In their newsletter 17 August 2015, DLA Piper highlighted the matter of Oglesby v Nursing & Midwifery Board of Australia [2014] QCAT 701, which concerned a vaginal birth (at home) after caesarean section.

The midwife appealed against orders made by the Queensland Immediate Action Committee, following concerns expressed by two medical practitioners. Ultimately the Tribunal made orders restricting the midwife from performing vaginal birth after caesarean, outside a hospital setting.

The Tribunal commented at [97]:

The real risk, in my view, and one which is open to be found on the evidence, is that Ms Oglesby may not properly inform women in her care of the particular risks associated with their histories and chosen method of birth, such that the women have not made properly informed decisions and given truly informed consent, particularly in the context of patients wanting to have a baby by VBAC in a home setting.

And at [111] – [112] the tribunal discussed the obligations of a midwife when the mother is not receptive to information and advice:

In my view, the analysis which I have performed above of the record of understanding entered into between Ms Oglesby and IC demonstrates that the intent of the guidelines and Appendix A was not met. In my view, it is clear that Ms Oglesby did not engage with IC as intended. She did not provide IC the necessary information in a way which would satisfy Ms Oglesby that IC had been supported in her decision-making. It is not to the point that IC may not have been receptive to information and advice. Far from absolving the midwife of the need to be satisfied that the patient is making a timely informed decision, it heightens the need to do so.
[112] Ms Oglesby’s evidence about those matters demonstrates that she was content to proceed knowing that IC was not listening to any advice given or considering the information provided. The decision to continue care in such circumstances must be questioned.

At [113] the Tribunal concluded that the woman’s right to choose must be respected; but it is a right to an informed choice. It is not to be equated with a right to proceed in ignorance of the facts and risks.

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