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Consent in birth and the Montgomery ruling: why doulas need to understand it

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Emma Ashworth is a Nurturing Birth doula, a trustee of AIMS and she is currently the AIMS Journal Editor. She has a special interest in consent and has written extensively on women’s rights in birth.

What is the Montgomery ruling?

‘Montgomery’ refers to a legal case, formally known as ‘Montgomery V Lanarkshire’, where Montgomery is Mrs Nadine Montgomery, and Lanarkshire is the Lanarkshire Health Board in Scotland. The case was brought after Mrs Montgomery’s son was severely injured during his birth. During pregnancy, Mrs Montgomery was very concerned about her forthcoming birth because she felt that her baby was too big for her to birth vaginally. She had diabetes, was very small herself, and the baby appeared to be large. However, her obstetrician did not offer her a caesarean birth as an option to consider.

During the birth, Mrs Montgomery’s son experienced a very severe shoulder dystocia. After a variety of interventions he was born by caesarean, and now lives with cerebral palsy and a damaged shoulder.

The injuries that occurred during his birth are rare, and, statistically speaking, were unlikely to occur even with the risk factors that Mrs Montgomery had. However, the legal case came about not because of the complications themselves, nor how they were handled, but because the obstetrician made the decision to not share the information about the possible outcomes of a vaginal birth and a caesarean with Mrs Montgomery, thus stopping her from being able to make an informed decision herself over what was right for her. Ultimately, the case came down to whether or not information was shared to support informed decision making – and, the case found, it was not.

What did it change about consent and birth?

Before the Montgomery case, what doctors shared with pregnant women depended, basically, on what other health care providers were sharing. They could decide to limit what information they shared with women as long as other doctors were doing the same. This was known as the ‘Bolam Test’, and it states, “If a doctor reaches the standard of a responsible body of medical opinion, he is not negligent”. This applied to all areas of medicine, and led to many outdated principles still occurring (eg immediate cord clamping) because, from the practitioner’s point of view, if they did what most other doctors did, they had more protection against being sued.

With Montgomery, all this changed. Rather than just relying on what most other people did, practitioners are now obliged to share information on ‘all material risks’, meaning any risk (of an intervention or NOT intervening) that might be important to that pregnant woman or person, irrespective of what was normally done by their colleagues. If followed, this gives the pregnant person information they need to be able to make an informed decision about their own care.

Why do doulas need to know about it?

Sadly, no single legal ruling can resolve all of the problems that we have within the maternity system. Montgomery has given us a hugely valuable legal framework to support informed decision making.  It means that the pregnant woman or person must be offered information to ensure that they are able to make an informed decision about their care. If your client isn’t experiencing this, you can suggest that they raise this as an issue with their health care provider, and remind them that they alone can make decisions about their body.

Unfortunately, there are downsides to this ruling in practice, if not within the aims of the law. The ruling states that providers should ensure that they take “reasonable care” to ensure that “patients” are aware of “material risks”.

The text reads, ‘The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.’

What this should mean is that individualised care is offered, with doctors and midwives ensuring that women are given information that is relevant to them, personally, depending on their personal needs and wishes. What is happening in reality is that doctors and midwives misunderstand this to mean that they have to tell women of every possible horrific outcome that might happen if they decide to decline an intervention, or birth outside the hospital. They seem to be forgetting that their obligation is to offer a balanced picture of all of the material consequences of interventions and non-intervention (when was the last time that you heard all the potential risks of an induction, for example?), and they also seem to be forgetting that women are not obliged to listen to any of this!

Pregnant women are still autonomous beings, and they alone can decide what they want to hear. Our clients do not have to attend meetings with doctors or midwives who they don’t feel are supportive of their rights or decisions if they don’t want to. They don’t have to listen to a stream of possible horrific outcomes if they don’t want to. If they want the information, they can choose to ask for another midwife or doctor, and they can point out that being told only one part of the picture is coercion, not informed consent, and is going against the Montgomery ruling just as much as not being offered information is.

Further reading

The online content of Nurturing Birth’s Expansive Doula Course has a video on consent which includes information on Montgomery.  This presentation is also available to Nurturing Birth graduates who purchase the online modules after completing their Intensive Doula Course. 

AIMS has published a helpful article on the Montgomery ruling by a solicitor who looks at the ways it can be used in medical negligence cases within maternity: https://www.aims.org.uk/journal/item/montgomery

The MDU (Medical Defence Union) has a web page on Montgomery which clearly explains the legal situation: https://www.themdu.com/guidance-and-advice/guides/montgomery-and-informed-consent

Birthrights is continuing its work on consent, following the Montgomery ruling, by offering workshops to midwives and doctors on this topic, and they are part of a team launching an app for women to use in labour: https://www.birthrights.org.uk/campaigns-research/montgomery-and-consent/

Birth and consent: the basics!

