By Louise Cantrill, Partner, Tamara James, Associate and Lachlan Wong, Paralegal

Summary

The Supreme Court of Victoria’s recent decision in Gawthrop v Bendigo Health provides a stark reminder that healthcare providers and their insurers must have careful regard to their policies when carrying out procedures or risk vitiating their patients’ consent.

Ms Gawthrop advanced claims in assault and/or battery and, further or alternatively, negligence surrounding a vaginal examination performed during labour. At trial, the Court held that a lack of consent amounted to battery and assault, and also negligence. Bendigo Health appealed, maintaining that the plaintiff gave verbal and implied consent for the vaginal examination. The appeal was dismissed, and the trial judge’s decision was upheld.

Background

The Plaintiff was accepted into the Mamta program offered by Bendigo Hospital. Mamta offered continuity of care around pregnancy and birth via Mamta midwives, who were distinct from hospital midwives. The plaintiff prepared a birth plan that listed her wishes as to how she wanted her birth to be conducted. This included a statement around vaginal examinations (VE) to the effect of declining all vaginal examinations unless there was an urgent medical reason and requiring her informed verbal consent to be given prior.

The birth plan was accepted by both the Hospital and Mamta program after discussions. Further, Mamta midwives allocated to the Plaintiff had repeatedly reassured the Plaintiff that vaginal examinations would occur only if medically necessary. Lastly, the Plaintiff was never told that after hours she may be required to undergo a vaginal examination for administrative reasons.

Upon arriving at hospital, Ms Alexander, a hospital midwife, attended to the Plaintiff. She had already read Ms Gawthrop’s birth plan, and repeatedly asked to perform a vaginal examination, considering it a requirement per hospital policy even though:

• There was no urgent medical reason provided or inferred from the situation;
• The Plaintiff repeatedly refused the vaginal examination and requested a Mamta midwife attend to her instead;
• There was a positive result from an Amnisure test (confirming Ms Gawthrop was in labour).

Ms Gawthrop reluctantly acquiesced to a vaginal examination after Ms Alexander explicitly, and repeatedly, stated that unless a vaginal examination was conducted, the Plaintiff would not be admitted, nor would she receive pain relief, and nor would a Mamta midwife attend to her.

Issue

The Plaintiff’s negligence claim was pleaded across multiple grounds. The Court found it unnecessary to resolve all of them, holding liability was established on two independently sufficient bases.

Firstly, a breach of the standard of care. The Court held that the standard of care was to be defined by the Defendant’s Informed Consent Policy which set out various requirements the hospital should meet. The Court found each of those requirements had not been met:

• The Plaintiff’s “consent” was not voluntary based on her repeated refusal and eventual submission;
• Ms Alexander plainly exerted pressure by stating further care was conditional upon completing the VE; and
• No genuine choice or alternative was offered as the Plaintiff was never advised that hospital midwives could care for her in the birthing suite, or that non-opioid pain relief did not in fact require a prior VE.

Secondly, the Court upheld a further negligence finding on the basis of ‘dual messaging’. Dual messaging was described as allowing the Plaintiff to develop the expectation that no vaginal examination would be required, as per her birth plan, while failing to advise that hospital policy could in fact operate to require one. Here, the Judge examined various policies and guidelines extensively, all of which contributed to this ‘dual messaging.’ These included:

• The Mamta Guidelines providing that birthing ward staff should contact the Mamta midwife if the woman is in active labour;
• The Labour to Vaginal Delivery Protocol, that while contemplating VEs for certain purposes, did not in fact mandate one before non-opioid pain relief could be administered; and
• The Safer Care Victoria guidelines that look to promote woman-centric care, where it was found that had those guidelines been consulted, it would have been apparent that the Plaintiff’s admission and ongoing care need not have been contingent on the VE at all.

Causation was also established. Had the Plaintiff’s wishes both on the day and in her birth plan been respected, she would most likely have continued labouring in the birthing suite without a VE, or the issue would have been escalated to senior staff. The Court held that but for the defendant’s negligence, the Plaintiff would have avoided injury.

Finally, the Court addressed the Defendant’s pleaded defence under section 59 of Wrongs Act 1958 (Vic) – that their conduct was consistent with widely accepted professional practice. However, this failed to be made out on two grounds. First, referencing the above policies and guidelines again, the evidence did not establish that Ms Alexander’s approach was validly supported. Second, as a matter of law, section 60 of the Wrongs Act provided that the section 59 defence is not available when responding to a claim that a defendant failed to warn a person of risk. As the case at hand related to a failure to warn during the antenatal period, section 60 operated to render the section 59 defence inapplicable.

Claim in assault and/or battery 

The Court held that the Plaintiff did not freely and voluntarily consent to the VE. The Court rejected the defendant’s submission that consent was established once the Plaintiff had been advised of the procedure.

The Court considered that Rogers v Whitaker, while addressing risk disclosure in negligence, does not preclude a battery claim where a patient did not freely give consent, considering that a person can become “resigned to their fate” such that no true consent exists. The Plaintiff’s eventual submission – after two hours of escalating pressure, the progressive removal of every alternative, and no offer of any other option amounted to resignation and not consent. As such, the Court was satisfied that the battery claim was made out.

Takeaways

The Plaintiff succeeded on both her battery and negligence claims and was awarded general and special damages.

A lack of consent in medical procedures can be vital to establishing liability both in terms of assault and battery, as well as negligence. The case largely raises three practical concerns. First, a hospital’s internal policies around consent, once adopted, can serve to set a legal standard of care for negligence. Second, hospitals can be found negligent if they do not sufficiently warn their patients about policies and programs and create incorrect expectations in a patient’s mind. Lastly, Gawthrop generally reveals how consent can be judged in accordance with any relevant hospital and government policies as well as a patients’ clear prior statements.