I’ve been asked to comment on the decision in Gawthrop v Bendigo Health [2026] VSC 157 (27 March 2026), a case that’s been described by Dr Danny Tucker, obstetrician and blogger as ‘the most significant Australian consent case for intrapartum care in years.’  In his blog, Bill Madden’s WordPress, Bill Madden a lawyer and expert on medico-legal gave this summary of the facts:

The plaintiff, for management of her pregnancy, applied to join the Mamta midwifery program at Bendigo Health and was accepted into it. She wrote a birth plan which amongst other things said:

I DECLINE ALL vaginal examinations unless there is an urgent medical reason to do so. Informed verbal consent MUST be given from myself prior. If an urgent medical reason indicates an examination, I DO NOT wish to be informed of my dilation.

On 17 November 2020 the plaintiff’s membranes ruptured. The plaintiff and her husband attended the maternity ward and met Ms Alexander, a hospital midwife as the MAMTA midwife was on leave. The plaintiff consented to certain requested steps, but declined vaginal examination, ‘CTG’ and the administration of an ‘AmniSure’ test (at least initially).

Mr Gawthrop approached Ms Alexander at the nurses station and ‘laid out’ the situation that had emerged (ie, ‘[y]ou’re not going to call our Mamta midwife, you’re not going to admit us to the ward … and you’re not going to provide any pain relief unless Larissa has a VE’) to which Ms Alexander responded ‘Yes, that’s correct’; Mr Gawthrop explained the situation to the plaintiff and then returned to Ms Alexander and said ‘she’ll have the VE’.

A VE was performed at that point and the plaintiff consented to three more later (four had been suggested). The plaintiff consented to vacuum assisted delivery and episiotomy.

Following the delivery, the plaintiff provided feedback to the hospital as follows ([28]).

I would like to mention a concern that we had when we arrived to the birthing suites. We were under the impression we would be “admitted” and my MAMTA midwife notified of this. However, we were told that I was not being admitted but there for an assessment and could possibly go home, my MAMTA midwife would not be called and no pain relief given (if I requested it) unless I had a vaginal examination to “see if I was in labour”. I had been active labouring at home for approximately 4 hours and were advised to go to the birthing suites, my husband notified them that we would not be looking to come home and was under the impression we would be admitted. We had timed all contractions on an iPhone app which indicated active labour for several hours. Throughout all of my appointments during pregnancy with Bendigo Health I was told that I did not have to have any vaginal examinations unless medically necessary. This was extremely upsetting for me at the time, distracting to my concentration and a highly inappropriate time to advise me that this was “necessary” for me to receive care to birth my son. It was very coercive, invasive and I did not have any other choice but to endure an examination that I was not prepared for.

The proceedings issued by the plaintiff addressed consent (trespass to the person) and negligence. The reasons for judgment were very long. The court ultimately held at [561]:

In short, the circumstances to which I have referred indicate relatively plainly that the plaintiff’s stated birth preference was disregarded and circumstances thereafter conspired to pressure and corral her such that she became dispirited and distressed over the course of about two hours in the middle of the night when she was apprehensive, labouring and in pain.

And at [565]:

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. It follows that the plaintiff’s claim in assault and battery must be accepted.

In relation to negligence, the contention was that the plaintiff had not given ‘informed consent’, which was a link to alleged non-compliance with the terms of the defendant’s Informed Consent Policy. ([572]). It followed from the earlier findings that the defendant breached the standard of care defined by its own policy. ([576]).

General damages were assessed at $275,000 but her claim for aggravated damages was rejected. Special damages were agreed.

When I first became aware of the case, through Bill Madden’s post, I did not think it was a case for ‘emergency law’ but I’m told that there has been ‘Some interest on LinkedIn about it.’  When asked what the interest is I was told:

The interest on LinkedIn appears to be around coercion to gain consent and utilising the argument that “it’s our protocol” and not offering patients options or autotomy. The case is not particular to Paramedicine but underlies general consent principles.

Fair enough so I’ll make my contribution.

The case is indeed about consent.  The plaintiff was adamant she did not want a vaginal examination; but she was told that the hospital was not going to

  • Call the primary care midwife;
  • Admit Ms Gawthorp to the ward; or
  • Provide any pain relief;

unless she consented to the procedure (see [27(j)] and [525]).  Her partner gave evidence that ‘he felt that there was no choice and said that the plaintiff was ‘very distressed and kept on saying that she didn’t want to have the vaginal examination’’ ([360(d)] and (at [406]-[407]):

… it was like his wife had been ‘defeated’. He said that she said ‘[f]ine’, but still ‘didn’t want it’. He said the plaintiff was ‘a mess’ and ‘incredibly distressed about the situation that she was in’. Mr Gawthrop said that the plaintiff was ‘crying’ and ‘didn’t want the VE’, but Ms Alexander ‘performed the VE’ and afterwards her [Ms Alexander’s] mood changed ‘instantaneously’.

