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This is our blog.  It contains most posts Julian makes at his own blog http://www.westaustralianmedicalnegligence.com, along with posts relating to the firm specifically: If Julian can convince them to do so, it will also include blogs by other staff!

The continuing debate : “natural” v caesarian modes of delivery

I read with interest the recent article in The Guardian provided an update as to the ever escalating rate of cesarean section births in Australia. The article makes all of the well-known [predictable?] arguments in favor of natural delivery.
It is true, the divergence between cesarean section rates in Australia and the World Health Organization’s recommended rate is remarkable.
Unfortunately, what the article does not do (and much of the debate ignores), is a ‘risk-benefit’ comparison of the two options of cesarean versus a natural delivery (in other than high-risk pregnancies). The truth is that there are risks (and benefits) involved with either option. While public perception in this century tends to ignore this; the simple fact is that childbirth is not [yet] a risk-free process, whichever mode of delivery is preferred.
The most interesting issue, not tackled by the article, is why the divergence of rates?
This must result from the relative weighting applied to the pros and cons of the two alternatives, by contemporary Australian society [and mothers]. Obviously, such weighting diverges from the weighting the WHO considers ‘appropriate.’  The really interesting question is what are the factors leading women to increasingly frequently choose caesarian as their mode of preference?
The law in Australia has for a long time (and in the UK more recently) recognized that healthcare choices, including mode of delivery, are for the patient to make, on a properly informed basis. They are not to be dictated by the health professional, the WHO, or population-based policy, at a government level. This is complicated by the fact that the mother is actually making a choice for 2 rather than 1 person. An intriguing (near unique) legal issue is the question of the mother’s obligations when making such choice to weigh the competing pros and cons from her and her child’s perspective. It is clear that in some respects, the unborn child’s interests may point towards one option while the mother’s preference may lie elsewhere.
The “appropriate” rate for cesarean sections in Australia is to be determined by the rate at which properly informed mothers make their choice, one way or the other.
If there is concern at such rate, the ‘answer,’ if there is one, is to better educate parents, to ‘assist’ them to make sensible decisions as to the weight to be attached to the respective pros and cons of one mode of delivery and the other. To do so, once again, requires that this information be clear. To me at least, this is not yet the case in this debate.

UK adopts Australian Law to determine whether a warning of risks of treatment options should be given

The UK has recently altered its position in relation to the important question of a doctor’s obligations to warn their patients concerning risks of treatment.

Preceding the decision in Montgomery v. Lanarkshire Health Board [2015] UKSC 11, delivered on 11 March 2015, the UK had long maintained its acceptance of the so-called Bolam principle, reiterated in the mid 1980s by its House of Lords decision in Sidaway, that the question of what information a doctor was obliged to disclose to their patient, concerning risks involved in proposed treatment was essentially a matter determined by the medical profession. It was a defence to any claim that a relevant risk had not been disclosed, to demonstrate that other reasonable doctors would not have informed their patients of such risk.

The Supreme Court in Montgomery reversed this position and adopted the position that has existed in Australia since 1992 and our landmark decision in Rogers v. Whittaker.

The position in the UK, as in Australia, is now that a doctor’s obligation to disclose information relating to proposed treatment, including as to its risks, is determined by the question of whether the patient would be likely to attach significance to it in deciding whether or not to proceed with such treatment. If the patient would be likely to attach such significance, the doctor is obliged to disclose such information including as to the risk.

The test is “patient driven” as it depends on whether they would consider the relevant risk or other information significant in making their decision, rather than being ‘doctor driven‘ by whether the doctor thinks that they ought to attach significance.

There is some irony in the UK altering its position, given Australia has moved away from such ‘patient driven’ position in relation to other non-advice aspects of medical care, by the Civil Liability Acts.

The UK case is also interesting for obstetric care more generally.

The risk about which it was found warning ought to have been given, was the risk shoulder dystocia may occur if Mrs Montgomery delivered her child by a ‘natural’ or vaginal birth. It was found that Mrs Montgomery would have attached significance to this risk if warned of it. This had not occurred and so such lack of advice was found to have been negligent.

Mrs Montgomery was relatively small and a diabetic. While neither of these factors were particularly rare, they did modestly increase the risks of difficulty if such a dystocia occurred.  Mrs. Montgomery’s evidence was accepted that if warned of the risk of shoulder dystocia, even though this was unlikely and unpredictable, she would have elected to give birth via an elective cesarean section rather than a vaginal delivery.  Interestingly, the Supreme Court reversed the trial judge’s conclusion on this, which had been that a warning as to the risk of shoulder dystocia would not have led to the mother electing to proceed via a cesarean delivery.

This is a very common scenario in day-to-day obstetric care. There are very many patients of small stature and diabetic [whether gestational or otherwise]. The case appears to establish that in the UK at least, such patients need to be warned of a risk of shoulder dystocia because it ought to be accepted that such risk may be of significance to the mother in deciding whether to proceed via a natural delivery or ‘elect’ to have a cesarean.

The facts are an excellent example of the difference between the Rogers test and the Bolam approach.

It is also an illustration of why the Rogers test has been so unpopular amongst some medical practitioners who, rightly or wrongly, say the emphasis on patient autonomy potentially leads to patients making ‘wrong’ or poor decisions based on a flawed assessment (or in truth weighting) of the risks relating to their treatment options.

Midwife versus Obstetrician: which is safer?

I note with interest media attention to the comprehensive study recently completed relevant to the safety of midwifery care (in part as an alternative to obstetric medical management) across all pregnancies.

This study confirmed that over an impressively scaled and vigorously qualified study group, the relative safety of midwife managed pregnancies, including labour and delivery was confirmed. This included high risk pregnancies, in which a view has previously been held that obstetric management would be significantly safer. Women were generally no safer with an obstetrician involved in their care.

Interestingly the study also found a significantly reduced proportion of deliveries in which instrumental assistance via forceps etc occurred, without harm to the outcome. Whilst this was not surprising, the fact that the safety of outcomes did not seem harmed by this reduction is.

Further, though in my view, less importantly, it was confirmed that the overall costs associated with pregnancy and labour were on average more than $500.00 less when a midwifery care model was used than otherwise. This is a significant cost difference when the number of woman giving birth each year in Australia is considered.