Childbirth: Your rights and when they may be broken, with reference to the recent decision of Gawthrop v Bendigo Health [2026] VSC 15

An opinion piece by Associate Isobel Hall

Childbirth is often a period of significant vulnerability in a woman’s life. In a recent decision of the Victorian Supreme Court, a finding has been made awarding a woman compensation, after finding that the hospital she presented to had been negligent and committed an act of trespass to her body, by failing to obtain her proper consent upon her presentation with signs of labour.

The case of Gawthrop v Bendigo Health [2026] VSC 157 involves the birth experience of a first-time mother, Larissa Gawthrop, who was well researched and prepared prior to her labour. Larissa had completed a detailed birth plan and during her antenatal period was under the care of a continuity of care program with the Bendigo Hospital (“the hospital”). In her birth plan, which had been shared with the continuity of care program, Larissa had noted clear instructions that she did not want to submit to a vaginal examination unless there was an urgent medical need to do so. These instructions had been formulated as a result of her own personal experience which included significant domestic violence.

In the days leading up to her birth, Larissa had been in communication with her midwife through the continuity of care program, explaining that she had started to experience Braxton Hicks contractions. Larissa’s symptoms were monitored and ultimately on 17 November 2020 Larissa was advised to present to the hospital.

Upon Larissa’s presentation to the hospital, she was advised that her birth plan had been reviewed. She was then advised that the midwife at the hospital needed to perform a vaginal examination. Larissa declined this procedure, as at the time there was not an urgent medical requirement for it to occur.

Over a period of two hours, the same midwife at the hospital asked Larissa on approximately eight occasions to conduct a vaginal examination. During this time, Larissa was not advised of alternate options available to her, was told that she was not able to be admitted to the hospital, receive pain medication, have a bath, have her midwife from the continuity of care program called or undertake further tests for her labour unless she submitted to the vaginal examination.

On the second hour of presentation to the hospital and during a time when Larissa had felt scared, upset and under pressure to consent, Larissa submitted to the request for a vaginal examination. During the performance of this procedure Larissa reported crying and shaking and her husband gave evidence that she looked defeated. Following this, Larissa experienced a significant aggravation to a psychiatric injury, which had a significant impact on many aspects of her life.

In determining the case, Justice O’Meara accepted that the midwife who performed the vaginal examination in some compartment of her thinking believed that Larissa had consented to the examination and believed that this examination was necessary and in accordance with hospital policy and without doing this she was unable to offer Larissa pain medication or further treatment. In noting this however, Justice O’Meara concluded that regardless of the hospital’s policy and the midwife’s perception of the events, the conduct was not in accordance with the legal framework for consent, which must be freely and voluntarily provided.

Justice O’Meara noted, “Generally speaking, the common law respects and preserves the autonomy of adult persons with respect to their bodies and those rights can only be altered with the consent of the person concerned.”

It was noted that in circumstances where Larissa had felt pressured, coerced and had not freely consented to the vaginal examination, there had been a trespass to her body and the hospital by virtue of its staff had been negligent.

The decision of Justice O’Meara is a landmark decision in medical negligence litigation and opens doors for other woman who have felt at some stage during their birth they did not freely or voluntarily consent to a particular procedure that was performed and as a consequence have suffered a physical or psychological injury.

If you or someone you know has experienced a medical procedure during birth that you did not feel was consented to, MEJ encourages you to reach out to one of their experienced medical negligence lawyers for a confidential discussion in relation to pursuing a claim for compensation.