In addition I found out from one of the doctors at the hospital that regardless of what was hospital policy they could not force me to comply with their policies ie. the policy for VBACs is they are continuously monitored and have a drip in however if I did not consent to this (which I didn't) they could not force this upon me. If I went against a policy that required positive action on my part for example got in a bath to labour when policy said I couldn't they also could not forceably r*move me as this would constitute assault. However what they could do is refuse to treat me - however this then raises issues related to duty of care in their facility - and from my discussions with the lawyer at the Women's legal service - perceived uncooperative behaviour on my part does not negate them from this duty of care - if a bad outcome had occurred as a result of my decisions then there would be a case for contributory negligence on my part which would lessen their responsibility! ! but it would not negate it altogether.
The hospital itself also informed me that they cannot refuse to treat patients who come to them for care as this care under the public system is the primary right of every Australian. The "service" they provide must be with the patients informed consent.
Therefore the mother does have the right to refuse any intervention from VE's to caesareans. Her choice to do this may result in contributory negligence if she brings a case against the hospital for an adverse outcome and if the hospital can PROVE that the failure to perform the said intervention contributed to the outcome. The onus of proof in civil cases is on the defence not the plaintiff - unlike criminal cases.
In addition there have been at least two cases in Australia where children have bought cases against their parents for injury suffered in utero - I am not familiar with the cases though so am not sure if these were birth choices related or if they were related to acti*ns taken by the mother in pregnancy (eg. drugs).
This site has some discussion on this from midwives:
" If there is any risk involved in the birth there is an obligation to inform the patient. However the carer cannot proceed with the procedure without the patient's consent. Without this the carer could be accused of assault."
In addition on the Birthrites website
"...When a competent, properly advised pregnant woman has clearly communicated her decision to decline a particular form of treatment, there are no circumstances in which the law should seek to override this decision. The principle that her wishes should be respected should prevail regardless of the degree of risk either to herself or the foetus..."
It should be noted there have been cases in the US where the welfare of the baby has been placed over the desires of the mother and the mother has been either forceably admitted to hospital or give a caesarean without her consent - but the lawyer I spoke to said that she was not aware of this ever occurring in Australia and felt that our human rights laws would negate such a thing being allowed unless it was deemed that the mother was not of sound mind to make decisions - which is apparently hard to prove.
The other interesting thing the Women's Legal Service advised me is that in the case of Birth Centres/Midwifery models a woman (or group of) may have a case for discrimination against a hospital where they are refused access to a particular Birth Centre/hospital on the basis of a preexisting medical condition eg. age, VBAC etc - where other Australian Birth Centres/Midwifery models do accept women in that particular "risk" group. Such a case would need to be either through HREOC or by civil avenues (which is expensive).I hope this h*lps but I would highly recommend getting in contact with the Women's Legal Service I found them most helpful.
Debby
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