Doctors have been advised not to panic, and consent advocates say maternity care will improve, after a landmark court payout for assault to a family violence survivor pressured into having a vaginal examination.
Dentistry academic Larissa Gawthrop was awarded $275,000 in damages for assault, battery and negligence by the Supreme Court of Victoria on March 27 against Bendigo Health, where she gave birth in 2020.
The court heard Gawthrop had a birth plan, provided to the hospital, which declined “all vaginal examinations unless there is an urgent medical reason to do so”.
She had gone into labour at home, at more than 40 weeks pregnant, and her waters had broken, but over two hours was “corralled and worn down” into having a vaginal examination before the hospital would admit her or allow any pain relief.
Justice Stephen O’Meara found Gawthrop eventually “caved” while distressed, in pain, crying and saying, “I don’t want this”, more than once.
“I am, of course, mindful of the gravity of such a finding. However, the circumstances to which I have referred establish that the plaintiff was not freely, voluntarily and therefore actually consenting when the vaginal examination was performed,” he said.
Gawthrop’s solicitor, Alastair Lyall, told this masthead the fact that a labouring woman in pain was offered only a sponge as pain relief unless she agreed to vaginal examination was appalling, and that the finding would have wider implications for the maternity care industry.
“This really should send a signal to all those involved in that industry to say we just can’t coerce people into having these examinations,” he said.
Professor Hannah Dahlen, one of Australia’s most senior maternity researcher-educators, said the case was a turning point, and she was aware of other women who had experienced coercion who would follow suit.
“It sets a significant precedent which will enable other women who have wanted to bring similar cases forward to do so,” said Dahlen, Associate Dean in the School of Nursing and Midwifery at Western Sydney University.
The reaction in medical circles that the case was worrying for doctors “is a sad take on this”, she said. “It should be considered a wake-up call for all of us midwives and obstetricians to do better and provide women with informed consent, not coerce them into choices … these are fundamental rights women have and obligations professionals have.”
Alicia Staines, founder of the national birth advocacy group Maternity Consumer Network, said medical workers would be aware that non-consensual vaginal examination was assault, and this finding illustrated women’s right to respectful care.
“This is a clear signal to healthcare staff that consent has to be voluntary and fully informed” she said. “Women know that the court is in our corner as we have this precedent applying the law.”
Dr Nisha Khot, president of the Royal Australian and New Zealand College of Obstetricians and Gynaecologists, said dismay among practitioners about the judge’s finding were unjustified.
“There seems to be this panic that the court has said doing vaginal examinations is the wrong thing to do, that is not at all what the court said,” Khot said.
Such examinations were an accepted part of care “if it is indicated and required – provided you have had a discussion explaining why you’re doing it, and gained the woman’s informed consent, rather than badgering someone into giving consent”.
Gawthrop consenting to a number of subsequent examinations after her known, continuity-of-care midwife had arrived showed that with adequate information and communication the procedure could be correctly managed, she said.
“We [medical staff and patients] are not at war with each other; women want respectful care, clinicians want to provide respectful care. This should not be a debate, it should not be polarising at all.”
Western Victoria MP and former general practitioner, Sarah Mansfield, called on Tuesday in state parliament for a birth trauma inquiry similar to that held in New South Wales in 2024, which resulted in an apology by the state to women for harms inflicted during maternity care.
Mansfield noted that up to 1000 submissions to the NSW inquiry were from Victorians, “yet Victoria is one of the only states to have made no substantive response” to birth trauma – which affects one in three Australian mothers.
Gawthrop’s experience illustrated ways in which failure of informed consent, continuity of care and transparency of birthing options could lead to lasting harm. “These experiences are of just one person, but they reflect stories I hear frequently,” Mansfield said.
Though it has not inquired into birth trauma, Victoria this year introduced new guidelines stating women’s wishes must be respected in maternity care.
Associate Professor Hazel Keedle, a birth trauma researcher and senior lecturer of midwifery at Western Sydney University, said the finding was a significant step towards establishing respectful maternity care because it supported that non-consensual examination was assault.
“It’s a good step forward for consent; it identifies that healthcare providers cross the line too much,” said Keedle, who has published research on consent in maternity care and on factors contributing to birth trauma.
“This has highlighted women’s rights in childbirth,” she said.
The court heard Gawthrop had not been experiencing a medical emergency but the staff member who treated her had believed they were following mandatory policy.
O’Meara found Bendigo Health had breached its own standard of care by failing to secure truly informed consent and that the organisation was negligent in its messaging to their patient.
Bashi Kumar-Hazard, board chair of Human Rights in Childbirth International and law lecturer at the University of Sydney, said the case was a landmark and should prompt hospitals to remove policy requirements for vaginal examinations before admissions.
“You have processes in place that do not factor in whether or not women agreed to the processes and practices: Overriding [women’s] consent is so normal in the [hospital] system for things like this,” Kumar-Hazard said.
That the judge had taken Gawthrop’s written birth plan seriously would mean hospitals nationally were also on notice to take women’s stated wishes more seriously, she said.
Asked on Sunday if it would appeal against the court’s decision, a spokeswoman said Bendigo Health acknowledged the outcome and “we are considering the detailed verdict of the court and won’t be providing any further comment at this stage”.
The Australian College of Midwives was contacted for comment.
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