RE: [ozmidwifery] Re: mothers rights in public hospital

[Robyn Thompson]

This is an interesting topic and really good educational programme about rights and responsibilities would be good.

 

The word Policy is often used in the hospital system as a means to take control of women and make the staff feel safe from possible litigation.

 

A Policy is not a legally binding document, it is a blanket statement for the population, written to protect the hospital and the staff.  The women who are forced to conform to such Policies have not had any hand in writing such documentation, their individual needs are negated.

 

Everyone has the right to say NO, nothing should ever be done to anyone without informed consent.  If we could just make all women feel confident to use this approach when they get into a situation where they say and mean NO we would be empowering these women to make informed decisions. The trouble is, it's quite scary when they feel vulnerable in the hospital system with all the "experts" hovering.

 

Routine Fetal monitoring is a prime example.  Compliance to 20 minutes of fetal monitoring on arrival is the expected norm here and is hospital Policy.  In reality fetal monitoring does not have to be done at any time if the mother says NO.

• Regular auscultation with her consent and understanding of the progress of labour is be more valuable.
• Routine 4 hourly vaginal examination is another where women should say NO.
• Giving a baby formula without written and informed consent is yet another and so on and so on

Just my comments,    Robyn

   

-----Original Message-----
From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]]On Behalf Of Debby M
Sent: Thursday, December 12, 2002 11:44 AM
To: [EMAIL PROTECTED]
Cc: [EMAIL PROTECTED]
Subject: [ozmidwifery] Re: mothers rights in public hospital

Jill, when I was trying to get into the Birth Centre at RWH I raised just this question. The NSW Womens Service actually publish a book on the rights of pregnant mothers - I gave my copy away after my baby was born and can't remember what it was called but I am sure they would know.

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: http://casino.cchs.usyd.edu.au/bio/ats/news7body.htm#LAW3

" 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 http://birthrites.edsite.com.au/ under the subheading Hospital Policy - there is a quote from the Commission into Foetal Welfare and the Law from the Australian Supreme Court which states:

"...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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