Background
As a child, the plaintiff had been subjected to domestic violence by her father. She had also previously supported one of her sisters in her birth and had found the experience confronting. In particular, she had witnessed her sister undergo a lot of vaginal examinations. The plaintiff had decided she would prefer a ‘physiological’ (i.e, ‘low intervention’) birth.
In the course of her antenatal care, the plaintiff developed a birth plan. Among other things, the plan stated that the plaintiff declined all vaginal examinations unless there is an urgent medical reason to do so. It went on to state that informed verbal consent must be given from the plaintiff prior to any examination.
When she presented to the maternity ward in labour, the attending midwife requested to undertake a vaginal examination. The plaintiff repeatedly declined. The attending midwife insisted that the examination was necessary for determining active labour as well as necessary for the plaintiff to be admitted to the ward, to be given pain relieving analgesia, and for the hospital to contact her Mamta midwife. After a period of approximately two hours of repeated requests by the attending midwife, during which the plaintiff’s distress was increasing, the plaintiff ultimately acquiesced to an examination. She was then admitted, provided pain relief, and her Mamta midwife was contacted.
The plaintiff subsequently initiated court proceedings, claiming that the defendant hospital was negligent in, most relevantly, failing to obtain the plaintiff’s informed consent in respect of the examination. The plaintiff also claimed negligence in relation to the defendant’s failure to contact the Mamta midwife without requiring an examination, failing to use other means to ascertain the progress of her labour and failing to respect the plaintiff’s stated birth preferences. It was noted that the Plaintiff had required other vaginal examinations in the course of her delivery but brought proceedings only in relation to the failure to obtain consent for the initial examination.
The plaintiff claimed consequential psychiatric harm, namely, the reactivation of previous psychological distress and pre-existing post-traumatic stress disorder, anxiety including flashbacks, impairment of mood, libido and behaviour. The plaintiff sought damages for pain and suffering, loss of enjoyment of life, special damages and aggravated damages. The defendant denied that the conduct was negligent and relied on s 59 of the Wrongs Act 1958 (Vic), claiming that the attending midwife acted in a manner that was widely accepted as competent professional practice in the circumstances.
Key findings
The Court determined that the plaintiff did not provide free and voluntary consent to the vaginal examination. The circumstances leading up to the examination, including repeated and layered justifications presented by the midwife and the lack of a genuine choice for the plaintiff, indicated that her eventual consent was coerced and not freely given. The Court found that the sexual, emotional, and physical nature of the procedure compounded her distress and significantly impaired her ability to give voluntary consent. Therefore, the Court found that it followed that the plaintiff’s claim in assault and battery must be accepted.
The Court also found that in conducting the examination, the hospital had breached the standard of care established by its own Informed Consent Policy, which required that consent be voluntary and free from coercion. The Court further held that the scope of the duty of care extended to antenatal disclosures. It found that the failure to warn the plaintiff of the likelihood that a vaginal examination might be required in non-urgent circumstances deprived her of the ability to make informed decisions about her care pathway.
The plaintiff was awarded damages of $275,000 and agreed special damages of $5,288.55. The Court declined to award aggravated damages, finding that while the conduct caused the plaintiff significant psychological harm and constituted both negligence and battery, it did not rise to the level of contumelious disregard, high-handedness, or malice required to justify such damages.
Comment
The decision will no doubt concern doctors and midwives working in obstetric settings, who are increasingly encountering patients presenting with detailed birth plans, heightened expectations of bodily autonomy, and a greater willingness to refuse or question routine interventions. However, a clinician’s view as to the reasonableness or clinical desirability of a patient’s preference does not justify overriding or undermining that preference.
Although the clinicians involved gave evidence that they believed they were acting appropriately in seeking to assess the progress of the plaintiff’s labour, the Court’s analysis centred on the effect of their conduct on the patient, rather than their subjective intentions. Critically, the absence of clinical urgency or medical necessity meant the plaintiff was entitled to refuse the examination without forfeiting access to other aspects of care. The decision also makes clear that purported compliance with institutional processes or policies will not shield a defendant where those processes operate in a way that compromises voluntary and informed consent.
More broadly, the decision reflects a growing trend of claims in the obstetric context grounded in psychiatric injury, underscoring that patient experience is not merely a matter of bedside manner but a potential source of legal liability. For practitioners, this reinforces the need to ensure that consent is not only obtained but obtained in circumstances that are demonstrably free of pressure or coercion.
