Oral Presentation Australasian Association of Bioethics & Health Law and New Zealand Bioethics Conference

Patient Autonomy and Informed Consent in Birth Trauma Litigation (991)

Caitlin CD Davis 1
  1. Australian National University, Lyneham, ACT, Australia

This paper will explore the contested doctrine of informed consent in the context of childbirth. It will be argued that despite there being risks associated with vaginal delivery, Australian negligence law and policy creates barriers for pregnant women to make informed choices about the mode of delivery and interventions such as forceps or vacuum, that may be used during delivery. Firstly, this paper will explore the history of the denial of reproductive choice across various jurisdictions including Australia. This will be followed by a discussion of the ordinary principles of informed consent and causation with the reference to the doctor-patient relationship more generally. Thirdly, this paper will address why childbirth is considered unique with regard to informed consent and choice. Part II of this paper will address a number of birth trauma cases across various Australian jurisdictions and the approaches taken by the courts in assessing informed consent in childbirth. This will be followed by a discussion of the United Kingdom (UK) decision in Montgomery v Lanarkshire Health Board,[1]and whether Australia is likely to follow the court’s decision to impose a duty upon obstetricians to offer alternative methods of delivery to women.


[1][2015] 1 AC 1430 (‘Montgomery’).