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:
- Requiring COVID vaccines for emergency workers (April 1, 2022) and
- WA paramedic’s dismissal for refusing influenza vaccination confirmed (June 10, 2022).
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.
Australian Emergency Law 
In your reference to mandatory COVID-19 vaccination, you state that ambulance and health authorities “had no option but to comply with those orders”.
On what basis do you say they had “no option”?
Given practitioners are bound by professional standards requiring voluntary informed consent (including that consent must be given in the absence of pressure, coercion or manipulation*), how is that reconciled with conditions such as “have this injection or lose your job”?
Why was this not addressed when mandatory vaccination policy was being formulated?
*The Australian Immunisation Handbook – valid consent:
https://immunisationhandbook.health.gov.au/contents/vaccination-procedures/preparing-for-vaccination#valid-consent
You have to remember what the directives said. They did not say that anyone had to be vaccinated. They said that people had to be vaccinated to do certain work or enter certain places such as nursing homes. If we take Victoria as an example (because Gawthrop v Bendigo Health is a Victorian case) the COVID-19 Mandatory Vaccination (Workers) Directions (No 5) was a direction under the Public Health and Wellbeing Act 2008 (Vic). It did not require employees to be vaccinated. It required an employer to ‘not permit a worker who is unvaccinated to work for that employer outside the worker’s ordinary place of residence’ (cl 5(1)). The employer committed an offence if they failed to comply.
So the state ambulance and health authorities had no option but to comply with the law. Just as they cannot permit an ambulance officer to drive without a licence or hold a person out as a paramedic who is not a paramedic, they could not permit a worker to work outside their ordinary place of residence if they were not vaccinated.
The worker, on the other hand, had a choice. They could choose to get vaccinated or not. If they elected not to get vaccinated there were limits on what they were permitted to do and those limits may have been such that they could not do and therefore keep their job. But telling the people the consequence of their decision is not to deny them the option to make a choice but to let them know what the consequence of that choice is. That is the essential part of ‘informed’ consent. At [487] in Gawthorp, O’Meara J quoted a textbook written by Justice Young from the Supreme Court of NSW who said:
The question is what is ‘illegitimate pressure’. It was not illegitimate from employers to tell employees that they (the employer) was not permitted to let them (the employee) do their job if they were not vaccinated. It was not illegitimate as that was the legal position. That was giving the employee relevant information so they could make an informed choice between what they saw as ‘two evils’.
What was different in Gawthorp was that the choice presented – consent to a vaginal examination or get nothing – not admitted, no pain relief and we will not ring your midwife – was not legitimate as it was in fact contrary to the hospital’s policies and the Safer Care Victoria policies. They could have rung the midwife and told her that Ms Gawthorp had not had a vaginal examination and the midwife could have decided what she would do, they could have admitted her and given her a bed and continued to monitor, they could have given her no opioid pain relief – so the choice between a vaginal examination or nothing was not a legitimate choice, and that is the point of distinction.
Thank you for your detailed response.
I think we may be addressing different questions.
Your response focuses on the legal position of employers and the framework considered in Kassam v Hazzard.
My question is directed to the position of the practitioners administering the vaccines.
Registered practitioners are bound by professional standards requiring that consent be voluntary, as set out in:
This was confirmed to me directly by AHPRA in September 2021, in response to correspondence I initiated, (see letter):
That obligation is not expressed as conditional on legal or policy settings.
So my question is:
Where a practitioner knows that a person’s decision is being made under conditions such as “have this injection or lose your job”, how is the practitioner’s obligation to obtain voluntary informed consent to be satisfied?
And further:
What is the practitioner required to do in those circumstances?
You’re right, I’m discussing ‘the legal position of employers and the framework considered in Kassam v Hazzard’. The questions you are asking are outside the scope of this blog.
Thank you for your response – so the question of the vaccinating practitioner’s professional obligation under conditions affecting voluntariness sits outside the scope of legal analysis focused on mandates and compliance?
The post you are commenting on is not ‘focused’ on mandates and compliance, it is focused on paramedics and emergency services. This is not a blog on the regulation of medical practitioner ethics. In any event, I have made the point that letting people know the consequence of their decision is the informed part of informed consent. It does not make the choice involuntary even if it is a choice between two undesired options.