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Emma Ashworth is a Nurturing Birth doula, a trustee of AIMS and she is currently the AIMS Journal Editor. She has a special interest in consent and has written extensively on women’s rights in birth.

Your baby… Your body… Your decisions!

When we’re pregnant we are offered so many tests and checks, we’re poked and prodded and our bellies are listened to. We’re even told to “leave our dignity at the door”.

But did you know that you have the absolute right to decide what happens to your body? Did you know that it’s only you who gets to decide whether you have any of the tests, checks or interventions that are offered in pregnancy and while giving birth? Did you know that they are an option, even if they’re not presented to you in that way?

If you’re told that you “have to” do something or you’re “not allowed” to do something, remember that they can’t allow you any more than you can allow them. If you are told what to do, try to change it in your head from, “do this” to “I’m suggesting that you do this and you’re welcome to ask me more about it if you wish, before making your own decision.”

Making your decisions about tests in pregnancy

You have the right to ask as many questions as you want to before you make a decision, and often this is necessary as some of the decisions we need to make are complicated, and need serious thought about the pros and cons. In many cases, it isn’t solely about taking the test, it’s about what the consequences may be, of how your care may change, if you take it and you’re diagnosed with whatever they are testing for.

So let’s look at some of the questions that you might want to consider asking your midwife or doctor, to help you to get the information you need to be able to make an informed decision.

  1. What are the benefits and risks of the test itself?
  2. If I am diagnosed, what will the treatment options be?
  3. What changes to care would be recommended, if any, and why?

A commonly used acronym that can also help is “BRAIN”:

B – Benefits
R – Risks
A – Alternatives
I – What does your Intuition say?
N – What happens if you do Nothing?

You have the right to have as much time as you need to make your decision, even if this means another appointment to talk it through again. Usually you can go away to think about it and come back when you’re ready, if you choose to.

Making your decisions about labour

A common decision that many pregnant women and people have to make is whether or not to accept the offer of an induction at the end of pregnancy. Inductions are not a risk-free process, and this should be explained to you before you decide whether or not to accept one. Unfortunately, as induction has become more common, there is often little time allocated to explaining the risks and benefits, and yet without knowing all of this information the health care providers are not fulfilling their legal duty to obtain informed consent for the intervention. In fact, they are obliged to ensure that you have this information, and it must be unbiased, and where possible, evidence-based. If the advice that they are giving is not based on evidence, but their own opinion or something else, this must be made clear.

If you feel that you don’t have the information that you need to make your decision, you have the right to spend the necessary time with your doctor or midwife until you do. This might not be possible in one appointment but you should be given an additional appointment for as detailed a discussion as you wish. When you make your decision, it must be respected.

Making decisions while in labour

While you are in labour, it is sometimes harder to make decisions and for this reason it can be very valuable to think through in advance what you would or wouldn’t want to accept. One important decision is how you feel about vaginal exams. They are not compulsory. Nobody can put their fingers in your vagina without your consent, at any time, ever, and this doesn’t change during birth. Other common interventions include monitoring your baby’s heartbeat, and you might want to find out about options for pain relief and what the pros and cons are of each type on offer at your chosen place of birth.

During your labour, whether you’ve investigated something thoroughly or something completely new comes up, you still have the right to make your own decision about whether or not to accept it. If you want more information to make that decision you can ask for it.

How can a doula help with your birth rights?

While it’s helpful to know that you can ask for more information, not all midwives and doctors are helpful, and sometimes they can feel challenged, and become defensive or dismissive. The situation can sometimes feel confrontational, and that can be very upsetting for many people.

Doulas can be excellent mediators. They can take away the confrontation and instead support positive communication, helping you to ask the questions you need, and suggesting questions that you may not have thought of. Although doulas can’t give medical advice, they can signpost you to information that you may not have been given. They can remind you that you have rights, and encourage you to recognise your own empowerment.

A doula can help you to plan your birth and they will have knowledge about the options that you might want to consider in advance which you may not otherwise think of. So many people come out of birth saying, “I wish I’d known XYZ”. Having a doula means that you know more – and knowledge is power.

During your birth, doulas can help you to stay grounded and strong. If you feel that you are being pushed into something that you don’t want, they can be another voice to remind the staff that they need to listen to you. They can help you to remember what you wanted, and support you in that decision, or, if you change your mind, your new decision. Crucially, they can help to facilitate communication if there’s an emergency, helping you to understand what’s going on even if the staff feel too busy to take the time to talk to you properly.

