The Lamaze blog Science and Sensibility has inaugurated a “Legal Corner” to explore legal issues surrounding maternity care. A lawyer has been recruited to write the first two post on informed consent. Natural childbirth advocates may be surprised to find that their made up theories of informed consent, including fabricated notions of medical assault and the bizarre, hyperbolic accusations of “birth rape” have no basis in the law.
Montana lawyer Casey Magan starts with a brief explanation of informed consent:
Informed consent is a legal and ethical requirement founded on the notion of personal autonomy and self-determination. In its simplest form, it means that, in non-emergency situations, it is your right as the patient to decide what treatment to agree to, or refuse, based upon your physician’s disclosure of all material facts relating to the proposed treatment or procedure. A failure to provide appropriate informed consent can be “medical battery,” an unlawful touching that takes away a patient’s right to make her own health care decisions. (my emphasis)
In contrast to the claims of natural childbirth advocates, informed consent doctrine does NOT mean that when a patient says “no” her medical providers must respond as she wishes.
Magan provides three examples, only one of which requires the provider to honor the patient’s request.
1. As you walk the halls to advance labor, a nurse firmly escorts you back to your room, explaining that hospital policy requires you to stay within the labor and delivery department—if not your room or bed;
2. When you ask for a glass of water, you are instead poked with an IV;
3. A doctor comes into your room and forcefully lobbies that he be able to use Pitocin to induce labor.
Magan explains:
Informed consent provides an easy analysis in just one of the three examples – that of the physician’s desire to use Pitocin. Because, under the doctrine of informed consent, if you are capable of giving consent, and do not agree to a certain treatment or procedure, the doctor may not administer it, no matter how much he or she would like to. (my emphasis)
That also means that just because a woman disagrees with a hospital policy does not mean that she is exempted from following it. Indeed, Magan points out:
… Your birth plan is not a contract, and neither your maternity care provider, nor the hospital, has to comply with it.
Can a hospital kick you out or a provider refuse to care for you if you don’t comply? Yes they can.
There are limitations, of course:
… They cannot kick you out if you are in active labor (when the cervix is about 3 – 4 cm), or any other condition that may be considered an “emergency” without violating state and federal law. (e.g., Emergency Medical Treatment & Active Labor Act (EMTALA). Similarly, a physician may not abandon you, meaning he or she cannot “fire” you as a patient without reasonable notice when you still require medical attention.
You can only invoke EMTALA in a medical emergency, but the informed consent rules apply to non-emergency situations and apply only when a patient is capable of giving consent. When an emergency occurs, consent for emergency treatment is considered as implied, and it easy to argue that a woman in active labor is not capable of giving informed consent in the midst of a complex medical situation.
Therefore, when an obstetrician performs an episiotomy in anticipation of a possible shoulder dystocia, it does not matter that the patient has expressly refused an episiotomy before labor began and it does not matter that the patient expressly refuses the episiotomy at the moment it is performed. Consent for life saving treatment in the face of emergency situations is implied.
Magan explains that women have the right to:
Request or refuse treatment, to the extent permitted by law. However you do not have the right to demand inappropriate or medically unnecessary treatment or services.(my emphasis)
The bottom line? You have a right to complete explanations, but you have no right to have your demands met. You have the right to express your preferences, but the doctor may refuse to care for you and the hospital may refuse to admit you. You have the right to be admitted in a medical emergency, but informed consent doctrine is predicated on being obtained during a NON-emergency situation and the law treats consent for life saving treatment in an emergency as implied, even if you did not consent.
Simply put, informed consent doctrine does not mean that doctors and hospitals must abide by your wishes or that ignoring those wishes constitutes a breach of informed consent.