The fact that a person is faced with a choice of have a vaccination or lose your job does not mean that their will is overborne or that they are unable to make the choice between those two options. A person who says to the doctor – I am only having this because I will lose my job if I don’t – is communicating that they are making an informed choice. Just because the choice is between two undesirable outcomes does not mean it is not a choice.
A person who presents to a doctor and on the one hand signs a consent form and presents their arm for injection, whilst clearly distressed, crying and saying ‘I don’t want this’ would, I hope, alert a doctor to the fact that this patient is not consenting and they would not administer the injection.
The fact that people are under pressure to accept treatment does not mean the decision to accept treatment is not voluntary. As Justice Young said (quoted in Gawthrop at [483]):
“Dealing with the matter of whether the consent was voluntary, a major problem is how far economic or other pressures will affect the question of consent. The question of pressure is the wild card in this pack. We are all under pressure of one sort or the other whenever we have to make a decision. That should not destroy the validity of those decisions. At some point, however, the pressure becomes so great, that, at least if the other person to the transaction knows of the pressure, the consenter’s agreement may be vitiated.”
The question of whether someone is giving voluntary consent, even if it is consent to something they don’t want, has to be judged in each case: “… for consent to be genuine, it must be voluntary. The factual context of each case must, of course, be evaluated to determine if there has been genuine consent” (Gawthrop, [463] quoting Norberg v Wynrib [1992] 2 SCR 226 (La Forest J)). There is no axiomatic rule that just because you need to have treatment ‘A’ in order to meet objective ‘B’ that there is no real consent to ‘A’. People accept vaccinations for work, undergo a medical examination for pre-employment or return to work, submit to random drug tests etc because they want to keep their job – or their insurance, or be allowed to travel etc. Whether a person is in fact consenting to vaccination, even if reluctantly, has to be judged in each case.
The fact that a person is consenting to vaccination ‘under conditions such as “have this injection or lose your job”’ does not mean that they are not making a voluntary and informed choice to accept that rather than lose their job. Voluntariness does not equate to happiness.
Thank you for your detailed response.
You frame the issue in terms of whether a person can make a choice under pressure, and whether that choice may remain voluntary even if it is between two undesirable outcomes.
However, this does not address the practitioner’s ethical obligation.
During the COVID-19 rollout, Commonwealth guidance to practitioners – COVID-19 Vaccinations: Handling consent refusal – stated:
This guidance was issued in December 2021, after the Kassam v Hazzard judgment in October 2021, in a context where vaccination mandates had been upheld as lawful. It nevertheless makes clear that, irrespective of mandate settings, vaccination must not proceed in the absence of informed consent.
This gives rise to an unresolved tension. While mandates operated at a system level, the practitioner remained personally responsible for ensuring that consent was voluntary. No clear guidance was provided to practitioners as to how this obligation was to be discharged in circumstances where individuals were presenting for vaccination under threat of loss of employment or other penalties.
The existence of a mandate did not alter the practitioner’s duty, yet it fundamentally compromised the conditions under which that duty was to be fulfilled.
The relevant question is therefore not whether a person can articulate a choice under pressure, but whether a practitioner can be satisfied that consent is voluntary – that is, free from coercion or pressure.
This requirement is set out in The Australian Immunisation Handbook, which defines valid consent as:
The Handbook further specifies that, for consent to be legally valid:
As well as requiring that a person be given sufficient information about the risks and benefits of the vaccine, the Handbook specifies that this includes information about possible adverse events, how common they are, and what action to take.
These elements are not optional. They establish that the purpose of providing information about risks and benefits is to enable a person to decide whether they wish to accept or refuse the intervention, free from coercion. Where acceptance of the intervention is effectively required in order to avoid significant penalty, the purpose of that informational process is fundamentally undermined.
Your example of a person stating, “I am only having this because I will lose my job if I don’t” does not demonstrate informed consent in the clinical sense. Being ‘informed’ refers to understanding the nature of the medical intervention – its risks, benefits, and alternatives – not the external consequences of refusal.
