This is just a quickie. My work is all about sharing evidence-based information to help care providers and women work through options and understand birth and birth practices. However, most people, care providers included, are unclear about the legal requirements of sharing information. This results in women not being able to make informed decisions and give valid consent for interventions. It also leaves care providers at risk of legal action in relation to information sharing (or not as the case may be). This post is a very brief and basic overview of law (Australian and most other Western countries) concerning information giving.

Consent

If consent is not gained before a procedure, it could lead to an action for 'trespass to the person' (ie, assault and/or battery). For consent to be valid it must have at least three elements:

1. be voluntary and freely given
2. come from a competent person
3. be specific to the treatment/procedure.

The first element is where I think most breaches occur in maternity care situations. For this element to be satisfied:

• the person must not be under any undue influence or coercion
• there must be no misrepresentation (whether deliberate or mistaken) as to the nature or necessity of a procedure.

I am sure I don't need to list the common real life scenarios in which this element of consent is not satisfied in relation to maternity care. By the way, to sustain a civil action alleging assault and/or battery harm does not need to be caused by the procedure.

Negligence - lack of information

A health care practitioner who fails to provide adequate information to a woman can be sued for negligence. To have a successful case, the woman must demonstrate that:

1. the health carer had a duty of care to provide the information
2. that duty was breached by failure to provide the information
3. the woman would not have agreed to the procedure/treatment if adequate information had been given
4. and as a result, the woman or baby suffered harm.

What is reasonable information?

The High Court states that patients should be told of any 'material risk' inherent in the treatment. A material risk in relation to maternity is one:

• to which a reasonable woman in the woman's condition/situation would be likely to attach significance;
• to which the health carer knows (or ought to know) the particular woman would be likely to attach significance; or
• about which questions asked by the woman reveal her concern

Responsibilities regarding information giving are discussed in more detail in this post. And you can find more information about 'material risk' in this article.