Bashi Hazard, Competition and Consumer Lawyer - Human and Consumer Rights in Pregnancy and Birth - The Future is Now

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Information about Bashi Hazard, Competition and Consumer Lawyer - Human and Consumer...
Health & Medicine

Published on March 19, 2014

Author: informaoz



Bashi Hazard, Competition and Consumer Lawyer delivered this presentation at the 2013 Obstetric Malpractice Conference. This is the only national conference for the prevention, management and defence of obstetric negligence claims.

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Human Rights in Childbirth Bashi Hazard B Ec., LLB (Hons) (USyd)

Outline • The development of human rights discourse in relation to childbirth • Human rights principles: what they are and the caselaw either affirming or denying them (including recent Thurgood inquest) • What it means to women, the consumers of maternity services

“I was lucky…”

Where • Milbank Foundation (US) • Childbirth Connection (US) • Coalition for Improving Maternity Services (US) • Choices in Childbirth (US) • Primal Health Research Databank (EU) • Fathers to be International (US) • Cochrane Collaboration (Int) • International Motherbaby Childbirth Organisation (int) • Our Bodies Ourselves (US) • Alliance for the Improvement of Maternity Services (US) • Better Births NHS TRUST (UK) • Association for the Improvement of Maternity Services (UK) • Birth Choice UK • Lamaze International Courtesy of Anne Taintor Organisations

Reports • WHO: Determinants of caesarean section rates in developed countries: supply, demand and opportunities for control (2010) • WHO: The Global Numbers and Costs of Additionally Needed and Unnecessary Caesarean Sections Performed per Year: Overuse as a Barrier to Universal Coverage (2010) • Amnesty International: Deadly Delivery – the Maternal Healthcare Crisis in the USA (2010) • USAid/Harvard School of Public Health: Exploring Evidence for Disrespect and Abuse in Facility-Based Childbirth

While it is likely that disrespect and abuse are often multi-factorial and may be perceived differently and sometimes normalized depending on the specific setting, many stakeholders and maternal health experts agree that disrespect and abuse in facility based childbirth represent: • a global problem affecting low, med and high income countries; • important causes of suffering for women, • an important barrier to skilled care utilization, • important quality of care problems, and • a violation of women’s human rights. Report on Abuse and Disrespect

Why do human rights matter in childbirth? • Human rights are universal ‘All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.’ Article 1, Universal Declaration of Human Rights • Health Issues “There has been an increasing understanding at the international and regional levels that reducing maternal mortality and morbidity is not solely an issue of development, but a matter of human rights.” Report of the Office of the United Nations High Commissioner for Human Rights on preventable maternal mortality and morbidity and human rights (2010) • Emotional Trauma “I limped out of hospital feeling like I'd just left a battlefield and I had the wounds to prove it” Heidi Davoren, “Battle Scars” Brisbane Times

Respectful Maternity Care – The Universal Rights of Childbearing Women “A woman’s relationship with her maternity providers is vitally important. Not only are these encounters the vehicle for essential lifesaving health services, but women’s experiences with caregivers can empower and comfort or inflict lasting damage and emotional trauma. Either way, women’s memories of their childbearing experiences stay with them for a lifetime and are often shared with other women, contributing to a climate of confidence or doubt around childbearing.” (2011)

Principles: human dignity ‘Humanity itself is a dignity; for a man cannot be used merely as a means by any man but must always be used as an end.’ Kant, Metaphysics of Morals ‘All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.’ Article 1, Universal Declaration of Human Rights ”Images still haunt me to this day of being “shackled up” to a hospital bed, my legs placed into those awful stirrups whilst I have painful needles inserted into my vagina…(which was) at one stage exposed to a whole congregation of male students who were following the female OB…without being asked whether this was ok with me….” (TK 2011)

Principles: respectful treatment Declaration on the Elimination of Violence against Women: “For the purposes of this Declaration, the term "violence against women" means any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation whether in public or in private life.”

Skol v Pearce (2009) [Pearce] examined Skol during a contraction and decided she did not need any pain relief. He repositioned Skol in the stirrups so that her toes were turned in (pigeon toed) and her buttocks were no longer on the table. Skol had to support herself with her arms. She told him her right leg was cramping, and that she had two herniated disks in her back, but he ignored her and said, “Shut up, shut your mouth and push.” After the birth, Pearce demanded a 25 gauge needle to inject the local anesthetic for the purposes of stitching. A 25 gauge needle was not even stocked on the obstetrics floor, as the hospital used them for spinal taps. The anesthesia was inadequate, Skol began to squirm and scream, so Pierce ordered Skol’s husband to hold her down until he finished stitching. Her husband did as he was told.

