By Frances Hand*, Morganne Wilbourne*, Sophie McAllister, Louise Print-Lyons, and Meena Bhatia.

Approximately 46% of primiparous women using NHS facilities undergo an obstetric intervention during their labour. For women with a planned intervention (usually a caesarean birth) conversations regarding consent are mostly straightforward and occur during the pregnancy. Where an intervention is unplanned, current practice is to discuss consent just prior to the intervention.

With representation from medical law (Hand) and medical sciences (Wilbourne), supported by Midwifery (McAllister) and Obstetric colleagues (Bhatia), we are set to begin a multi-stage, cross-disciplinary project, focusing on the Oxford University Hospitals maternity unit at the John Radcliffe. We will be looking at whether limitations on the validity of consent offered in time-pressured and emotionally charged circumstances exist, specifically concerning emergency obstetric interventions.

We call for this with an awareness of the existing challenges in service provision. Maternity services in the NHS are under more pressure than ever before – with growing demands and expectations alongside limited resources. As such, we aim to address not only whether an intervention is required, but more pragmatically how we could deliver this enhancement of care in the current challenging climate.

The Law

According to the Mental Capacity Act 2005, an individual is presumed to have capacity to consent to medical treatment. For a person to be considered unable to make a decision, at the material time, and due to a mental impairment, they must be deemed unable to: (i) understand the information relevant for the decision, (ii) retain that information (iii) use or weigh the information provided and (iv) communicate their decision. Since the landmark Montgomery case, the concept of the decision-making process during childbirth has expanded. The Montgomery ruling suggested that, under claims of negligence, in order to have a meaningful consent conversation, the emphasis should rest on communicating the risks a patient would want to know, rather than those the clinician deems meaningful. More recently, the Supreme Court ruling of McCulloch [2023] adds a layer of nuance to this topic, suggesting that a clinician discussing treatment options should use their professional judgement to determine which options are reasonable and to discuss those.

Clinical guidelines largely support the idea of introducing the conversation of labour interventions during the antenatal period. The NICE guidelines for caesarean birth highlight the importance of discussing mode of birth early in pregnancy, including indications for emergency caesarean. By contrast, the NICE guidelines for ‘expediting birth,’ (which in practice means birth with a ventouse or forceps), does not mention discussing interventions during pregnancy, before labour has begun.

Despite these strong legal protections, a recent report recommended improving the availability and quality of information about possible interventions during labour and birth. This echoes evidence from our partners at the Maternity and Neonatal Voices Partnership, that women undergoing birth with forceps or ventouse remain dissatisfied with the consent procedure and believe that they did not know enough about the interventions that they could face and the consequences of those interventions. Given this, we suggest that current practice does not align with national law and guidelines, or the principle of autonomy, and it will require both obstetric and midwifery input as well as clinician capacity expansion to make meaningful change.

Timing is everything

Regarding the timing of consent for an emergency intervention, there exist two schools of thought, which sit at either extreme of a spectrum. The first, is to discuss obstetric intervention during birth  with every pregnant woman prior to the onset of labour, the second to discuss emergency obstetric interventions with just those women who need them (which, practically speaking, means only women in active labour). Option two (discussing interventions only with women who need them) is the current model, which may lead to difficulties and harm for women.

To ensure valid, considered consent, we advocate for option 1. We argue that autonomy is best supported by discussing with the patient well in advance. In general, human beings are often unable to reliably understand complex information. Most patients extract the ‘gist’ of information, rather than specific details related to risk, when making decisions. They also often require time to make an intentional selection. Yet, for a category one caesarean, the foetus must be delivered less than 30 minutes after a clinical decision has been made. Under these conditions, the speed with which a choice must be made gives women little opportunity for the broad, ongoing consent process imagined in Montgomery.

Next steps

To implement changes in practice, we must first understand the current state of consent discussions in the antepartum period. It will then be important to understand midwives’ and obstetricians’ perspectives on how best to realistically facilitate autonomous choice. This will inform our strategies, to ensure a robust set of principles guide consent processes in unplanned obstetric interventions. In any large organisation it is likely that changes will be implemented slowly. Nevertheless, with the buy-in of clinical staff, we believe we can make this improvement to the consent process a reality.

Authors: Frances Hand*, Morganne Wilbourne*, Sophie McAllister, Louise Print–LyonsPartnership, and Meena Bhatia

Affiliations:

Frances Hand is currently pursuing her PhD in Law at the University of Oxford. Morganne Wilbourne is currently pursuing her PhD in Medical Sciences at the University of Oxford.  Sophie McAllister is a Consultant Midwife at Oxford University Hospitals. Louise Print-Lyons is the Chair of Oxfordshire Maternity and Neonatal Voices Partnership, a multi-disciplinary partnership, bringing together service users and staff at a local level to improve local maternity and neonatal services. Meena Bhatia is a Consultant Obstetrician at Oxford University Hospitals. She is the Maternity Quality Improvement Lead at the Women’s Centre and is the regional representative for the NHS Clinical Leaders Improvement group.

*FH and MW have contributed equally to this project and should be considered to have joint first authorship. They are entitled to reference their own name first on curricula vitae.

Competing Interests: None declared

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