Gawthrop v Bendigo Health [2026] VSC 157 (Link to AUSTLII).
The plaintiff, for management of her pregnancy, applied to join the Mamta midwifery program at Bendigo Health and was accepted into it. She wrote a birth plan which amongst other things said:
I DECLINE ALL vaginal examinations unless there is an urgent medical reason to do so. Informed verbal consent MUST be given from myself prior. If an urgent medical reason indicates an examination, I DO NOT wish to be informed of my dilation.
On 17 November 2020 the plaintiff’s membranes ruptured. The plaintiff and her husband attended the maternity ward and met Ms Alexander, a hospital midwife as the MAMTA midwife was on leave. The plaintiff consented to certain requested steps, but declined vaginal examination, ‘CTG’ and the administration of an ‘AmniSure’ test (at least initially).
Mr Gawthrop approached Ms Alexander at the nurses station and ‘laid out’ the situation that had emerged (ie, ‘[y]ou’re not going to call our Mamta midwife, you’re not going to admit us to the ward … and you’re not going to provide any pain relief unless Larissa has a VE’) to which Ms Alexander responded ‘Yes, that’s correct’; Mr Gawthrop explained the situation to the plaintiff and then returned to Ms Alexander and said ‘she’ll have the VE’.
A VE was performed at that point and the plaintiff consented to three more later (four had been suggested). The plaintiff consented to vacuum assisted delivery and episiotomy.
Following the delivery, the plaintiff provided feedback to the hospital as follows ([28]).
I would like to mention a concern that we had when we arrived to the birthing suites. We were under the impression we would be “admitted” and my MAMTA midwife notified of this. However, we were told that I was not being admitted but there for an assessment and could possibly go home, my MAMTA midwife would not be called and no pain relief given (if I requested it) unless I had a vaginal examination to “see if I was in labour”. I had been active labouring at home for approximately 4 hours and were advised to go to the birthing suites, my husband notified them that we would not be looking to come home and was under the impression we would be admitted. We had timed all contractions on an iPhone app which indicated active labour for several hours. Throughout all of my appointments during pregnancy with Bendigo Health I was told that I did not have to have any vaginal examinations unless medically necessary. This was extremely upsetting for me at the time, distracting to my concentration and a highly inappropriate time to advise me that this was “necessary” for me to receive care to birth my son. It was very coercive, invasive and I did not have any other choice but to endure an examination that I was not prepared for.
The proceedings issued by the plaintiff addressed consent (trespass to the person) and negligence. The reasons for judgment were very long. The court ultimately held at [561]:
In short, the circumstances to which I have referred indicate relatively plainly that the plaintiff’s stated birth preference was disregarded and circumstances thereafter conspired to pressure and corral her such that she became dispirited and distressed over the course of about two hours in the middle of the night when she was apprehensive, labouring and in pain.
And at [565]:
I am, of course, mindful of the gravity of such a finding. However, the circumstances to which I have referred establish that the plaintiff was not freely, voluntarily and therefore actually consenting when the vaginal examination was performed. It follows that the plaintiff’s claim in assault and battery must be accepted.
In relation to negligence, the contention was that the plaintiff had not given ‘informed consent’, which was a link to alleged non-compliance with the terms of the defendant’s Informed Consent Policy. ([572]). It followed from the earlier findings that the defendant breached the standard of care defined by its own policy. ([576]).
General damages were assessed at $275,000 but her claim for aggravated damages was rejected. Special damages were agreed.
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