The purpose of providing that medical information is to enable a person to decide whether they wish to accept or refuse the intervention. Where refusal carries significant penalty, the decision is not driven by the person’s evaluation of the intervention itself, and the practitioner must consider whether consent can properly be regarded as voluntary.
Where a person presents for vaccination stating that they are doing so to avoid loss of employment, that condition must be taken into account in assessing voluntariness.
If consent is not voluntary, the practitioner cannot ethically proceed.
This is the practitioner’s personal obligation, as reflected in Good Medical Practice: A Code of Conduct for Doctors in Australia and The Australian Immunisation Handbook, and it is not displaced by the existence of mandates.
Your analysis does not engage with the practitioner’s ethical obligation.
Without voluntary informed consent, a practitioner cannot ethically proceed, and describing a constrained decision as a “choice” does not alter that requirement.
Yes I think we are speaking at cross-purposes. My point is that the fact that a person consents to have a vaccination because they know they will lose their job if they do not, does not necessarily make their decision involuntary. Whether that pressure overwhelms them to the extent that they cannot make an informed decision is a question to be assessed in each case; there is no simple rule.
As for providing the medical information, that the doctor still has to do that was something that I, literally, thought went without saying. A doctor has to inform a patient of the material risks inherent in any treatment (Rogers v Whitaker [1992] HCA 58).
The fact that a person recognises that they have to have a vaccination to keep their job is not sufficient to establish ‘informed consent’; my point is that neither is it sufficient to show a lack of voluntary consent or a lack of capacity for voluntary consent. If a person tells the doctor that they are having a vaccination because they have to that may help inform the doctor that the patient understands one of the risks that have to be balanced in making a decision and it may help inform the doctor that the patient is actually capable of understanding the information they are being given and that they are capable of weighing up the competing costs and benefits to make an informed decision. It in no way exempts the doctor from the need to explain the medical risks and benefits.
What I don’t understand is why you say:
The existence of a mandate did not alter the practitioner’s duty, yet it fundamentally compromised the conditions under which that duty was to be fulfilled.
The relevant question is therefore not whether a person can articulate a choice under pressure, but whether a practitioner can be satisfied that consent is voluntary – that is, free from coercion or pressure.
You’re right the mandate did not alter the practitioner’s duty. Few decisions are free from ‘coercion or pressure’ the question is whether the pressure is overwhelming or illegitimate. The Covid-19 mandates were made according to law so an employer telling a person ‘have a vaccine or you cannot keep your job’ is telling them a consequence that needs to be considered when they decide whether or not to accept a vaccine. And a doctor knowing that knows that the patient is ‘informed’.
Putting a person in a position where they are being forced to make a decision they are not required to make – like have a vaginal examination or we’ll provide no care when that was contrary to relevant policy – is a different matter.
One might want to argue that the covid-19 mandates were illegal but these arguments have generally not succeeded. In Johnston & Ors v Carroll (Commissioner of the Queensland Police Service) & Anor; Witthahn & Ors v Wakefield (Chief Executive of Hospital and Health Services and Director General of Queensland Health); Sutton & Ors v Carroll (Commissioner of the Queensland Police Service) [2024] QSC 2 the Queensland Supreme Court found that the mandates imposed by QPS and QAS (not those imposed by Queensland Health) were invalid because, in the case of QPS, the commissioner did not comply with the terms of the Human Rights Act 2019 (Qld).
His Honour, Martin SJA, held that the obligation imposed on police did restrict the human right guaranteed by s 17 of the Queensland Act that is ‘the right not to be subjected to medical treatment without full, free and informed consent’ (emphasis added) was limited (see [333]). He distinguished however the common law position and that in Queensland which required that consent is ‘full and free, as well as informed …’ ([319]). In any event he would have found the limitation was justified in the circumstances of the Covid-19 pandemic. The problem was one of form not of substance.
It does follow that the pressure imposed by a work related mandate is indeed a genuine pressure but ‘The giving of consent will ordinarily occur as the result of being presented with a choice. And that choice will often be accompanied with some form of pressure, for example, moral, family obligations, or a time limit’ (Johnston, [321]). The questions are is the pressure illegitimate (and the cases have said the covid-19 mandates were not illegitimate) and does the pressure deny the person the capacity to make a choice, not does it put them in a position where on balance they make a choice they would rather not make.
