She was 29 weeks into her first pregnancy when she started asking questions her midwife didn’t seem to want to answer. She wanted to understand why induction was being recommended. She wanted to know if there were alternatives. She wanted to understand what the risks actually were. The response she got — more than once — was a variation of the same phrase: “This is what we recommend. It’s for the safety of the baby.”
She consented. She didn’t feel like she had a choice.
What happened during that delivery left her with injuries she is still living with today. And when she finally spoke to a lawyer, years later, one of the first things she said was: “I didn’t know I could say no. I didn’t even know I could ask more questions.”
That sentence — in different forms — is one we hear regularly. And it sits at the heart of one of the most important and least understood areas of birth injury law: informed consent.
What is Informed Consent — Really?
In plain terms, informed consent is your right to make a genuine, voluntary decision about any medical procedure — based on complete and accurate information about what is being proposed, what the risks are, what the alternatives are, and what happens if you decline.
It is not a signature on a form. It is not a clinician telling you what they are going to do and asking you to sign. It is not a rushed explanation in a corridor while you are already in labour, in pain, frightened, and without your support person.
The 2024 NSW Parliamentary Inquiry into Birth Trauma heard extensive evidence on this point. A specialist obstetrician giving evidence drew a clear distinction between signing a consent form and actual informed consent. Real consent, she explained, involves presenting the clinical situation clearly, laying out the available options, explaining the risks and benefits of each, and then asking the woman what she thinks — and genuinely waiting for her answer.
The Inquiry found that many women in New South Wales did not receive this standard of consent during their birthing experience. Many reported feeling coerced into decisions. Many were not offered alternatives to the procedure recommended. And many — particularly women with high-risk pregnancies — were not given adequate information about their risk factors at any point during their pregnancy, let alone during labour.
Why Informed Consent Matters Legally
Under Australian law, the failure to obtain genuine informed consent is a recognised form of medical negligence. It does not require that the procedure was performed incorrectly. It does not require that the outcome was the worst possible one. The question is simpler — and more powerful — than that.
The question is: if you had been properly informed of the risks, and properly offered the available alternatives, would you have made a different decision? And if you had made a different decision, would you have avoided the injury you suffered?
This is the test that Australian courts apply — and it has teeth. A woman who was not told that forceps delivery carries a significantly elevated risk of severe perineal tearing, and who was not offered a caesarean section as an alternative, and who went on to suffer a fourth-degree tear that left her with lifelong bowel and pelvic dysfunction — that woman may have a strong claim grounded entirely in the failure to inform.
Not because the forceps were misused. Not necessarily because the surgery was technically wrong. But because the choice was made for her, without her genuine agreement.
What Should You Have Been Told?
One of the questions we ask in every birth injury assessment is: what information was the woman or mother actually given, and when? The timing matters as much as the content.
A competent clinician does not wait until a woman or mother is in active labour — exhausted, in pain, and without adequate time to process — to have conversations about the risks of the birth plan. Those conversations should happen during the third trimester, when a woman or mother is calm, has access to support, and can genuinely weigh her options.
The risks that should be discussed openly and specifically include:
- The risk of perineal tearing during vaginal delivery, including third and fourth degree tears, and the consequences of those injuries
- The elevated risks associated with the use of forceps — including severe tearing, pelvic floor damage, and the risk of bowel and urinary incontinence
- The comparative risks of vacuum extraction versus forceps, and the circumstances in which each is appropriate
- The option of caesarean section — elective or emergency — and when it would be clinically preferable
- Any risk factors specific to the woman’s pregnancy or medical history that elevate her personal risk
Expert evidence given in actual birth injury litigation has been unambiguous on this point. In one case, an expert obstetrician reviewing a forceps delivery that caused catastrophic fourth-degree tearing found that the obstetrician had spent four minutes with his patient before proceeding — without discussing any of the available options, without involving her in the decision at any meaningful level, and with a consent form that referred simply to “childbirth.” His assessment: the doctor had not treated his patient as a competent adult.
The Particular Risk for High-Risk Pregnancies
Women with high-risk pregnancies have a heightened right to information — and face a heightened risk of not receiving it.
The Parliamentary Inquiry heard that many women with risk factors including gestational diabetes, obesity, advanced maternal age, previous obstetric history, and childhood trauma reported that they were never adequately counselled about how those risk factors affected their birth options. Some asked for elective caesarean sections and were refused, without being told why. Some were given no information about how their specific circumstances elevated their risk of injury.
Jennifer’s story is one example. A young Indigenous woman with a history of childhood sexual abuse — a documented high-risk factor for birth trauma — requested an elective caesarean section during her antenatal care. No arrangements were made. She was admitted to a public hospital in labour with an abnormal CTG showing foetal distress, discharged home, readmitted the following day, and ultimately delivered vaginally after further delays — suffering a third-degree tear in the process. Her claim settled for $400,000 inclusive of costs.
The failure in Jennifer’s case was not confined to the delivery itself. It extended back through her entire antenatal care — through every appointment at which her risk factors were present but not properly addressed, every conversation that should have happened but didn’t.
Coercion is Not Consent
One of the more confronting findings of the 2024 Inquiry was the number of women who described something beyond a failure to inform — they described feeling actively pressured into decisions.
Maternity Choices Australia gave evidence about the subtle forms of coercion that appear in maternity settings: presenting induction as the only viable option without explaining alternatives; framing resistance to a recommended intervention as dangerous to the baby; using time pressure during labour to prevent genuine deliberation. The Inquiry found these practices to be widespread and contributing directly to birth trauma.
If you felt during your birth that you had no real choice — that saying no was not actually an option — that experience deserves to be examined. It may reflect a failure of informed consent that is compensable under Australian law.
How We Assess an Informed Consent Claim
When we review a potential informed consent claim, we are looking at a specific sequence of questions. What risk factors were present? What should the woman have been told, and when? What was she actually told? Was she genuinely offered alternatives? What decision would she have made if properly informed? And would a different decision have led to a different outcome?
These cases require detailed medical records, expert obstetric opinion, and careful legal analysis. They are not simple — but they are very much within the reach of Australian birth injury law. And they are pursued and won regularly.
The woman who opened this article — the one who said she didn’t know she could say no — eventually brought a claim that resolved for more than $750,000. Her obstetrician had failed to take a full medical history, was unaware of a prior surgical procedure that created elevated risk, and proceeded with a vaginal delivery without ever discussing the alternative of elective caesarean section. She was not told because he did not know. He did not know because he did not ask. That gap — between what he knew and what he should have known — was the foundation of her claim.
You Had the Right to Know
If there was a risk associated with your birth that you were never told about — if a procedure was performed without you being offered a genuine choice — if you feel, looking back, that decisions were made for you rather than with you — you may have rights that you have not yet explored.
You do not need to have a clear picture of what went wrong to reach out. That is what the investigation is for. What matters is that you feel something was missing — and that you are willing to ask the question.
This information is general in nature and does not constitute legal advice. Every case is unique. We encourage you to contact us directly to discuss your specific circumstances.
