctor to inform a patient of material risks relating to a proposed treatment. Material risks include risks that the reasonable patient would attach significance to and risks that this particular patient would attach significance to. Failure to do so breaches the standard of care. Viewed this way, the failure to warn and provide information is tied to the quality of the care given and the action in negligence requires that the patient has suffered harm as a result.7 8 Negligence is the mechanism by which the law holds clinicians accountable for harm caused in the course of their work.
Notably, the principles and values that underpin negligence are different to those that underpin the concept of consent, which relates to trespass.9 Consent is the permission given by the patient to the doctor to perform a procedure. The threshold for valid consent is that the general character of the specific procedure was communicated and that the consent was given by a person who was competent to make that decision and it was freely given. Autonomy lies at the heart of the action in trespass, but it has a lower standard of information provision. In contrast to negligence, no harm need occur as a result of the trespass because the interference with a person’s autonomy is sufficient.10
In practice, however, we see that the concepts of consent and negligence are frequently conflated and confused.11 The term ‘informed consent’ combines the requirement that the competent patient gives permission for the procedure and that in doing so the doctor communicates risk to the expected standard. Neither of these legal concepts adequately supports pregnant people’s autonomy, ethical practice is required to achieve this.
Doctors are familiar with navigating consent and the duty to warn of risks with respect to procedures. Procedures usually reflect something done to the patient to manage a medical complaint. Proposing that vaginal birth (which is viewed as a natural and inevitable end to a pregnancy) requires consent, challenges our concept of both birth and consent. To some, it threatens the ‘naturalness’ of vaginal birth, potentially leading to increased medicalisation of birth and an increased caesarean section rate.12
If we view information giving within the doctor-patient relationship as part of discharging that duty to warn, rather than an issue of consent, it is less problematic and more aligned with the cases of both Rogers v Whitaker and Montgomery v Lanarkshire.13 14 The obligation to provide information to patients exists separately and is neither removed nor reduced by the unavailability of therapeutic alternatives. We are fortunate to have options available to women who may, when empowered with knowledge about their bodies and birth, choose which consequences they are willing to endure and live with long term.
The reasonable patient would want to know about birth and the consequences of it, and as a result there is a duty to warn of the risks. Some women will have particular concerns or risk factors and require more detailed information on some aspects of birth compared to others. This does not necessarily require a consent form but rather an intentional and tailored discussion throughout antenatal care with the aim to inform patients about the journey ahead.
While some individual procedures during vaginal delivery may require consent, vaginal delivery itself does not. During labour consenting (which may be written or verbal, depending on what is occurring) or keeping a patient informed of what is happening (in an emergent situation) is the end of a process that should have begun long before labour. Hawke15 has recently argued that: ‘Empowering a woman with the language of consent and offering women choices is key to empowering her in her transformation to motherhood.’
We believe this model conforms to this philosophy by recognising that consent and choices cannot occur without respectful communication within a therapeutic partnership.
The problem is ensuring these early discussions happen, and appropriately. Patient decision-making aids (PDAs) for labour and birth have a good evidence-base showing largely encouraging outcomes. Using PDAs with pregnant persons can increase their knowledge, decrease anxiety, and decrease decisional uncertainty and regret.16 17 18 There is some work to indicate that using PDAs early (Trimesters 1 and 2) is most helpful.11 Despite this, they do not seem to be used widely.note]Smith MK, Levy KS, Yudin MH. Informed Consent During Labour: Patient and Physician Perspectives. JOGC. 2018;40(5):614.[/note] Additionally, if, as Dietz & Callaghan19 note, there is a decline in pregnant people who will see a doctor during antenatal care, then finding the opportunity to have this discussion appears difficult. We need to consider the ways in which robust information is provided to pregnant people and their families, before labour, using tools such as PDAs. Early conversations with full disclosure not only help patients and their families understand the process and what they may have to make decisions about, but also helps health professionals understand patient values and goals, which can aid in their clinical decision making. Especially when the experience of not feeling listened to is something generally associated with those who experience birth as traumatic.20 21
It is not always possible for the clinician providing care during labour to have had these conversations with the pregnant person, but it is important that patient has had them. Clinicians can ensure they communicate clearly with a pregnant patient and seek consent where necessary, but this is the last step in care conversations. We must make efforts to ensure this process begins much earlier and robustly. This is likely to best be supported through interprofessional collaborations, PDAs and health system resourcing and support.
- Barriers to using PDAs in Australian obstetric practice/maternal care.
- Most effective timing of use of PDAs regarding birth and labour options.
- Comparison clinician versus other health professional delivery of option/risk information (via PDA or other means) early in pregnancy (efficacy, cost-effectiveness, etc).