It is well established that giving treatment without consent, absent emergency or necessity, is actionable in tort. The options are to sue in trespass or negligence, but sometimes factual scenarios are not so black and white and whether there is a legal remedy in the grey areas is an interesting issue.
Take for example a woman in the advanced stages of labour who has been in the labour process for days, sometimes in active labour and at other times not. She is young, but already has what many would consider a large family. She is in a public hospital and has been cared for by various midwives, obstetric registrars and interns during her admission. When it becomes apparent that she will require emergency caesarean section, consent forms are prepared for her to sign.
In the ensuing conversation with the registrar, frustrated and exhausted she says words to the effect “tie my tubes while you’re in there”. The registrar engages the woman in a conversation about her desire for sterilisation and informs the woman that such a course would be permanent. The woman says that, although she’d not considered it previously or discussed it with her partner, she wants the ligation done and the consent form is amended to include tubal ligation before the woman signs the form.
Nothing more is said about the ligation and the woman is discharged from hospital a few days after the caesarean. It is not until a few months after the birth that the realisation of having been sterilised hits home and the woman immediately seeks advice about a reversal of the procedure. When she is advised a reversal would be costly and uncertain she becomes depressed.
The woman maintains that she was sterilised against her wishes; that her comments made during labour should not have been acted upon. Does she have a remedy in law in Australia?
For consent to be valid it must be voluntary, properly informed and the person must be competent at the time the consent is given. There is no debate the consent was given voluntarily in this fact scenario. An absence of consent may flow from the incapacity of the patient. There could be some argument as to whether the pain of labour could render her temporarily incompetent to consent. It would be undesirable to have a situation where a woman was considered unable to consent to any procedure simply because she was in labour. However, it is recognised that the level of understanding required may vary with the nature of the decision to be made, so maybe it is that the decision for sterilisation is one that is not appropriately made during labour? There also remains the issue of whether the woman was properly informed.
So, could the woman sue in trespass? In order for a claim in trespass to succeed the woman would need to be able to demonstrate that she had not been advised in broad terms of the nature of the procedure to be performed. Once general information has been given about the procedure, the issue becomes whether there lies an action in negligence for failure to properly discuss risks and implications of the procedure. In this example, the woman was provided general information. There may be issues about her capacity to consent to such a permanent, elective procedure at the point in time her consent was sort ut whether that is sufficient to invalidate consent is uncertain.
Could she sue for negligence, a ‘failure to warn’ claim? The adequacy of the information given to the woman is paramount, but as suggested, so is the timing of the provision of information and seeking of consent. For most lay and professional people there would be some concern that such a monumental decision as sterilisation could be made in the throes of labour without prior discussion or consultation.
Most women who have experienced labour, particularly a long and complicated labour, will attest to moments of irrationality or lack of clarity during their labour and many will relate stories of having said things that in retrospect they did not mean.
The Royal College of Gynaecologists and Obstetricians in the UK publishes Clinical Governance Guidelines which state that doctors should defer consent to an irreversible procedure during labour; an exception may be made for tubal ligation if there has been significant consultation in the antenatal period.
Although the provisions in the guidelines touching on tubal ligation assume a discussion has taken place at least 6 weeks prior to the due date. The Royal Australian and New Zealand College of Gynaecologists and Obstetricians has no formal guidelines on the matter.
Thus, it would seem that there is an arguable case that competent professional practice required that consent for tubal ligation not be sought during active labour; that if the procedure were to be done during caesarean section that discussions should have occurred in the antenatal period.
Interestingly, in Europe the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) articulates the responsibility women have to bear and raise children and recognises that the number and spacing of a woman’s children has an impact on her life and physical and mental well-being. This has been formulated into a right to choose the spacing and number of children a woman wishes to have and has been used in Europe to assist women in bringing claims of forced sterilisation. Australia is a signatory to CEDAW but has not translated the relevant recommendations into legislation so the provisions do not assist women in Australia seeking a legal remedy for what they consider was sterilisation against their wishes