Sadly, many women who have experienced birth trauma say that the trauma came from feeling out of control of what happened to their bodies. By knowing that we are the ones who can make decisions for ourselves, we know that we can insist on that information before we agree to anything happening to us, and that itself can lead to a much higher chance of a positive birth, no matter how it ends up. And, if we want support with that, our doula will be there for us.

In February I’ll be looking at the Montgomery ruling, and why we all need to know about it

Slimline Your Christmas Marketing & Slay the Festive Guilt

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Slimline your christmas marketing

Oooh… there’s a whiff of excitement in the air and it smells like cinnamon and mulled wine! People are officially using the C word… which can mean only one thing. How the jeepers did Christmas creep round so quickly?

The Christmas holidays are just around the corner, and those festive fairs and Christmas markets don’t just mark the end of another year.  Second only to the six week summer slog, the Christmas holidays can be a bit of a panic season for doulas, particularly those of you working around children!

Are you already feeling those panic twinges about managing your Christmas marketing? Wondering how to keep your doula offerings visible while you’re taking care of kids, working on a leaner schedule, and relishing in a big plate of turkey, stuffing and sprouts?

Perhaps the odd Cadbury’s Roses or two… three… four!

Well don’t worry! The Nurturing Birth team is on the case and we’re here to share four secrets to keeping your marketing efforts on point so you can slay that festive guilt, and focus on more pressing things, like your next cocktail choice, thinking up creative ideas for Elf on the Shelf or which present to open first!

You see the secret to staying visible, active and sustaining your marketing efforts throughout the Christmas holidays is to take a more relaxed, slimline approach.  This way you’ll still look like you’re blogging, posting on social media, and chatting with your subscribers, but, secretly, you could be lying (totally laptop-less) on the sofa letting your lunch go down and catching up on TV.

Your doula biz doesn’t have to take a back seat, just because you are. So with that in mind, here are…

4 Ways to Slimline Your Christmas Marketing Strategy and Slay the Festive Guilt

Republish your Blogs

You don’t always have to create brand new blogs you know. If you’ve been blogging for a while you’ve probably got more than enough content to republish some of your favourite older articles instead. Your newer followers may not have noticed a particular blog first-time around (or second or third in fact) so don’t worry!

Sharing them again isn’t the lazy-doula’s way out either. Republishing blogs is a great marketing tactic, it gives you the opportunity to update any out-of-date content, it’s great for your SEO and you can even build your mailing list or give your conversions a boost by adding links to your new freebies, products or services.

Schedule Your Social Media

There are stacks of social media scheduling apps around and some are worth their weight in brandy doused Christmas pud! Scheduling your social media in advance gives you that Superdoula feeling of having everything organised for the entire week by 7am on Monday! Scaling back on the number of posts you write and publish is another way to dilute the Christmas biz pressure too.

Maintaining your visibility is important and if the bare minimum is one post a day, then schedule one post a day on each of your social media platforms. Manage your follower expectations by posting that you’re taking a wee break over the festive season. Many of your followers will likely be doing the same so they will totally understand.

Not sure which scheduling app to go for? Here at Nurturing Birth our favourite free social media scheduling platforms are Hootsuite and Later, whilst our fave paid platforms are Post Planner or Buffer.

Create & Schedule Your Newsletter(s)

If you’re a weekly newsletter sender, then ease that festive burden and adopt a monthly approach during December and January. A bumper Christmas edition or two (which also directs your subscribers to your republished blogs) is perfectly acceptable – and sometimes more likely to be consumed. Save more time by creating and scheduling your newsletters in advance and you’ll know your subscribers won’t assume you’ve abandoned them. Ah… the beauty of automation. We love it!

Decide on a Simple Christmas Content Subject and Stick to it

Another great way to avoid trying to post on Facebook while you’re tucking into your trifle is to think about (and plan) the type of content you want to focus on over the next six to ten weeks.  Keep it easy by sifting through your calendar and finding any upcoming National or International days which fit with your industry. Take a handful of your blogs and weave the same subject thread through your social media pages and newsletters too.

In need of inspiration? Check out:

So go and enjoy your Christmas, make family memories (kids grow up so quickly!) and slay that Festive business guilt.

Come January you’ll feel refreshed, rejuvenated and ready to conquer the world, again!

Video interview with Liz Stanford, The Calm Birth School

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Sophie caught up with Liz Stanford who recently took over The Calm Birth School from Suzy Ashworth. They chat about Hypnobirthing, the science behind it, the mind body connection and how empowering it is for women approaching birth. They also talk about how the term hypnobirthing can be off-putting for some and dispel some of the myths around it. Liz shares her experiences of using hypnobirthing for the birth of her three children.