“Care providers who relied on surveillance, interventions, and plotting courses that emphasized risk were more likely to exert their control and feel strong through minimizing women’s power and control and, ultimately, their integrity. Some care providers talked about “pulling the dead-baby card” when their need for control and power was more important than women’s control, whether or not the baby was at risk.” Hall, Tomkinson & Klein (2012) “Either this baby is going to come out or it is going to die” “Call for blood, this woman is definitely going to hemorrhage to death” Skol v Pierce (2009)

Principles: autonomy and consent (UK) ‘A competent woman, who has the capacity to decide, may, for religious reasons, other reasons, for rational or irrational reasons or for no reason at all, choose not to have medical intervention, even though the consequence may be the death or serious handicap of the child she bears, or her own death.’ Court of Appeal, Re MB (1997) ‘In our judgment, while pregnancy increases the personal responsibilities of a woman, it does not diminish her entitlement to decide whether or not to undergo medical treatment. Although human … an unborn child is not a separate person from its mother. Its need for medical assistance does not prevail over her rights. She is entitled not to be forced to submit to an invasion of her body against her will, whether her own life or that of her unborn child depends on it. Her right is not reduced or diminished merely because her decision to exercise it may appear morally repugnant.’ Court of Appeal, S v St George’s Healthcare Trust (1998)

Principles: autonomy and consent (US) ‘“We emphasise, nevertheless, that it is an extraordinary case indeed in which a court might ever be justified in overriding a patient’s wishes and authorizing a major surgical procedure such as a caesarean section.” In Re AC (1990) “Court-ordered interventions in cases of informed refusal, as well as punishment of pregnant women for their behavior that may put a fetus at risk, neglect the fact that medical knowledge and predictions of outcomes in obstetrics have limitations.” ACOG Committee of Ethics 2005

Principles: autonomy and consent (AU) “Such decisions are bound up with individual freedom and autonomy. The duty of care proposed to the foetus (when born) will be mediated through the mother. The damage alleged will be contingent on the free will, free choice and autonomy of the mother. These circumstances can be expected to make it difficult for a court to assume that a possible conflict between the interests of mother and child would be "exceptional” and to complicate the task of a court in formulating normative standards of conduct against which breach of such a duty of care could be assessed.” Harriton v Stephens (2006) 226 CLR 52 per Crennan J The birthing woman is the only person with the authority and responsibility to decide what she needs during her child’s birth.

Best interests or coercive control? “…the default position is that the woman is unable to understand the information provided and therefore is incapable of acting in her own best interests. “…the concept of “evidence” in evidence based medicine ought to be expanded beyond the scientific information in order to avoid “coercive control” by physicians. A patient’s values and goals also contribute to the evidence of what is in her best interests. A patient may have psychological, religious, cultural and other priorities that frame her worldview and therefore dictate one course of action over another. Importantly, a part of this framework may include distrust of the medical system or physician, in circumstances that may further bias a patient against the physician’s counsel. It is the physician’s job to elicit these values and make treatment recommendations accordingly.” Dworetz MD & Schonfield

Healthcare practices that violate human rights Physical abuse: non-consented force, restraint, unnecessary procedures including episiotomy or cord clamping, failure to provide pain relief Disrespect: verbal abuse, bullying, blaming, humiliation, reprimands, ‘shroud-waving’ Non-confidential care: unauthorised revelation of personal details, physical exposure Non-consented care: procedures performed without adequate information or dialogue to enable autonomous decision-making, undue pressure to make specific clinical choices Misinformed care: biased, non-transparent clinical information, disabling women from giving true informed consent, breech birth is particularly interesting on this point Depersonalised care: inflexible application of institutional policy, failure to take into account women’s individual circumstances, including around companionship of choice Discriminatory care: unequal treatment based on personal attributes such as age, race and disability Abandonment of care: refusal to provide care due to inability to pay or birth choices outside guidelines (Draws on the White Ribbon Alliance, Charter for Respectful Maternity Care)

• Non-confidential care Disclosure of Ms Thurgood’s intention to birth at home to another doctor without her consent • Non-consented care Put undue pressure on Ms Thurgood to make specific clinical choices by appearing to side with Ms Thurgood’s doctors • Abandonment of care Terminate care at 42 weeks pregnancy or during labour if Ms Thurgood refuses to cooperate.

Caregiver attitudes to autonomy Do health professionals have a clear understanding of the legal framework in which they operate? ‘Maternity care professionals demonstrated a poor understanding of their own legal accountability, and the rights of the woman and her fetus. Midwives and doctors believed the final decision should rest with the woman; however, each also believed that the needs of the woman may be overridden for the safety of the fetus. Doctors believed themselves to be ultimately legally accountable for outcomes experienced in pregnancy and birth, despite the legal position that all health care professionals are responsible only for adverse outcomes caused by their own negligent actions.’ Kruske et al (2013)

Principles: choice The Court is satisfied that the circumstances of giving birth incontestably form part of one’s private life for the purposes of [Article 8]. … ‘The Court considers that, where choices related to the exercise of a right to respect for private life occur in a legally regulated area, the State should provide adequate legal protection to the right in the regulatory scheme. … In the context of home birth, regarded as a matter of personal choice of the mother, this implies that the mother is entitled to a legal and institutional environment that enables her choice, except where other rights render necessary the restriction thereof.’ Ternovsky v Hungary (14 Dec 2010) European Court of Human Rights Application No 67545/09.

Legal Organisations • HRiC – Human Rights in Childbirth • Birth Rights UK • USAID • White Ribbon Alliance • Amnesty International • National Advocates for Pregnant Women Courtesy of Anne Taintor

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