To reiterate, the work mandates do not mean that any decision to accept a vaccination was, or is, not voluntary. The mandates did not remove the need for a medical practitioner to also explain the medical risks and benefits inherent in the treatment. It is then up to each individual to decide whether to accept the vaccination or not.
See also
https://australianemergencylaw.com/2020/04/23/challenging-covid-restrictions-part-1/ and
To be clear, I am not addressing whether the mandates were lawful. The question is how a practitioner is to meet their personal obligation to obtain voluntary informed consent when individuals are presenting under mandate conditions.
You say “The mandates did not remove the need for a medical practitioner to also explain the medical risks and benefits inherent in the treatment. It is then up to each individual to decide whether to accept the vaccination or not.”
The decision in those circumstances is not limited to an evaluation of the risks and benefits of the medical intervention itself, but is made in the context of significant external consequences attached to refusal. The question that arises for the practitioner is whether consent given in those circumstances can properly be regarded as voluntary.
This goes directly to questions about consent and liability that were being raised at the time, particularly in light of government assurances in mid-2021 that practitioners administering COVID-19 vaccines would have indemnity protection.
In July 2021, the Morrison government announced it was establishing a “fit-for-purpose COVID-19 vaccine medical indemnity scheme” to “support increased vaccination uptake by assuring Australians that health professionals, including GPs, nurses and pharmacists administering COVID vaccines as part of the Commonwealth vaccination program have appropriate indemnity coverage”. See this link.
A further government announcement in August 2021 stated:
“The Morrison Government has finalised the details of the no fault COVID-19 Vaccine Claim Scheme following extensive consultation with the peak medical, healthcare, business and insurance sectors to ensure a comprehensive National Scheme”, noting that “[it] also ensure [sic] that health professionals administering vaccines will be able to continue with their crucial role in the vaccine roll out with assurance that the claims scheme will offer them protection”. See this link.
The emphasis was on assuring health professionals they would have indemnity protection so they could “continue with their crucial role in the vaccine roll out”.
On 11 November 2021, Emma McArthur wrote to then Health Minister Greg Hunt seeking clarification on that indemnity position, asking:
“Please could you advise to what extent the Commonwealth Covid-19 vaccine claims scheme provides insurance and indemnity for the civil and criminal liability that would arise where battery and clinical negligence occur due to a failure to obtain valid informed consent?”
See the original email here.
The response from the Department of Health, dated December 2021, advised: “The Scheme does not provide an indemnity for practitioners or insurers…”
The letter also confirmed: “…informed consent should be obtained for every COVID-19 vaccination, as per usual consent procedures for other vaccinations” and referred to The Australian Immunisation Handbook “which has information about ‘valid consent’ including criteria for consent to be legally valid…”
See the original letter here.
On 15 December 2021, several months after vaccination mandates had begun to be implemented across Australia, the Australian Government published the Operation COVID Shield Handling consent refusal by people presenting for vaccination guidance for vaccination providers.
Quoting from this fact sheet, which is accessible via this link:
What is informed consent and why is it important?
Informed consent is an individual’s voluntary decision to agree to a healthcare treatment, procedure or intervention, such as a COVID-19 vaccination, in its entirety, after the individual has been provided understandable, sufficient, appropriate and reliable information about the intervention, including the potential risks and benefits. Consent can be verbal or written.
As a health professional you:
• require informed consent from a patient prior to providing them with a vaccination; and
• have a duty of care to ensure patients are making educated and informed decisions about vaccination.
Can I vaccinate a patient if they are mandated to receive a vaccination?
A patient must provide informed consent prior to vaccination.
If a patient has not provided informed consent, you should not vaccinate them, even if they are mandated to receive a COVID-19 vaccination to perform particular roles or enter certain settings.
End of quote.
The sequence is clear and contemporaneous. Concerns about practitioner obligation, consent, and liability were being actively raised in a mandate environment, and the Australian Government responded – in real time – by reaffirming that practitioners were required to obtain informed consent, defined as a voluntary decision, notwithstanding the mandate framework already in place (for example, compulsory vaccination of aged care workers “as a condition of working in a residential aged care facility, by 17 September 2021”; see this AHPPC statement dated 29 June 2021.)