To find out more about Liz and the Calm Birth School visit their website, Facebook Page, Instagram

Click here to watch Sophie’s interview with Alex Heath, Hypnotherapist about Birth Trauma recovery.

Dear Natasha – a response to Grazia Editor Natasha Pearlman’s recent birth trauma article

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Dear Natasha

I read your Times article, now reproduced in the online Mail, with a mixture of emotions – primarily sadness that someone felt so unsupported and uncared for during her birth.  Rage too that our maternity services is able to let women down on what seems like a regular basis and that your story does not stand alone.  And a sense of despair that those of us who work so hard to try and improve the situation aren’t reaching enough people, or having enough of an impact to make the necessary changes.  It is those people who have traumatic or terrible experiences in birth whose voices are heard loudest, and with reason.  No one should have to experience what you went through – no one should feel unheard and unsupported.  No one should feel like their birth experience is still affecting them negatively on a day to day basis years afterwards.

Trauma, for it does seem as if your birth experience has been traumatic for you, is a bitch.  And it can play out in so many ways.  The interesting thing is that someone can have what would be interpreted by many as a traumatic experience and not feel any of the symptoms of trauma at all, and someone could have a relatively “easy” time in other people’s eyes and be left with horrible, recurring feelings.  What matters is the feelings.  And so many of the debriefing and reflecting options available can actually be more negative than positive, helping to retrigger and retraumatise the person involved, allowing the amygdala (the monkey brain) to head off in to fight or flight yet again, stirring up the crazy heartbeat, sweaty palms, bowel-evacuating, dizzy panic feelings once more.  So it is important to find the right option for you in helping to recover from your experience.  Ultimately no one wants to stay in trauma long-term – it affects relationships, self-esteem, life choices.

Birth is a really sticky topic.  It’s emotive.  There are those who fall in to the pro-natural camps and those who are resolutely anti.  As a doula it is often assumed that I wholeheartedly and exclusively support those mothers who want to breathe their babies out in water at home.  And, believe me, those births can be magical to watch.  However, I am not naïve – I realise that that experience is not available to everyone, for many reasons.  I have also supported magical caesarean sections.  Many women choose to work with a doula having had a negative first experience of birth.  Knowing that you have continuous care and attention from someone who has built up a relationship with you, understands your previous experience and the potential trigger points can be invaluable and has been proven statistically.  A doula will help you to negotiate your options with your care-providers, without foisting her personal opinion or judgement on the situation.  She will listen, empower, help to move you to a place of readiness for a subsequent labour.

Antenatal preparation is key and I am really interested to hear people’s experiences of classes and courses.  How to achieve the right balance … how to keep it real without terrifying …  how to show the possible magic without setting up unrealistic expectations … how to help women and couples take responsibility for their unique situation … how to pitch something that suits the women with huge medical complications AND the women who have a low risk, straightforward pregnancy?  It is complicated and I don’t envy the teachers.  I do, in one-to-one situations, always want to look at different potential scenarios so that women are empowered and know their choices – we never know how birth is going to go and sadly I haven’t managed to create a crystal ball or magic wand yet!  But I am passionate about physiology and so shocked and surprised how little emphasis is placed on physiology in antenatal prep.  Understanding how the body works, what causes the mechanical changes – the dilation, the contractions, the pushing etc is invaluable.  But so is discussing comfort measures and that includes pharmacological pain relief.

So, what do I wish for?  More than anything I hope you find a place of acceptance of what happened for you in your birth, a release of the feelings that are affecting you personally and in your closest relationships.  Separate to that I have a much bigger wish, and one that seems challenging given the current state of our NHS.  I hope that we can magic a significantly larger number of midwives in to our birth units, midwives who are properly supported in delivering quality, compassionate care, midwives who are able to be “with woman” as their name suggests, not run ragged, exhausted, unable to eat, sleep or even go to the bathroom during a ridiculously long shift.  I pray for communication and respect between health professionals, a recognition that the job each of us does is valuable.  I pray that anyone who experiences trauma in the birthing room, from mothers to partners to health professionals is able to find an effective way to recover and not carry the trauma forward with them into the rest of their lives.  Perhaps if we get those things there will be more positive stories coming out in the press, rather than distressing ones.  Given that half of the population might choose to have a baby at some point in their life wouldn’t it be great if the majority of what they heard was affirming?

Sophie Brigstocke is an award-winning birth and postnatal doula, as well as Director and Doula Course Facilitator at Nurturing Birth.  See here for more information

Click here to hear Sophie talking about the “superpowers” of doulas, particularly around listening to previous birth trauma experiences

To contact Sophie go to sophie@nurturingbirth.co.uk