Obstetrics and Midwifery Medical Negligence Claims and Consent
Consent in obstetrics and midwifery has practical and real life challenges, often leaving hospital trust exposed to clinical negligence claims and mothers left with a sense of no control over what happened to them and their baby.
There can be a contradiction in how this is managed in practical terms. The courts will say patients should be given ample time to consider what they are consenting to but what happens in practice can be different. The cases we see can be where women are taken into labour and the consent process is rushed.
There is much emphasis on patient centred care. So what factors a court will take into account where a mother says I did not know what I was consenting to or did not consent to having a particular procedure in relation to the birth of her baby?
Having a discussion immediately before elective surgery about the risk and benefits is obviously not ideal, often on the day or even an hour before the procedure. Generally, if the elective procedure is not urgent then discussion about consent needs to happen well in advance.
The basic principle is consent discussion has to take in ample time as the mother needs time to consider what she is consenting to and she needs time to comprehend the risks and benefits of any elective procedure as well as her options as to alternative procedures.
Where a mother says she wouldn’t have gone through the procedure but for the fact that she was asked to consent last minute, we have to ask was everything done by the obstetrics and midwifery team to ensure a proper discussion with the mother in a timely manner?
Social and psychological realties means it is harder for patients to challenge what they are being told. Patients generally trust what they are being told by those caring for them. However, a patient needs time to consider if there are reasonable alternatives to surgery. There is an obligation on the clinician to adequately explain to the patient what they are consenting to.
We act for many clients whose first language is not English. For them there is an added challenge and a need to ensure not only are they given enough time to consider what they are consenting to but it is imperative that the patient has had the aid of an appropriate, as well as competent interpreter to avoid misunderstanding and future litigation.
We often deal with cases where the mother has lost her baby due to stillbirth or the baby is born with long term health issues. Often, the mother might say if she had known of the risks of the elective procedure she may have said no to the procedure. This is where we have to look at the consent process.
Our role as clinical negligence practitioners with such cases is to ask when the mother gave consent was she given all of the information about material risks and alternative treatment?
Did she have enough time to comprehend what she was consenting to? Did she understand the risks and benefits? More importantly, did she give an informed consent? Who was obtaining consent? Was appropriate care taken to ensure the mother was made aware of the risks and benefits of the procedure in her own language and when she was able to make sense of the information?
With these cases the outcome can leave the mother, and also the father, with severe mental anguish for years where say they lose their baby or the baby is born but the baby’s quality of life is compromised due to the procedure.
Consent process is more than just being told or signing a consent form, it is a dialogue between the medical professional and the patient.
Language barrier cannot be an excuse for not obtaining informed consent. There is a case with regards to a discussion between a mother with limited English and a midwife. Her baby was constantly crying and there was a 20 minutes explanation by the midwife with the help of a friend of the mother doing the translation.
After the conversation the mother and baby were discharged but the baby continued to cry so the father sought further medical help. The baby ultimately died of brain trauma.
We also deal with cases involving consent and epidurals. Epidurals are often given at the mum’s request. Adequate pain management plans should involve discussion of the options. The same applies to C-sections. If there is consent during labour then the mother will be exhausted. She may not have the chance to comprehend what she is consenting to. This could leave many questions on whether she was in a fit mental state to consent.
Consent process is also personalised process tailored to the patient. She may only be able to listen in between contractions and is likely to be tired.
Our advice as to what women should ask when they are pregnant-
Ask questions when you see your midwife, your GP and obstetrician. Ensure there is a discussion specific to you well in advance of the birth so you have time to comprehend the risks and benefits to potential outcomes and situations during labour. If English is not your first language ensure this is noted by those in charge of your case so that when you do have discussions about options and consent you understand what you are consenting to.
To conclude, vaginal birth is usually the preferable method of birth but if this is not viable other alternative options should be discussed during the 9 months so that the mother gives informed consent after understanding the risks and benefits. This way, she is better informed and has some control. Also, the obstetrics and midwifery team are not at risk of litigation on the question of consent.
If you would like to have an informal chat with our Clinical Negligence experts in confidence to see if you have a viable claim then please complete the contact form on our website and we will give you a call back at a time convenient to you or please call/ contact Daxa Patel, Clinical Negligence Partner & Solicitor by contacting us on 0330 107 0107 or email email@example.com. Once we are contacted by you, one of our helpful team members will contact you. Please note we have a team of lawyers who speak many languages including English, Polish, Romanian, Russian and Lithuanian.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.
Published by: Daxa Patel
Partner & Solicitor
IMD Solicitors LLP