Defining informed consent
“The free citizen’s first and greatest right, which underlies all others—the right to [herself]—is the subject of universal acquiescence, and this right necessarily forbids a physician or surgeon, however skillful or eminent, who has been asked to examine, diagnose, advise and prescribe, to violate without permission the bodily integrity of [his/her] patients by a major or capital operation, placing [her] under anaesthetic for that purpose, and operating on [her] without [her] consent of knowledge.”
Sounds like something we can all get behind, doesn’t it? In 1905, the case of Mohr v. Williams established that every person has the right to informed consent, the process by which a patient learns about and fully comprehends the motivation, nature, potential risks and benefits and alternatives to any procedure or treatment.
The Joint Commission requires documentation of every element of informed consent either in a form, progress notes or elsewhere on record, and that documentation must include:
- The nature of the procedure
- Risks and benefits of the procedure
- Reasonable alternatives to the procedure
- Risks and benefits of the alternatives presented
- An assessment of the patient’s comprehension of the above elements
But informed consent is more than a legal obligation to obtain a signature on a form. It is the ethical responsibility of the provider (not the patient), and failure to establish informed consent can (and should) have serious consequences.
Unfortunately, studies and anecdotal evidence consistently show that women’s right to refuse procedures is routinely violated during childbirth.
Kimberly Turbin, a two-time rape survivor, arrived at Providence Tarzana Medical Center and informed her care team of her history, requesting they be gentle. What happened next was a clear violation of Turbin’s right to consent, and was caught on a video that went viral in 2014. As Turbin screamed, “No, don’t cut me, no!” Dr. Alex Abassi made twelve audible snips to Turbin’s perineum with a large pair of steel scissors. Turbin sued Dr. Abassi for battery and assault in April of 2015 and settled in March of 2017.
In another region of the country in 2014, Caroline and J.T. Malatesta filed a lawsuit for negligence against Brockwood Medical center in Birmingham, Alabama, after two nurses physically forced Caroline Malatesta into the supine position against her will and forcibly held her baby’s crowning head inside her vaginal canal for six minutes because the doctor was late to the delivery. Malatesta sustained a rare and painful nerve injury from the assault that prevents her from having intercourse or giving birth for the rest of her life. In 2016, the Malatestas won the lawsuit and were awarded 16 million dollars.
Informed consent and childbirth
It’s difficult to believe that actions like these are justifiable under any circumstances, but two exceptions to a patient’s right to informed consent are continuously invoked in defense of providers who perform non-consensual procedures on women in labor. The first exception is the presence of life-threatening or emergency circumstances. However, the most commonly performed procedures in question (intravenous drip, external fetal monitoring, rupturing the uterine membrane and incising the perineum to widen the vaginal opening) are rarely in response to a medical emergency.
The second exception is when a person is deemed incompetent and unable to consent. This argument rests on the problematic belief that women are incompetent during labor, but there is no evidence to support this theory. In fact, there is evidence to contradict it. Based on this (unsupported) argument, providers are protected from litigation by obtaining a signature on a general informed consent document prior to labor. But the circumstances of labor often change once labor begins, and these changes provide women with new and relevant information to affect their decision-making.
Obstetric violence is just that: violence. It is no less traumatic than violence against women that takes place on the street or in the home. Studies show that a woman’s recollection of her birth experience as positive or negative is directly tied to her exertion of choice and sense of control, not the specific details of the delivery. If you are preparing for labor, remember that you have the right to informed consent and you are in control.