You say “To be clear, I am not addressing whether the mandates were lawful. The question is how a practitioner is to meet their personal obligation to obtain voluntary informed consent when individuals are presenting under mandate conditions.”
I just don’t understand why that’s an issue. The vaccine was not mandated; they did not have to have the vaccine. They had to have the vaccine if they wanted to continue in employment where that was required but no-one was going to pin anyone down and inject them. The need to have the vaccine as a condition of employment was one of the surrounding circumstances in which the choice to get vaccinated – or not – had to be made. A person can make a voluntary choice even if they don’t want to. I just don’t understand what you see is the issue.
You say “The question that arises for the practitioner is whether consent given in those circumstances can properly be regarded as voluntary” and the law and it is (relevantly) the law that defines voluntary in this context. From a philosophical perspective you might say that a person with a gangrenous leg is not really giving voluntary consent when they are told ‘we have to amputate or you’ll die’ and they consent to the amputation. On one level it could be argued ‘but I had no choice’ – but they did. So it’s the law, not philosophy that’s the issue and the law defines what is meant by ‘voluntary’ and the cases make the point that even where you have to have the vaccine to keep your job, you still have a choice. No-one had to have the vaccine.
My understanding of the vaccine scheme was it was to create a no-fault scheme so if people suffered an adverse effect from the vaccine they would be compensated (a scheme that at least according to recent ABC reports is not working, but that’s another issue). I don’t see how it went ‘directly to questions about consent’.
You say “The sequence is clear and contemporaneous. Concerns about practitioner obligation, consent, and liability were being actively raised in a mandate environment, and the Australian Government responded – in real time – by reaffirming that practitioners were required to obtain informed consent, defined as a voluntary decision, notwithstanding the mandate framework already in place (for example, compulsory vaccination of aged care workers “as a condition of working in a residential aged care facility…”. I accept that’s right. But I think you are arguing a straw man. You are arguing as if the vaccine was mandatory – and if a person has to have the vaccine then informed consent because irrelevant. Like involuntary treatment under the mental health legislation or the medical treatment of prisoners. To say that they have to give informed consent but they have to have the treatment in any event is an oxymoron. But the mandates did not say people had to have the vaccine, it said they had to have the vaccine if they wanted to perform certain tasks but that was a choice, they didn’t have to work as a paramedic or a nurse.
For whatever reason you want to make this arguments you have to address the issue that people llike John Larter did not get vaccinated – In the Court of Appeal, Bell P said (Kassam v Hazzard; Henry v Hazzard [2021] NSWCA 299, [95]-[96]):
“None of those Orders mandated vaccinations nor compelled citizens to be vaccinated, and none of the Plaintiffs in either set of proceedings had been vaccinated…
The Orders recognised that not all workers may choose to be vaccinated, and that choice was respected. Vaccination was not a requirement under the Orders; rather, it was an element of the conditions by reference to which a worker would be permitted to take advantage of an exemption, namely to leave a particular area … or to enter a particular place…”
You’re talking as if the mandates required people to get vaccinated but that is the straw man argument because that was not the position. They required people to get vaccinated if they wanted to continue in particular work.
All the issues you seem to be raising have been addressed in the many cases on the COVID-19 restrictions; there really isn’t an issue.
You say: “You’re talking as if the mandates required people to get vaccinated but that is the straw man argument because that was not the position. They required people to get vaccinated if they wanted to continue in particular work.”
That is precisely the point. When a person presents for vaccination in circumstances where refusal carries serious and known consequences – including loss of employment or exclusion from ordinary aspects of social and economic life – it is not sufficient to say that a “choice” exists.
The fact that a person can identify a choice in those circumstances does not establish that the choice is voluntary.
How can the practitioner be properly satisfied that consent is voluntary when the decision is made under known and significant external constraints?
In your article and comments, you refer to the principles set out in Gawthrop v Bendigo Health. As summarised by the Court ([489]), those principles include that:
As Justice Young observed: “At some point, however, the pressure becomes so great, that, at least if the other person to the transaction knows of the pressure, the consenter’s agreement may be vitiated.”
