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Elective Caesarean Sections

Elective Caesarean Sections

One in three Australian babies is born by caesarean section (C-section).  C-sections may be either elective or emergency.  It is a major surgery involving an incision made through the mother’s abdomen and uterus in order to deliver the baby.

Australia has one of the highest rates of caesarean births in the world and there is a perception that it is unnecessarily high.

The World Health Organisation (WHO) recommends C-sections should only be performed when medically necessary. It has stated “there is no justification for any region to have higher caesarean rates than 10-15%”.  However, Australian C-section rates are double the WHO recommended levels.

According to an SBS documentary in July 2015

out of 137 countries that report their rates, Australia’s is one of the highest, with 32 per cent of all births delivered through a caesarean section. In comparison, New Zealand’s rate is 20 per cent, the UK’s is 22 per cent, France’s is 18 per cent and Norway’s is 16 per cent.

Australia’s C-section rate has nearly doubled since 1991, where it was 18 per cent

SBS also noted that private hospitals have a higher caesarean section rate than public hospitals.   According to their statistics:

In 2011, 43 per cent of women in private hospitals have birth by caesarean section compared with 30 per cent in public hospitals.”

Opinion is divided about whether the cause of the increased rates lies with mothers or with doctors.

Risks with a C-section

  • Side effects and complications from anaesthesia including, nausea, drowsiness, dizziness, short-term memory loss and, in rare circumstances, an allergic reaction.
  • Pain is very common after surgery. There are several layers of body tissue that are cut and then repaired during a caesarean, so post-surgical pain is to be expected. This can usually be managed well with medications.
  • Infection of the wound and bladder will affect a small number of women. This can be treated with antibiotics.
  • May affect method available for future births
  • Sometimes causes breathing difficulties for baby (usually resolved with special care)

Commonly accepted medical reasons for elective C-sections

  • Breech or transverse presentation – baby is not head-down.
  • Placenta praevia – placenta is lying low, blocking the cervix.
  • Previous C-section – risk of rupture of uterine scar.
  • Multiple births – sometimes a decision is made to deliver by C-section.

I want an elective C-section but the doctor says there’s no medical reason…

Issues can arise when the mother wants a C-section but the doctor doesn’t consider it to be medically necessary.  Patients can express a preference as to who will provide services, and must consent to them, but there is no right to the provision of services of a particular kind.  Those responsible for the patient’s care should take on board the views expressed, but ultimately it is their decision about what is in the best interests of the patient (and unborn child) considering the clinical picture and the resources available.

The Code of Conduct (the Code) for medical practitioners requires them to use healthcare resources wisely.  The Code states that good medical practice involves ensuring that the services provided are necessary and likely to benefit the patient.  Due to the increased risks associated with C-section (not to mention the additional costs and resources), doctors appear to be duty-bound to recommend natural child birthing techniques in the absence of any clinical indications requiring C-section.

A NSW Court decision (Eagle v Prosser[1]) in 1999 confirmed that the decision is that of the doctor and that he/she is under no obligation to perform a C-section in the absence of clinical need provided that there is a legitimate and recognised school of thought in medical circles which support that treatment.  It was recognised that different doctors of different schools of thought will have different attitudes to particular treatment options but so long as those attitudes are not inconsistent with a reasonable standard of care, it is not negligent to adopt or offer one to the exclusion of the other.

In that case, the mother expressed her preference for a caesarean birth on numerous occasions.  The doctor believed there was no medical reason for a C-section and refused her one.  The Court found there was no negligence and that had it become medically necessary, a C-section would have become available.

A shift in attitude?

A recent decision in the UK – Montgomery[2] seems to herald a different approach, one that moves away from the traditional, paternalistic “doctor knows best” attitude and towards empowerment of women to make their own choices:

“The social and legal developments which we have mentioned point away from a model of the relationship between the doctor and the patient based upon medical paternalism. They also point away from a model based upon a view of the patient as being entirely dependent on information provided by the doctor. What they point towards is an approach to the law which, instead of treating patients as placing themselves in the hands of their doctors (and then being prone to sue their doctors in the event of a disappointing outcome), treats them so far as possible as adults who are capable of understanding that medical treatment is uncertain of success and may involve risks, accepting responsibility for the taking of risks affecting their own lives, and living with the consequences of their choices”.

The facts in Montgomery were different to the NSW case because there was a clinical indication for C-section.  The mother was small and type 1 diabetic and it was accepted that there was a 9-10% risk of shoulder dystocia but the obstetrician decided not to discuss this with the mother to avoid the mother requesting a C-section.  The risk eventuated, the baby’s shoulder became stuck, he suffered oxygen deprivation resulting in brain damage, cerebral palsy and damage to the nerves controlling his shoulder, arm and hand movements.

It is an important case because it makes clear that the role of the obstetrician is to advise the mother- the doctor’s role is not to make the decision for her.  It also suggests that in certain circumstances, the mother may have a right to request delivery by C-section.

I don’t want a C-section, can I be forced to have one?

Life or death?

There has never been a case in Australia regarding a mother’s refusal of a C-section to save her unborn child’s life.  However, in the UK, the right of competent persons to refuse medical treatment, including the right to refuse C-section, is well established and is likely to be followed here.

In the UK, several cases have been heard by the Courts involving mothers refusing to undergo C-sections which were medically necessary to save their unborn child.   The decisions give priority to the mother’s right to self determination even if this results in harm to the unborn child.  However, the moral dilemma is often resolved by challenging the capacity of the mother refusing treatment.  Finding that the mother is temporarily incapacitated bypasses the right to self determination and that coupled with a decision that the C-section is in her best interests is enough to overcome the legal hurdles.

Breech presentations

Whilst the life or death scenario is fairly clearcut, the issue is still live in relation to mothers with breech presentations.  Depending on the specific facts of the case, a C-section may not be medically necessary to save the baby’s life.  However, anecdotal evidence suggests that not many obstetricians have the confidence or experience to encourage vaginal delivery of a breech baby.  Unless there is a specialist willing to take the patient on, often the mother is persuaded to have a C-section and agrees due to a lack of viable alternatives.  It appears clear though, that whilst a doctor cannot be compelled to provide care they do not believe is in the best interests of the mother and/or medically appropriate, a competent woman cannot be compelled to undergo significant surgery to avoid a natural birth.

As recently confirmed in the Montgomery case in Scotland:

“…A patient is entitled to take into account her own values, her own assessment of the comparative merits of giving birth in the … traditional way and … by caesarean section, whatever medical opinion may say, alongside the medical evaluation of the risks to herself and her baby. She may place great value on giving birth in the natural way and be prepared to take the risks to herself and her baby which this entails. The medical profession must respect her choice, unless she lacks the legal capacity to decide[3].

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*The material provided in our information sheets is for general knowledge only and is not a substitute for independent legal advice. For further information about the issues affecting you, please contact one of our experienced and professional lawyers for expert advice.

 

 

[1] [1999] NSWCA 166 (4 June 1999)

[2] Montgomery v Lanarkshire Health Board [2015] UKSC 11 at 81

[3]  Montgomery v Lanarkshire Health Board [2015] UKSC 11 at 115

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