Dr Amber Moore

Birth: why don’t we just tell the truth?

Dr Amber Moore

MB BS FRANZCOG LLB(Hons)

"That's what's so hard to get my head around: your body can be damaged beyond repair without being informed of the risks. How did I not know about this?" she said.

1. The Patient

'How could they not tell me?': Women kept in dark about risks of vaginal births

"I knew nothing about forceps. I thought it sounded scary … but after all the research I'd done I'd come to the conclusion that caesareans were pretty bad and rough for the baby," the Brisbane mother said. The doctor opted for the forceps. Her baby was delivered and whisked out of the room, leaving Ms Dawes on the operating table as the blood began to pool. "I remember shaking on the operating table, I don't know if it was the adrenalin or fear but I thought I was going to die.” It was a third-degree perineal tear. But her daughter Eliya would be 16 months old before Amy realised the true extent of the damage done.

Vict or ia

The Age

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Ivana Alexander was anxious about having her f i r st baby.

The 30- year - old had gest at ional diabetes and knew her baby was big,

so she says she asked st af f at Angl iss hospi t al i f she could have a

caesarean .

She rem em bers bein g t old t h at a doctor would on ly do on e in som e

ci rcum stan ces, an d t h at she should have a vagin al bi r t h instead. I t

was a sl iding door m om ent t h at would ch ange h er l i f e f orever .

As a doct or pul led out her 4 k i logram son wi t h a vacuum , Ms

Alexander says she fel t h im r ip t h rough her per ineum (t he sk in

bet ween her vagina and anus).

" I f el t l ike I was dying," she says of t h e bi r t h wh ich has put h er of f

having another ch i ld.

Ms Alexander , now 33, says a m idwi fe at t he publ ic hospi t al in

Fern t ree Gul ly st i t ched her up af t er t he del ivery wh i le repeat edly

ask in g a doctor i f sh e was doing i t cor rect ly . Th e pain rem ain ed

in t olerable over t he n ext 24 hours.

Best and worst hospitals for perineal tears revealed

Julia Medew

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Ivana Alexander who suffered a terrible birth injury. Photo: Simon Schuter

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Rate of Third and Fourth Degree Tears

• “My vagina has collapsed”

1. The Patient

• From a medical perspective is appropriate for

women to ask:

• Why did I not know the extent of potential

damage to my baby?

• Why did I not know the extent of potential

long term and serious harm to myself?

1. The Patient

• From a legal perspective:

• I my doctor/ health practitioner had disclosed

the risks that I have suffered, I may have/

definitely would have made a different

decision

1. The Patient

• From an ethical perspective:

• You have no right to make a decision on my

behalf that has now resulted in harm to me/

my baby.

• Autonomy/ self-determination

Montgomery v Lanarkshire

2015 Supreme Court UK

• However the Aussies were way ahead…


• Dr McLellan = Ob

• Mrs Montgomery = patient

• Mrs M was smart, educated, short stature, big baby, insulin dependent

diabetic

• Expressed concern about her ability to birth vaginally but did not ask

‘specific’ questions

• Not told of risk of shoulder dystocia – 10% risk – or the smaller but more

grave risk of catastropic fetal injury as well as PPH and third or fourth

degree tear

• Doctor agreed high risk of shoulder dystocia but did not specifically

discuss the option of CS because :

Dr McLellan:

• “if you were to mention to any mother who

faces labour that there is a very small risk of

the baby dying in labour, then everyone

would ask for a caesarean section, and it’s not

in the maternal interests for women to have

caesarean sections”


• Obiter: Lady Hale

• “It looks like a judgment that vaginal delivery is

in some way morally preferable to a caesarean

section; so much so that is justifies depriving the

pregnant woman of the information needed for

her to make a free choice in the matter…”


“The only conclusion that we can reasonably reach is that,

had she advised Mrs Montgomery of the risk of shoulder

dystocia and discussed with her dispassionately the potential

consequences, and the alternative of an elective caesarean

section, Mrs Montgomery would probably have elected to be

delivered of her baby by caesarean section. It is not in dispute

that the baby would then have been born unharmed”.

Lords Kerr and Reid

So what information is currently provided?

• Information about the nature of the birth process

• Pain relief choices

• Information about CS vs VBAC

• Information about risks of instrumental delivery/ caesarean section

• Information about models of care

• Information about Public vs Private care

• Information about ‘patient choice’ caesarean section

So what information is currently provided?

• No information about making a choice between

vaginal birth or caesarean section

• No information about rates of maternal or fetal

death or damage from the inherent risks of

vaginal birth

• Doesn’t my vagina matter?

Beneficent paternalism to autonomy

• “Gone are the days when it

was thought that, on

becoming pregnant, a woman

lost, not only her capacity, but

also her right to act as a

genuinely autonomous human

being.”