He also noted that “There is no universally valid answer to the question what degree of pressure will vitiate apparent consent”, and that the assessment depends on all of the circumstances. In the end, that question may be determined by a tribunal of fact.
However, the practitioner must make that assessment at the time, in the clinical setting.
In that context, “the other person to the transaction” – the practitioner – is bound by professional standards. The Australian Government’s Handling consent refusal guidance in place at the time reflected established professional standards. The requirement to obtain informed consent – defined as a voluntary decision – is a fundamental element of good medical practice, as set out in Good Medical Practice: A Code of Conduct for Doctors in Australia and the Australian Immunisation Handbook. It is not satisfied by the mere provision of information. It requires practitioners to ensure that patients are making educated and informed decisions, and not to proceed where consent is not voluntary.
I don’t understand your point. Yes, practitioners have ‘to ensure that patients are making educated and informed decisions, and not to proceed where consent is not voluntary’ and that’s particularly true when there can be very serious consequences. But so what? Some people will be clearly overwhelmed and unable to make a choice – my example of a person ‘who presents to a doctor and on the one hand signs a consent form and presents their arm for injection, whilst clearly distressed, crying and saying ‘I don’t want this’’. Others might be quite clear -the person who says ‘the only reason I’m agreeing to this is because I need it to keep my job’. As the cases says there’s no clear line, the doctors have to make an assessment. The fact that the vaccines were mandatory for some workplaces does not deny the obligation to obtain informed consent nor does it mean that a person subject to that pressure could not give voluntary, informed consent. It’s a case by case judgment.
So what’s your point? That the vaccination is mandatory for some work is one of the consequences to be considered. You say ‘it is not sufficient to say that a “choice” exists’ but that is what Kassam said. The practitioners had a choice, but some choices come with consequences. If you’re saying that this must be a difficult assessment for the doctors that may be true. And some cases will be harder than others; but doctors have to make difficult assessments about competence and consent all the time. So I really don’t understand the point you are trying to make.
I don’t see we can take this much further, I think we agree on what the law requires and required. Before a doctor gives an injection he or she needs the patient’s consent. The consent required to avoid an action in battery is consent in broad terms, ie I understand you are going to put the needle in my arm and inject its contents into me’. To avoid an action in negligence you need to explain to the patients the material risks inherent in the procedure that is those risks that a reasonable person, and to the extent that it’s know this actual person, would consider material (Rogers v Whitaker). To give consent the patient needs to be able to take on board the information given and weigh it up to make a decision. None of that changes because they need to get the vaccine to keep their job.
What the case law stresses is that the people who took the matter to court, like Later and Kassam, did have a choice. They could and did make an informed choice not to have the vaccine. That was their choice; but as Senator Jaccqui Lambie said “You have freedom to make a choice but, if you make a choice, those choices have consequences” (Commonwealth, Parliamentary Debates, Senate, 22 November 2021, 10 (Jacquie Lambie).
This is the situation I am referring to.
A person presents to a practitioner under threat of losing their livelihood and being excluded from everyday life – travel, hospitality, social and cultural activities – and says, in substance, “I don’t want this, but I’m being told I will lose my job and be excluded from everyday life if I don’t have it.”
The practitioner is ethically required to be satisfied that consent is informed and voluntary.
What is the practitioner to do in that situation?
I’ve set out this scenario in an employment context, namely Westpac and Commonwealth Bank vaccine mandates, see my Substack article: “Doctor, I don’t want the vaccine” What happens next?
I also raised these issues directly with Peter King, then Managing Director and Chief Executive Officer of Westpac, in 2023, in relation to Westpac’s employee vaccination mandate, including the question of how such mandates interact with the requirement for voluntary informed consent, see these emails:
– Westpac and Covid jab mandates – why were employees denied a voluntary decision on this medical intervention? 4 January 2023.
– Westpac and Covid jab mandates – was Westpac influenced by News Corp Australia? 3 April 2023. (Includes correspondence with Carolyn Hoy of the Westpac Group.)
I have answered the question ‘What is the practitioner to do in that situation?’ above. They are to assess each person as individuals. The fact that there is a work mandate does not remove the need to obtain the patient’s consent. The fact that there is a work mandate does not necessarily mean that the patient is unable to give, or is not giving, a valid consent.