In cross-examination, Mr Gawthrop … he denied that Ms Alexander had said ‘I’m about to proceed. Any time you want me to stop, you just say stop’. He confirmed that his wife had been crying and saying ‘I don’t want this’.

Part of the reason given for requiring a vaginal examination was that the staff midwives thought it was a hospital policy that a vaginal examination had to be completed before a Mamta midwife was called.  Justice O’Meara went through a number of the health services policies including Safer Care Victoria guidelines, and hospital policies on the management of labour and the need for consent.   The judge found that there was no explanation given why an examination was required or the rationale for any relevant policy (see [344]-[350]).  At [356] His Honour said:

The overall circumstances suggest that there was a relatively brief exchange of the kind generally recounted by the plaintiff and Mr Gawthrop. After that, Ms Alexander left the room. Such an account seems also to be in keeping with the essential brevity of the relevant part of Ms Alexander’s initial note. From that point, the plaintiff was confused and stressed and relations between the respective ‘sides’ are likely to have been rather strained.

His Honour continued (at [368]-[370]):

… I have earlier referred to the strained or frosty relations that must have arisen from the exchange in which Ms Alexander had initially requested a vaginal examination. It seems to me that a result of that exchange must have been that subsequent exchanges between the plaintiff and Ms Alexander became increasingly brief and somewhat transactional as the plaintiff continued to decline the requests made.

In those circumstances, it seems likely that Ms Alexander eschewed much in the way of unnecessary contact and explanation and simply returned to the birthing suite at intervals to either deal with a specific issue (such as the plaintiff’s experience of back pain or, on one occasion, to assess the plaintiff’s contractions), or simply to enquire about vaginal examination. In an event of either kind, it is likely that Ms Alexander simply asked the plaintiff whether she would now accede to the requested vaginal examination.

In that connection, I am conscious that Ms Alexander seems to have believed that a vaginal examination was required for at least a bath, to call the Mamta midwife and to be admitted to the hospital. In that sense, in the immediate future at least, vaginal examination was believed by Ms Alexander to be required before several further and significant steps could be taken in the care and management of the plaintiff and her pregnancy.

At [511] he says:

At no point … was any ‘urgent medical reason’ [for a vaginal examination] identified and it was essentially implicit in the evidence that there remained no concern about the plaintiff’s health and that of her unborn child. On each occasion prior to about 1:10am, the plaintiff denied the request.

And at [560]

… the most striking aspect of all of the above is the overwhelming impression that must ultimately have been conveyed to the plaintiff that she had no choice other than to submit to a vaginal examination. In that regard, it is at no point apparent that any advice was given concerning at least the following –

(a) what any other option might have been other than to simply submit to a vaginal examination;

(b) having regard to the plaintiff’s presentation, what the future course of her labour might be expected to be;

(c) what risks the plaintiff or her baby might face in the near future; and

(d) whether, she might be able to simply remain in the birthing suite under the care of the hospital midwives (whose standard of care was said to be no different to that provided by a Mamta midwife), presumably until she either commenced pushing and/or a pressing medical reason emerged (as it later did, more than once).

Further if hospital policies were such that a vaginal examination was required should Ms Gawthrop present outside the normal working hours of the Mamta midwives, that should have been made clear during their antenatal care (at [580(d)]:

…, reasonable care required that –

(i) the plaintiff be advised of the risk that hospital policies could be said to require that she undergo a vaginal examination when there was no urgent medical reason for it; and

(ii) the plaintiff should not be placed in a position in which she believed there was no risk that a vaginal examination might be requested and required when there was no urgent medical reason for it;

The law

As for the law the judge reviewed relevant precedents and texts.  At [489] he said:

In summary –

(a) generally speaking, the common law respects and preserves the autonomy of adult persons with respect to their bodies and those rights can only be altered with the consent of the person concerned;

(b) consent is a state of mind and so means ‘actual consent’;

(c) the basic elements of consent are whether the person is capable of consenting, whether the person is able to make a proper assessment whether or not to consent and whether the person consents freely and voluntarily;

(d) broadly speaking, consent is shown by what a person says or does or does not say or do and that should be considered in all of the surrounding and relevant circumstances;[478]

(e) that said –

(i) it is important to consider whether the person had a choice;

(ii) the issue is whether the person was in a position to choose freely – consent is not vitiated only by force, threats of force fraud or deceit or incapacity;

(iii) ‘relative weakness’ or imbalance of power can bear upon whether a person truly consented;

(iv) free and voluntary consent is not the same thing as non-consenting mere submission;

(v) in that regard, a person can become ‘resigned to their fate’ such that there was, in fact, no true consent;

(vi) there can be a distinction between (1) the situation in which a person freely and independently appreciates and accepts what is to occur and (2) the situation in which the person is vulnerable and subject to ‘over much pressure’ – the difficulty is often where to draw the line; and

(vii) there is no universally valid answer to the question what degree of pressure will vitiate apparent consent; and

(f) in the end, it is for the tribunal of fact to determine whether or not there was ‘valid consent’.

