Protecting Informed Consent And Respecting Bodily Autonomy In Labour And Birth

Background

In Gawthrop v Bendigo Health [2026] VSC 157, the Supreme Court of Victoria examined the context surrounding informed consent. The plaintiff presenting to hospital in labour was advised to undergo a vaginal examination as part of routine care for admission to the birthing unit. When she refused in accordance with her birth plan, she was told that she would neither be admitted to hospital, given pain relief, or her own private midwife called (noting it was after hours). The plaintiff eventually agreed to undergo the examination after repeated requests from the birth unit midwife.

A central issue in this case is whether this agreement amounted to valid, informed consent.

Informed consent

The plaintiff argued that she had not given ‘informed consent’, particularly in view of the terms of the defendant’s Informed Consent Policy.

As the Court observed, the hospital’s own policy required,[1] at a minimum, that:

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

The Court found that the above requirements were not met, and, in those circumstances, the defendant was found to have breached the standard of care as defined by its policy.

In particular, the circumstances in which the plaintiff was asked to consent undermined the voluntariness of any apparent agreement. The ultimatum, that she would not be admitted, provided pain relief, or have her own private midwife contacted unless she agreed to a vaginal examination, was inconsistent with the provision of a real and meaningful choice.

The importance of choice

Although the plaintiff had subsequently consented to several vaginal examinations during the course of her labour, the claim focused specifically on this initial examination, where informed consent was not obtained.

To fully understand the case, it is important to distinguish the circumstances surrounding the examinations to which the plaintiff consented from those in which she did not. In this instance, the plaintiff was not presented with a genuine choice, effectively being given no real option but to undergo the examination. This approach was particularly inconsistent with her birth plan, in which she had expressly declined all vaginal examinations except where there was an urgent medical necessity.

At [560], the Court found:

However, the most striking aspect of all of the above is the overwhelming impression that must ultimately have been conveyed to the plaintiff that she had no choice other than to submit to a vaginal examination. In that regard, it is at no point apparent that any advice was given concerning at least the following –

(a) what any other option might have been other than to simply submit to a vaginal examination;

(b) having regard to the plaintiff’s presentation, what the future course of her labour might be expected to be;

(c) what risks the plaintiff or her baby might face in the near future; and

(d) whether, she might be able to simply remain in the birthing suite under the care of the hospital midwives (whose standard of care was said to be no different to that provided by a Mamta midwife), presumably until she either commenced pushing and/or a pressing medical reason emerged (as it later did, more than once).

The Court placed significant weight on the plaintiff’s personal circumstances, recognising her particular vulnerability arising from a history of severe domestic abuse. For this plaintiff, these concerns were further intensified by her prior experiences and anxieties surrounding vaginal examinations, including the distress she experienced in witnessing her sister’s birthing process.

Importantly, the Court noted that at no point during the birthing unit midwife’s interaction with the plaintiff was any ‘urgent medical reason’ identified. The evidence demonstrated that there were no concerns for either the plaintiff’s health or that of her unborn child at the relevant time. In these circumstances, the plaintiff’s right to make an informed choice about her treatment was effectively denied.

The Court also acknowledged the inherently invasive nature of vaginal examinations during labour. Such procedures can be both uncomfortable and painful and necessarily involve a significant intrusion upon bodily integrity.

The Court took issue with the multiple attempts by the midwife to secure agreement from the plaintiff:

[393]: (d) in the period to which I have referred it is likely that there were at least half a dozen requests made by Ms Alexander for the plaintiff to undergo a vaginal examination and it could well have been seven or eight occasions, as indicated by the plaintiff and Mr Gawthrop in their respective evidence;

(e) at no point during those various interactions was any urgent medical reason for a vaginal examination identified;

(f) both the plaintiff and Mr Gawthrop became more distressed and bewildered as time went on and Ms Alexander became more implacable and essentially fatalistic;

The Court found that, prior to eventually acquiescing, the plaintiff had consistently refused the examination. Her eventual agreement must therefore be understood not as a product of free and voluntary choice, but as the culmination of sustained pressure in circumstances where she was in labour, in pain, and fearful of being denied care.

Respecting patient autonomy

The case also highlights a broader systemic issue in the provision of maternity care, in particular, the manner in which the first examination was presented to the plaintiff. Rather than being offered a range of options consistent with patient-centred care, the plaintiff was effectively presented with a single pathway. The absence of an alternative pathway, and the conditioning of care on agreement, undermined her autonomy.

A central tenet of midwifery care is to be ‘with woman’ and requires that patients be supported to make informed decisions free from coercion. Genuine consent is not simply a matter of acquiescence; it requires that patients are given options and that those choices are respected.

Implications for midwifery practice

This decision carries significant practical implications for midwifery practice, particularly in reaffirming the central importance of valid, voluntary, and informed consent. It also highlights the ongoing challenge of adhering to clinical guidelines without undermining a woman’s autonomy during labour.

From the birthing unit’s midwife’s perspective, her actions may be understood as an attempt to comply with hospital protocols governing admission and clinical risk management, which were intended to promote the safety of both mother and baby. However, those protocols operated alongside, and did not displace, the hospital’s own Informed Consent Policy.[2] The policy required that consent be given voluntarily, without pressure, and on the basis of a genuine choice. Those requirements were not found to have been met in this case.

The decision demonstrates that difficulties may arise in applying clinical guidelines in practice, particularly in the time‑pressured context of labour. Even so, adherence to protocol cannot justify a failure to obtain valid consent. As the management of labour becomes increasingly structured by policy, clinicians must ensure that those policies are implemented consistently with the patient’s right to make her own decisions, and that care remains centred on the patient. It is therefore important that a midwife presents all available treatment pathways to a patient, including the indications, risks and benefits for each. With that information available to them, a patient can provide valid and informed consent when making their decision.

Footnotes

1. At [447].

2. At [447(a)].

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