For many expectant mothers, creating a birth plan is an important part of preparing for labour. It is an opportunity to think about personal preferences, communicate concerns, and discuss the type of care they hope to receive during one of life’s most significant events.
A recent Victorian Supreme Court decision has highlighted just how significant those conversations regarding consent can be.
In Gawthrop v Bendigo Health [2026] VSC 157, the Court found in favour of a mother who was pressured into undergoing a vaginal examination during labour despite having repeatedly stated that she did not want one performed unless there was an urgent medical reason. The Court ultimately found that her consent was not freely and voluntarily given and as a consequence of the hospital’s actions, the plaintiff suffered a psychological injury. The hospital was liable in both battery and negligence.
More Than a Legal Case
The decision has become an important reference point in discussions surrounding birth trauma, informed consent and maternity care in Australia. However, its broader significance lies in what it says about communication, consent and patient-centred maternity care.
The plaintiff had spent months preparing for the birth of her first child. She had participated in antenatal education programs, carefully considered her birth preferences, and created a written birth plan that expressly stated she declined vaginal examinations unless there was an urgent medical reason. The Court found that throughout her pregnancy she had discussed these concerns with members of her care team and had been reassured that her preferences were achievable.
When she arrived at hospital in labour, however, she was told that a vaginal examination was required before she could be admitted, receive pain relief, or have her chosen midwife called to attend. Over a period of approximately two hours, she repeatedly declined the examination before ultimately agreeing after becoming distressed and believing she had no other option. The Court found there was no urgent medical reason requiring the examination at that time./p>
The Importance of Consent in Maternity Care
One of the most important aspects of the judgment is its emphasis on consent.
Consent in healthcare is not simply about whether a patient eventually says “yes”. The Court examined whether the plaintiff’s agreement was genuinely voluntary or whether it amounted to submission to pressure. It concluded that the circumstances left her feeling defeated, trapped and without a meaningful choice, and that her apparent agreement was not true consent.
This is a critical reminder that pregnant women do not surrender their right to make decisions about their own bodies when labour begins.
Healthcare professionals may recommend examinations, treatments or interventions. They may explain why they believe a particular course of action is advisable. However, informed consent requires more than obtaining agreement. It requires that patients be provided with genuine choices, adequate information, and the opportunity to make decisions free from coercion or undue pressure. The Court found those principles were not met in this case.
How Expectations Around Maternity Care Have Changed
Cases like this also reflect a broader shift in maternity care over recent decades.
There is a now much greater emphasis on shared decision-making, informed consent, trauma-informed care and respect for patient autonomy
Modern maternity care increasingly recognises that a positive birth experience is not measured solely by the physical outcome. The way a woman is treated during labour, the extent to which she feels heard and respected, and her ability to participate in decisions about her care can have lasting consequences for her wellbeing. The Court acknowledged this reality, accepting that the plaintiff suffered significant psychiatric injuries arising from her experience.
Importantly, the Court did not suggest that vaginal examinations are inappropriate or unnecessary. In fact, the plaintiff later consented to several vaginal examinations during labour when their medical purpose was explained and she understood why they were being recommended. The issue was not the procedure itself. The issue was consent.
Birth Trauma Can Be Real Even When Mother and Baby Are Physically Well
A particularly significant aspect of the decision was the Court’s acceptance that the plaintiff suffered a genuine psychological injury.
The Court accepted expert evidence that she experienced anxiety, flashbacks, nightmares, impairment in intimate relationships, effects on family planning, and aggravation of pre-existing trauma. A Medical Panel had also determined that she had a permanent psychiatric impairment. The Court awarded substantial damages for her pain and suffering.
The case serves as a fundamental reminder that birth trauma is not always linked to a physical injury or a poor clinical outcome. A healthy baby does not always mean a positive birth experience. Even where there is no physical injury to mother or child, a traumatic experience during labour can have significant and lasting psychological consequences.
Lessons for Expectant Mothers
This case reinforces the importance of open communication between healthcare providers and patients before labour begins and throughout the birthing process.
Women should feel empowered to discuss their preferences, ask questions, seek clarification about hospital policies, and understand when and why particular interventions may be recommended. Equally, healthcare providers should ensure that those discussions occur early and clearly, so that expectations are aligned before difficult decisions need to be made during labour.
At its core, this decision is a reminder that respect, communication and consent remain fundamental elements of safe and compassionate maternity care.
Concerned About Birth Trauma or Maternity Care?
If you have experienced birth trauma or have concerns about whether appropriate consent was obtained during your maternity care, seeking early legal advice may help you better understand your rights and options.
The team at Commins Hendriks is available to provide confidential, obligation-free advice regarding potential medical negligence claims.