Telling people the consequences is however part of informed consent

If a person is to give informed consent they need to be told of the consequences so they can in fact make an informed decision.  If the consequence of not accepting the drug – or examination – is a risk to their health they need to be told so they can make what is in fact an informed decision.  That is not coercion.

Many might recall the controversy of mandatory Covid-19 vaccinations.  Courts found that there was no unlawful coercion when people were told they either had to have the vaccination or lose their jobs. The fact that various Public Health and other orders made by government and binding on ambulance and health services were part of the environment in which the decision – to accept or reject – the vaccine had to be made.  Given the ambulance and health authorities had no option but to comply with those orders their advice – have this injection or lose your job – was not an unlawful threat but an explanation of the consequences of the person’s decision.  In Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320 (15 October 2021), Beech-Jones CJ at CL said (at [63]):

It can be accepted that there is room for debate at the boundaries of what external factors might vitiate a consent to medical treatment so as to render the treatment a battery and a violation of a person’s right to bodily integrity. The judgment of La Forest, Gonthier and Cory JJ in Norberg was influenced by provisions of the criminal law reforming the definition of consent for assaults including sexual assault (Norberg at 251). However, in the end result, the plaintiffs’ contentions are well beyond those boundaries. People may choose to be vaccinated or undertake some other form of medical procedure in response to various forms of societal pressure including a law or a rule, an employment condition or to avoid familial or social resentment, even scorn. However, if they do so, that does not mean their consent is vitiated or make the doctor who performed the vaccination liable for assault. So far as this case is concerned, a consent to a vaccination is not vitiated and a person’s right to bodily integrity is not violated just because a person agrees to be vaccinated to avoid a general prohibition on movement or to obtain entry onto a construction site. Clauses 4.3 and 5.8 of Order (No 2) do not violate any person’s right to bodily integrity any more than a provision requiring a person undergo a medical examination before commencing employment does.

See also:

It may be that requiring Ms Gawthrop to have an vaginal examination before receiving further treatment may not have vitiated her rights if it had in fact been accurate and clinically indicated.  For example, a patient may need a procedure that can only be completed if there has been appropriate imaging – x-ray, CT Scan, PET scan, MRI or the like.  If the patient refuses to accept imaging, then telling them that they cannot have the treatment – that a consequence of their decision is that the treatment cannot proceed because it is not possible or too dangerous – is simply giving the person information upon which to make an informed choice.

Telling them it cannot proceed because it makes the doctor’s life harder, without stopping to think why is there an objection and is it really true that it cannot proceed, and if we cannot do that ideal treatment is there some other care or treatment we can provide – refusing to engage and instead eschewing … much in the way of unnecessary contact and explanation and simply’ returning ‘at intervals to either deal with a specific issue’ or to ask whether they have yet changed their mind may be sufficient to make any subsequent agreement not a true consent.

Implications for paramedics

It’s hard to draw obvious implications for paramedics.  Part of the problem with this case was that even if the hospital policy was as the midwives thought it was, the health service was in breach of its own policy on informed consent by failing to tell Ms Gawthorp what the likely impact of those policies would be.  It was also inconsistent with Safer Care policies that said (at [140])

Cervical dilatation should not be the sole determinant of safety to return home or admission for ongoing care. An assessment of contractions and the woman’s behaviour and wishes are important considerations.

The equivalent position for paramedics might be a paramedic who wants to say ‘my protocols say for this condition I should administer treatment x, if you do not consent to treatment x I will do nothing else for you’ without considering why the patient refuses x and what alternatives their might be.    A patient may want to refuse any form of injected drugs – for whatever reason.  A paramedic may say ‘but your condition indicates the administration of this drug’ but the patient refuses.  It would be incumbent on the paramedic to try to explain why the drug was required and what the potential consequences of refusing the drug may be.  But if the patient refuses there are still options to the paramedic which may be no more than transport to hospital without any other intervention.  What would not be permissible would be to say ‘if you do not consent to the administration of this drug then I’m not going to bandage your wounds, treat your other conditions, monitor your ongoing vital signs or transport you to hospital’.

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.