Most women we speak to remember the moment differently to how it appears in their notes.
In the notes, it’s a tick and a signature. In her memory, it’s someone standing over her, talking quickly, while she was exhausted, in pain, frightened, and being told this needed to happen now. She said yes. Of course she said yes. What else do you say?
Months or years later — when the injury hasn’t healed, when she’s still in pain, when she’s learned there was another option — that memory becomes a question she can’t put down. Did I actually agree to that?
It’s a fair question. And it’s a legal one.
What consent is supposed to be
The Nursing and Midwifery Board of Australia defines informed consent as a woman’s voluntary agreement to healthcare, made with knowledge and understanding of the potential benefits and risks involved.
Consent can be written or verbal but in both cases note what that definition requires. Not a signature. Not a checklist. Knowledge and understanding.
The 2024 NSW Parliamentary Inquiry into Birth Trauma heard evidence on exactly this point. One doctor who gave evidence described a signature on a piece of paper as a pervasive assumption in medical culture about what consent is — and said plainly that it is not consent. Real consent, on her account, means you’ve had time to take in what you were told, ask your questions, understand the risks, and then agree or disagree.
Another witness, a GP obstetrician, described what it should sound like: this is the fork in the road we’re at, this is what I think is going on, these are the options available to you, these are the pros and cons of each — what do you think?
Compare that to what you were actually told.
What the Inquiry found
The Inquiry was a world first. It received more than 4,000 submissions and held six public hearings across NSW. It was prompted in part by Australian research finding that 28 per cent of women experienced birth trauma, and that more than one in ten reported some form of obstetric violence — a term the World Health Organisation uses to cover things including coercive or unconsented procedures and failure to obtain fully informed consent.
Among the factors the committee identified as driving avoidable birth trauma were inadequate informed consent practices, a lack of respect for women’s birthing choices, and inadequate antenatal education. The committee made 43 recommendations, including reviewing the laws around informed consent and requiring maternity practitioners to undergo informed consent training.
The reason that matters to you is simple. If you’ve been carrying a private suspicion that you weren’t properly told, you are not being difficult, and you are not misremembering a system that works well. A parliamentary committee looked at thousands of accounts and reached the same conclusion.
The conversations that should have happened before the birth suite
One of the strongest themes in the evidence was timing. Amy Dawes of the Australasian Birth Trauma Association told the Inquiry that risk conversations need to happen long before a woman is in the birth suite — pointing out that statistically, around one in five women will have an unplanned caesarean and one in four first-time mothers will have an instrumental delivery, and asking why we aren’t talking about that in advance.
That’s the gap where a lot of harm sits. Women at higher risk of a difficult birth — because of gestational diabetes, body habitus, maternal age, a previous injury or surgery, or a history of sexual abuse — frequently tell us they were never told they were high risk at all. They were never offered a conversation about a planned caesarean. Nobody asked the questions that would have surfaced the risk.
We’ve seen cases turn on precisely this. A woman who’d had a rectal procedure a year before giving birth sustained a fourth degree tear during a forceps delivery, because scar tissue from that procedure made the injury far more likely. Her obstetrician had never taken a proper history and didn’t know. Had he known, the risk should have been explained and an elective caesarean discussed. She was never given the chance to weigh it up.
When a consent failure becomes a legal claim
This is where the law gets more specific than the ethics, so it’s worth being clear.
A doctor has a duty to warn a patient of material risks in a proposed treatment — including risks the doctor knows, or ought reasonably to know, that this particular patient would attach significance to. A failure to do that can be a breach of the duty of care.
But a claim doesn’t stop there. You also need to show that the failure made a difference — that had you been properly warned, you would have chosen differently, and that the harm you suffered would have been avoided or reduced.
It’s also why the phrase “I signed a form” doesn’t end the enquiry. What matters is what you were told, when, in what circumstances, and whether a genuine alternative existed that was never put to you.
Coercion, pressure, and “you have to think of the baby”
The Inquiry also heard about subtler pressures — an induction presented as the only option, guidelines and protocols used to steer women into decisions, and a framing of every intervention as being what’s best for the baby, in a way that makes disagreement feel unthinkable.
If that’s what your birth felt like, then a decision made under that kind of pressure is not the same as a free one, and you’re allowed to name that.
Where to start
You don’t need your records and you don’t need legal knowledge. You need to be able to tell someone what happened, and what you were and weren’t told.
Birth Injury Lawyers is led by Anthony Porthouse, an Accredited Specialist in Personal Injury Law with 36 years in medical negligence and a Doyle’s Guide listing in NSW. We work on a no win, no fee basis, with a fixed fee agreed for each stage of your matter before it starts. And you’ll be talking to a person — always.
Time limits do apply, and they generally run from when a claim becomes discoverable rather than from the date of your birth. If you’ve assumed too much time has passed, that assumption is worth testing.
