Court finds hospital liable after patient pressured to consent to unwanted vaginal examination

Key messages from the case

Voluntariness is a critical requirement of valid consent. Even where a patient ultimately agrees to a procedure, consent may not be valid if it is given in response to pressure or where there is no real opportunity to refuse. If consent is not freely given, this may constitute assault.

The decision reinforces that hospital policies and protocols do not override these legal requirements. Clinicians must exercise judgement and consider whether a procedure is clinically necessary and whether care can be provided in another way if a patient declines.

Details of the decision

Ms G was a first-time mother who, after witnessing her sister undergo multiple vaginal examinations during labour, decided she did not want the same experience for herself.

She enrolled in a continuity-of-care midwifery program at a regional hospital and attended antenatal classes. She developed a detailed birth plan that emphasised a physiological (i.e. low intervention) birth. It included a clear refusal of vaginal examinations unless there was an urgent medical reason and with informed consent. She also expressed a strong preference for informed discussions about any intervention and for her choices to be respected wherever possible.

These preferences were reviewed with midwives during the antenatal period, and she was reassured that her birth plan was achievable.

Events during labour

On the evening she went into labour, Ms G made several calls to the maternity ward before attending in person with her husband at approximately 11:05pm.

On arrival, the attending midwife reviewed her birth plan and performed initial assessments. Ms G consented to some aspects of care but declined a vaginal examination, as well as other interventions.

Over the following two hours, the midwife repeatedly advised that a vaginal examination was required before Ms G could be admitted, receive pain relief, or have her continuity-of-care midwife contacted. No urgent clinical indication for the examination was identified at any point and expert evidence in the case confirmed this.

During this time, Ms G experienced increasing pain and requested pain relief. She and her husband also repeatedly asked for her continuity-of-care midwife to be called. The admitting midwife said Ms G had to have a vaginal examination to action these requests .

At approximately 1:10am, after being told that care would not be provided unless she agreed, Ms G consented to the examination. The examination was then performed, after which she was admitted, her continuity-of-care midwife was contacted, and pain relief was provided.

Free and voluntary consent

The central issue in the case was whether Ms G had given free and voluntary consent to the vaginal examination.

The attending midwife believed that hospital policy required Ms G to undergo a vaginal examination to be admitted to hospital, receive pain relief and to have her continuity-of-care midwife called. The court found the impression conveyed to the patient was that she had no choice other than to submit to a vaginal examination. It was likely Ms G had “simply” been told that she had to have a vaginal examination to check the progress of her labour, without further discussion and any mention of the hospital policy. The circumstances in which the examination occurred involved sustained pressure over a prolonged period. The patient’s birth preference was disregarded.

Outcome

The court found that the patient’s consent to the vaginal examination was not freely and voluntarily given. Although she ultimately agreed to the procedure, this occurred in circumstances where she had no real opportunity to refuse and was effectively left with no genuine choice. As a result, the examination constituted assault.

The court also found the hospital negligent because it breached the standard of care expected, including as outlined in its own policy. The policy stated that:

• consent must be given voluntarily
• the health professional must not exert pressure on the patient
• a genuine choice must be offered.

The court entered judgment in favour of the plaintiff and awarded her $280,288 in damages.

Key lessons

You must ensure that patient consent is freely and voluntarily given. A patient must have a genuine opportunity to refuse a procedure.

Withholding admission, pain relief or access to other clinicians to obtain consent may invalidate that consent and expose you to liability.

Do not assume that a patient’s eventual agreement confirms valid consent. Where a patient agrees after sustained pressure or while distressed, consent may not be valid.

Respect clearly expressed patient preferences, particularly where these have been documented and discussed in advance. If you have concerns about being able to meet these preferences, raise this with the patient and explain the reasons.

Consider whether a procedure is clinically necessary and whether care can be provided in another way if a patient refuses.

Where disagreement arises, escalate appropriately. Repeating the same request is unlikely to resolve the situation and may increase the risk of coercion.

References and further reading

Avant factsheet: Consent: the essentials

Avant factsheet: Capacity: the essentials