Consent in maternity care is essential. Your midwives and doctors must ask for your permission before performing any monitoring, treatment or procedure. Including even the most basic examinations such as taking your temperature or blood pressure. The only exception to this rule is if you do not have the capacity to make your own decisions.
For consent to be valid, you must be well enough to give it. There are two situations when this may not be the case:
- If you were unconscious.
- If you were mentally incapacitated (this is very rare).
Informed consent
Your healthcare providers must provide enough objective, evidence-based and unbiased information to enable you to make an informed decision. In other words, they shouldn’t pressure you into choosing their preferred course of action. They should give you the tools and information to make the choice that you prefer; this includes using jargon-free language, so that you can fully understand what’s being explained! The information must be discussed with you in person and you must be given the opportunity to ask questions.
You can give your consent verbally or in writing, depending on the situation. For example, in an emergency situation there may not be time to get written permission, making verbal consent the most suitable option. Sometimes, a physical gesture is enough. For example, moving to make your bump accessible for your midwife to listen to your baby’s heart rate would be considered consent.
Any surgical intervention does require written consent. Sometimes, your doctor may ask for your permission before knowing the treatment is 100% necessary. So they are ready if they need to make a swift change of plan. For example, if they recommended using forceps to help you birth your baby but wanted the option to switch to a caesarean section if the forceps were not helping birth your baby quickly. In this situation, it may be necessary to consent to the caesarean section while gaining consent for using forceps. It gives you more time to read the literature and ask any questions.
Remember, you always have the right to withdraw your consent if you change your mind!
The role of your birth partner
It is essential to understand that no one can give consent on your behalf. Including your birth partner, even if they are your next-of-kin and know your pregnancy or birth preferences. They can advocate for you and speak up for your preferences, but you must always consent directly.
It can be tricky when the mother does not speak much (or any) English and her birth partner is translating for her. The best practice is for a professional translator to translate the information given by the health professional, ensuring the woman gives her informed consent.
The only time this rule may change is in the case of an emergency when you cannot give consent (for one of the reasons mentioned above). If your birth partner is your next-of-kin, they will be involved in the decisions about your care. The maternity team should also consider your birth preferences.
They can only consent to medical treatment for your baby (after birth) if they have parental responsibility.
Your baby’s rights
“Unborn babies do not have separate legal recognition under the European Convention or in the common law of England and Wales, or the law in Scotland.” Birthrights.org.uk
Only the pregnant parent can legally make decisions for their unborn child during pregnancy, as the baby has no separate legal rights. What this means is that you cannot be coerced into making choices for your unborn baby, even if it causes them harm.
However, this changes once the baby is born. At this stage, medical treatment of your baby can be consented by both parents and/or someone with parental responsibility. This is usually the second parent, but in some situations, a legal guardian. Healthcare providers only need one parent to consent for them to provide treatment to the baby (they will always try to gain the permission of both parents). In rare cases of disagreement, your healthcare team may go to the High Court to decide what is best for the baby.
If your doctors or midwives think you are putting your baby at significant risk of harm, they may refer you to social services. However, they can’t use this information to bully you into accepting a medical intervention during pregnancy, as mentioned above. If the maternity team believe your baby will be at risk after the birth, for example, due to the home environment for reasons such as domestic abuse or drug and alcohol dependance, they are likely to make a referral in pregnancy due to the future risk to the baby.
Declining medical treatment
You have the right to decline medical treatment during pregnancy and labour. Even if that decision may result in serious harm, or death, to your or your baby, as long as you are mentally competent. You are assumed to have the mental capacity to decline treatment unless your medical team can prove that you don’t. This proof requires expert psychological or psychiatric evidence about your state of mind, which may require a court order.
We recognise this is a huge responsibility, not to be taken lightly. This is why medical professionals must tell you the benefits, risks and alternatives to any medical treatment they offer. It is their responsibility to make sure you can make informed choices for you and your baby. In no circumstances are they allowed to bully or force you into making a decision you are not happy with. We recommend using the B.R.A.I.N. tool for big decisions you must make during pregnancy and when giving birth. It provides a simple structure to analyse information and make an informed decision that you feel happy with.
Free Birthing
You have the right to decline all maternity care and birth alone without any health professionals involved – as long as you have the mental capacity to make this decision for yourself. If your maternity team believe you are putting yourself or your baby at unnecessary risk, they may make a referral to social services. It will then be up to the social services team to decide whether they need to investigate a child protection issue.
The law states, “A person other than a registered midwife or registered medical practitioner shall not attend a woman in childbirth.” Article 45, Nursing and Midwifery Order 2001
This doesn’t mean you have to birth alone, you can choose to have your partner, friends and family or a doula present supporting you emotionally and practically.
It simply means no one can assume the role of a midwife, which includes diagnosing, giving medical advice and such as monitoring the baby’s heart rate, vaginal examinations to check dilation, an episiotomy etc. It is a criminal offence to do so and can result in prosecution and a fine of up to £5,000.
The B.R.A.I.N tool again helps weigh up the pros and cons of every birth scenario, empowering you to make an informed decision.
Content Disclaimer
The information contained above is provided for information purposes only. The contents of this article are not intended to amount to advice, and you should not rely on any of the contents of this article. Professional advice should be obtained before taking or refraining from taking any action as a result of the contents of this article. New Life Classes disclaims all liability and responsibility arising from any reliance placed on any of the contents of this article.
References
Association for the Improvements in Maternity Services (AIMS)
NICE Clinical guideline [NG235] Intrapartum care. Published September 2023.
NICE Clinical guideline [CG138] Patient experience in adult NHS services: improving the experience of care for people using adult NHS services. Published February 2012. Updated June 2021.
NICE Guideline [NG179] Shared decision making. Published June 2021
