Consent in birth trauma cases – your right to say no

When you’re in labour, feeling exhausted, in pain, and vulnerable, the last thing you want is to feel pressured into a procedure you’ve already explicitly refused in your birth plan. Of course, sometimes your hospital will return to an issue if your clinical situation changes, and that can be medically appropriate. But there’s a clear legal line between keeping you informed and depriving you of your right to choose. When a hospital crosses it, the law is on your side.

A baby’s birth should be a moment of pure joy. Sadly, when a hospital ignores a family’s birth plan and a patient’s choices, not to protect you and your baby, but to suit its own procedures, that joy can quickly turn to distress.

Not to be dismissed as a wish list, birth plans and pregnancy discussions with your treatment team are a critical tool to set you up for safety, respect and autonomy during one of life’s most vulnerable moments. These discussions and documents should also cover what issues or risks might come up and how they may be dealt with.

While emergencies happen, informed consent should never be optional. In a recent case, the Victorian Supreme Court found a hospital liable for damages arising out of assault, battery and negligence when a patient was pressured into an examination she had explicitly declined in her birth plan. Admission, pain relief and access to her own midwife were all withheld until she submitted. That’s not consent. That’s not reasonable care. Despite her clear instructions in the form of a birth plan explicitly stating that she declined all vaginal examinations unless there was an urgent medical reason, hospital staff performed a vaginal exam during labour, after leaving the patient with no real choice but to submit to the unwanted examination. This case resulted in a significant psychological injury to the patient and ultimately an award of damages against Bendigo Health.

If something like this happened to you, here’s what you need to know. At Maliganis Edwards Johnson, we help patients who have suffered injury through negligence, or assault or battery, in Canberra and NSW hospitals or medical facilities, to understand their legal rights. Here’s what you need to know.

Educate yourself during pregnancy

During pregnancy, it is a good idea to educate yourself on the hospital where you will give birth. This may mean participating in education programs or courses at the hospital or externally. You should also find out about hospital policies, referral pathways and limits on the hospital’s service capabilities that may be relevant during labour. It’s important that you choose a supportive team and an appropriate location for your birth, and that you inform yourself of your rights, risks and options.

There is also a lot of information available on the Birth Trauma Australia website, a charity organisation MEJ has supported since 2020.

Your consent rights during labour

You have the right to refuse any procedure at any point during labour, even after you’ve previously agreed to it. Consent must be free and voluntary.

Hospitals will often ask you to sign forms before planned procedures like a caesarean section or induction, but your birth plan also carries legal weight. A clear written refusal, like “I decline all vaginal examinations unless there is an urgent medical reason”, is a legally meaningful document, not a wish list. Keep a copy.

If staff told you one thing during your antenatal appointments and then did another when you arrived in labour, that matters too. Courts have found hospitals liable for exactly that kind of inconsistency, as it is a negligent dual messaging that can cause harm.

Was what happened to you battery, negligence — or both?

Battery occurs when a medical professional performs a procedure on you that you did not freely and voluntarily consent to. It doesn’t matter whether they meant well. If you said no, or were unreasonably pressured into saying yes, and the procedure went ahead anyway, that may be battery.

Assault is the threat or attempt of violence that creates a fear of imminent harm, while battery is the actual, intentional, and unlawful physical contact or harm inflicted on another person.

Example: A vaginal examination is performed after you have explicitly refused one in your birth plan, and you only relented because you were told you wouldn’t be admitted otherwise.

Negligence is about a failure of care, such as the hospital doing something incorrectly, missing a warning sign, or failing to properly inform you of risks. Crucially, it also includes failing to warn you that hospital policy might not align with what your preferences or needs for your birth.

Example: Your midwife reassured you throughout your antenatal care that your birth plan preferences were achievable, but no one told you that after-hours hospital policy could effectively override them.

Many birth trauma cases involve both negligence and assault/battery.

What to do now

If you’re reading this because something felt wrong during your birth, trust that instinct. You don’t need to have all the answers. That’s what we’re here to help you get.

Having experienced legal representation means getting someone who can review your medical records, engage expert witnesses, and assess whether what happened to you fell below the standard of care you were owed.

At MEJ, we act for medical negligence clients in Canberra and NSW on a no win, no fee basis for our legal professional fees. The principles established in cases like the one outlined above are relevant across Australian jurisdictions, including yours.

Call us on 1800 570 778 / 02 6257 2999 or contact us online for a free, confidential consultation.