• Lady Hale

Beneficent paternalism to autonomy

• Doctor making decisions on behalf of patients

• to patients as consumers

• Doctor centred to patient centred care

• Treatment decisions made in collaboration with

patients

• Patients respected as autonomous decision makers

So what is autonomy?

• Hey I am no ethicist…..

Autonomy and informed consent


• Kant: a rational individual lives dutifully in accordance with a self

imposed law

• John Stuart Mill: personal freedom limited by preventing harm to

others

• Isaiah Berlin: positive and negative liberty

• Negative liberty: self-determination gives rise to a right that can

positively be asserted against another who may wish to interfere

with personal freedom


• Oxford book of bioethics:

• “Autonomy means freedom from outside restraint and the

freedom to live one’s own life …to live by your own law…to

be self-sovereign…living according to you own values and

principles as these are refined in the light of informed,

rational deliberation and settled conviction…it is a far cry

from an anything-goes, do-your-own thing morality”

So what?

• “The practice of medicine in the service of

respect for rights, dignity and personhood of

a patient replaces medicine in the service of

beneficent paternalism”

• It’s a complicated concept…..

What it means is:

• A patient can only be empowered to make a

self-determining choice if the information

provided is sufficient

• So are we giving women sufficient

information to make an informed choice?

2. The Doctor

• What about the role of the doctor in providing

that information?

The Doctor

• Four Models of Doctor-Patient Relationship

1. Paternalistic

2. Informative

3. Interpretive

4. *Deliberative

Interpretative model

• Patient may not know what their values are

• Doctor helps define these values and select their

options

• Doctor does NOT dictate to the patient

• Patient makes the ultimate decision

• Doctor facilitates self-understanding but does not

judge the patients values

*Deliberative model

• ‘Moral self-development’

• Discusses options, argues pros and cons

• Physician acts as teacher or friend to

persuade towards a choice

• Patient makes the ultimate choice

• But limited to health related matters

The Dr-Pt relationship and autonomy

• Freedom and control over medical decisions does not

constitute patient autonomy

• Just to provide a list of options and assume a patient can

make a choice free of coercion, ignorance, interference is

an oversimplification and distortion of the concept

• Often patients don’t know what to ask: Mrs Montgomery

Evidence Based Medicine

Evidence based medicine

=



EBM

• Sometimes just sticking to guidelines is not enough

• Increasing concern regarding the slavish adherence to

guidelines being potentially detrimental to individual

patients

• EBM cannot account for individual facts pertinent to every

patients situation

• ?Evidence based paternalism?

EBM

• There is a legal basis for these concerns:

Duty to Warn

• The courts have been clear in both Australia and the UK,

that whilst the appropriateness of medical treatments in a

given situation is predominantly in the domain of the

medical profession, when it comes to the duty to warn of

risks, complications and alternatives to treatments, the

courts will decide on the content of that duty .

• Distinguished from treatment cases.


• “The contrast of risk involved in an elective

caesarean section, for the mother extremely

small and the baby virtually non-existent, is stark

and illustrates clearly the need for Mrs

Montgomery to be advised of the possibility,

because of her particular circumstances, of

shoulder dystocia”. (Didn’t fit into the protocol !)

And as such:

• When it comes to discussing choices of treatments

with patients, the patient must be seen as an

individual not just a protocol

• …and…

• The decision to withhold information due to system

issues – cost etc – denies a patient all the information

they need to make the best decision for them

Should there be “informed consent” to vaginal birth?

• If so then what information is necessary?

Risks of birth Not an exhaustive list

• Risks to Mother

• Risks of caesarean section surgery:

incl rpt CS

• Risks of regional anaesthetic

• Risks of instrumental birth

• Risks of induction of labour

• Risks of vaginal tearing

• Risks of sexual dysfunction

• Risks of pelvic floor injury

• Risks of anorectal injury

• Risks to Fetus

• Risks of birth trauma/ mechanical

injury

• Risks of hypoxia

The Dilemma for Obstetricians

1. More than one patient

2. Childbirth is a normal, physiological process

3. Only women birth…

4. Medico-legal concerns

5. The nature of pregnancy and the demographics

of the pregnant woman has changed

1. More than one patient

More than one patient

• However, only the woman is autonomous

• Fetal has no rights as an individual until they

crystallize at birth (but obs are held to

account for damage done in pregnancy/

labour)

• Enforced caesarean section cases

Avoid Fetal Trauma • Erb’s palsy and other birth injuries may occur after

caesarean section but are unequivocally greater after

vaginal birth. The rate of Erb’s palsy is reported

variously between 0.45 and 3 per thousand births. This

is in the range that most women would seem to regard

as important in deciding between caesarean section

and vaginal birth

2. Childbirth is a normal physiological process

Blog post: “It's sad that so many women are deceived by obstetricians into thinking that vaginal breech births are dangerous that they do not even give them enough information to make an informed choice.”

POLICY STATEMENT MATERNITY – TOWARDS NORMAL BIRTH IN NSW

What the midwife does not see…

• Antenatal pathology – often little antenatal training

• Not usually responsible for intrapartum pathology

• No general gynaecology so does not see the after-

effects….

• Hospitals and governments don’t care…

• Nimbin backlash…

3. Only women give birth

• “When it comes to childbirth, American women

today are among the best prepared in the

world….The most common postnatal reaction

remains (after sheer relief) sheer disbelief.

Disbelief at the extent of our ignorance. Disbelief

at the extent of our arrogance. Disbelief that we

could ever imagine we could control and direct our

responses, that we could ‘manage’ the pain.”

• Susan Maushart

Only women give birth

• Hangover of male paternalistic model

• Real women should get ‘real’ choice

• The feminist dilemma

4. Medico legal concerns

Poor old doctors

• Constant changing of the case law

• Constant changing of medicine

• Pressure to adhere to protocols

• Pressure to contain costs

• Fear of hour and hours and hours in clinic (and

we don’t get paid by the 6 minute block)

5. Pregnant women are changing

Approximately 1.4 in 1000 can be expected to have an antenatal, intrapartum or neonatal death after 39 weeks gestation, increasing to 4.6/1000- at 41 weeks gestation. This is an unacceptable risk for many women and health professionals. Perinatal mortality from elective CS has been quoted at 10 times lower than that from vaginal birth.

RANZCOG Caesarean Delivery on Maternal Request (CDMR) C-Obs 39 Pearce v Bristol

The informed ‘consumer’ patient (?)

• “It would therefore be a mistake to view

patients as uninformed, incapable of

understanding medical matters, or wholly

dependent upon a flow of information from

doctors.”

• M v L

• “A mere generation ago, the experience of

childbirth remained firmly ‘in the closet’ of the

culture at large. It had no place at all in public

discourse, any more than did other aspects of the

female life cycle….We perhaps underestimate the

extent to which this remains the case today.”

• Susan Maushart

So what truth do we tell?

• There has not been a legal requirement, at

least in obstetrics, to INFORM of the risks of

NOT intervening


• To date:

• The provision of birth information has generally been based on the

premise that vaginal birth is the default position and that any

medical intervention must be justified.

• The intervention must be medically indicated and in accordance

with acceptable medical practice. *Bolam

• The patient must ‘consent’ to such interventions and be informed

of the risks.


• The process of vaginal childbirth and the

process of caesarean section

• Potential risks of outcomes of both processes

• Should reflect best evidence available but be

sufficiently flexible to apply to individual

patients


• Should include

• The risks of interventions

• The risks of NOT intervening

• The risks of medium to long term problems even if the process is

“uncomplicated”

• What if we tell the truth and the PATIENT ACTUALLY MAKES A

CHOICE??? (that ‘we’ don’t agree with)

You don’t need to tell everything

• Concept of therapeutic privilege

• “That is not necessarily to say that the doctors

have to volunteer the pros and cons of each

option in every case, but they clearly should do

so in any case where either the mother or the

child is at a heightened risk from a vaginal

delivery.” Lady Hale

MJA 6.3.2017 • Are international caesarean section targets realistic to apply across

all countries? NO

• The longer term risks of reducing caesarean section rates:

– Pelvic organ prolapse (incl increased forceps rates)

– Urinary incontinence

– Fistulae formation

• Longer term consequences include misery and surgery and usually

both (POP – US lifetime risk is 20% - the reoperation rate as high as

8.9%)

Demographics matter

• Younger mothers – less risk of birth complications, lower caesarean rate

• Smaller babies – lower caesarean rate

• Many babies – risk of placenta accreta in multiple caesarean surgeries

• Silver et al. (2006) found that placenta accreta was present in 0.24%,

0.31%, 0.57%, 2.1%, 2.3% and 6.7% of women undergoing their first,

second, third, fourth, fifth, and sixth or more caesarean deliveries. So

main issue is AFTER the 3rd caesarean section

• Less than 5% of Australian women have more than 3 children

Public authorities

• Vested interest in vaginal births – cheaper

• Can be construed that obstetricians are to blame

• Montgomery – decisions taken by institutions

are in principle susceptible to challenge under

public law rather than, or in addition to, the law

of delict or tort

Should we stratify information ?

• ? Less choice to younger patients

• ? More information about choice to older patients?

• Inherently fraught – who is high risk/ low risk?

• No obligation to treat if doctor feels clearly against

patients best wishes – therapeutic exception

protected in Montgomery

• “In short, most of us emerge from the experience

of childbirth in a state of shock, aghast with the

discovery that everyone ‘prepared’ us, but no one

told us the truth.”

• Susan Maushart

Conclusion

• Women deserve an honest account

of the birth process and respect for

their choices .

Law

Dr Amber Moore