Chapter 4 Legal framework for care in obstetrics and gynaecology

Legal framework for care in obstetrics and gynaecology

Litigation is one of the health service’s most pressing concerns, and obstetric litigation one of its most prominent features.

Whereas medical ethics are protected by codes monitored primarily by the medical profession, human rights are protected by national laws and constitutions. The International Federation of Gynaecologists and Obstetricians (FIGO) constantly emphasizes the importance of the medical profession in upholding these human rights and supporting women’s right to autonomy and confidentiality.

Sexual and reproductive rights are the key to the survival and health of women around the world, and understanding the relevance of respecting and promoting these rights is critical to the provision of current standards of care. Women’s sexual and reproductive health is often compromised not by the lack of medical knowledge, but because of infringements of their basic human rights. These rights are often fraught with controversy, requiring the involvement of multiple stakeholders including healthcare providers, policy-makers, parliamentarians, lawyers, human rights activists, women’s groups and society at large, in order to make advances.

Sexual rights These include

• women’s right to have control over and decide freely and responsibly on matters related to their sexuality, including sexual and reproductive health, free of coercion, discrimination and violence.

• the ability to enjoy mutually fulfilling sexual relationships.

• freedom from sexual abuse, coercion or harassment.

• safety from sexually transmitted diseases

• success in achieving or preventing a pregnancy.

‘Reproductive health services’

These include

• family planning services

• prenatal care, safe delivery and postnatal care, especially breastfeeding and infant and women’s healthcare

• prevention and treatment of infertility

• safe abortion (where it is legal), including prevention of abortion and post-abortion care

• prevention, diagnosis and treatment of reproductive tract infections and sexually transmitted infections (STIs).

Legal aspects of practice and women’s rights

Although Obstetricians and Gynaecologists are natural advocates for women’s health, they are often found to be limited in their understanding of the application of national laws regarding sexual and reproductive health and rights and in the limits of conscientious objection. This is probably because ethical and legal education is not yet part of the postgraduate curriculum in Obstetrics and Gynaecology. The need for this and how this may be undertaken in the UK has been discussed by Kalu and Chowdhury (2005). This chapter outlines the framework for sexual and reproductive rights, and explores the relevance of various aspects of the law to the practising clinician. Issues such as access to information and care, confidentiality and informed consent have been discussed in the previous chapter.

• Not every medical mishap gives the patient the right to sue for damages, as the success of a claim depends on the ability of the injured party to prove negligence.

• In law, negligence is defined as the breach of duty to practise to the standard of care that must be a proximate cause of substantial injury to a patient.

• The following elements should be established in order to document a negligent action:

• the defendant was duty bound to take care

• the defendant was in breach of that duty or was careless in his duty

• the patient was injured as a direct result of the negligent action

• a causal relationship existed between injury and breach of care. Medical negligence in obstetrics

Dual patient-hood makes medical negligence in Obstetrics especially complex. The mother and child usually share a set of congruent interests, but when these diverge, i.e. a mother puts her interest above that of the fetus, a maternal–fetal conflict arises. When faced with competing interests, the law requires that the mother’s autonomy be protected, because it is illogical to deprive the mother of her right to self-determination by virtue of her pregnancy. Therefore, although constantly mindful of fetal interests, the Obstetrician is expected to consider these as secondary when juxtaposed against maternal wishes and is required not to impose medical opinion upon his/her patient.

Establishing medical negligence in obstetrics

According to the above-mentioned principles of medical litigation, for medical negligence to be established, there must first be a doctor–patient relationship that gives rise to the duty of care which is subsequently breached. A doctor–patient relationship is generally considered as built at the time of the first consultation. A telephone advice prior to the first consultation is considered insufficient to create a duty of care before the first consultation.

In Obstetrics, this relationship is unique as there is more than one patient that could be affected by acts or omissions.

• The Bolam principle: The appropriate standard of care required by the above duty is one that optimizes maternal objectives. The common law standard of care is found in the Bolam principle, which establishes the criteria for competent medical practice. This states that ‘A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art’.

• The Bolitho qualification: The Bolam principle has been criticized enormously for effectively sanctioning any practice that is supported by a body of medical opinion, possibly ‘reducing medical negligence to being determined by the lowest standard of care (accepted by the medical profession) rather than reasonable contemporary standards (expected by the community)’. This was later modified when the Court of Appeal stated that ‘if in the rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible.’ This has come to be called the Bolitho principle.

• The use of clinical guidelines: The standard of care in Obstetrics should be one that optimizes maternal objectives in the labour process. However, this standard of care is unique when contrasted with other areas of medical practice because of the unpredictable nature of labour. A modification of the current adoption of Bolam with Bolitho is often required in Obstetrics in the determination of the standard of care, and there is now a growing trend in the use of clinical guidelines to determine the applicable standard of care. The UK courts have used guidance from the Royal College of Obstetricians and Gynaecologists (RCOG) in the recent past. Consent in obstetrics

The doctrine of informed consent

Of the 500 cases involving medicolegal obstetric and gynaecological claims, studied by B-Lynch et al., 7% were the result of failure of communication. This failure to communicate, often resulting from inadequate consent, accounted for £30 million in litigation claims in the UK in 2004. Legally, patients can pursue a remedy in the civil courts for having been deliberately touched without consent (battery) or for not having received enough information about the risks of the proposed procedure (negligence). A valid consent therefore licenses what would otherwise be unlawful. Consent and the need for it, is a legal reflection of the ethical principle of respect for the patient’s individual autonomy. In the UK, as opposed to Canada and Australia, the overall burden of proving lack of consent is still upon the patient. Having said that, in the light of the Chester v Afshar case, English law is now one step closer to the doctrine of informed consent.

Maternal autonomy

The Obstetrician faces a unique decision-making process because he/she is effectively providing treatment to two patients, while one is ‘within and dependent upon the other’, but the trite law that the mother’s autonomy prevails holds true at all times.

Court-ordered Caesarean sections

If a woman in labour is considered ‘competent’, an emergency application made to the courts for the performance of a Caesarean section should be considered a gross violation of patient autonomy and of the woman’s basic rights to bodily integrity, a fair trial and equal treatment. Such interventions are virtually never justified and have been aptly described as ‘indefensible practices in the name of defensive medicine’.

Emergency obstetric procedures

In the UK, public policy would demand that it is to the public’s benefit that unconscious patients who require emergency treatments should be able to receive it. If the mother had the foresight to make an advanced medical directive, the doctor has a better indication of her wishes. If not, and in an emergency situation where the doctor does not have the privilege of consulting the patient, the Obstetrician is allowed to act in the best interest of the patient, his/her first priority being the mother’s interest, even without regard to the fetus.

The concept and implications of ‘maternal immunity’

It may happen that an obstetrician follows the mother’s instructions and that a baby is born damaged as a result. Although, it may be arguable that the mother should be liable, as against her child the action against the mother is unenforceable due to maternal immunity. It can be argued, however, that the doctor, having given advice and offered his recommendations, should then not be made to suffer for the wilful decision of the mother either. The law is unfortunately silent about whether the child in this circumstance is allowed to sue the obstetrician.

Informed consent for obstetric research

Obstetric research is now governed by the Research Governance Framework for Health and Social Care, issued by the Department of Health (DH), which states that informed consent is at the heart of ethical research. In Obstetrics the problems of gaining informed consent prior to research can be particularly difficult, because most of Obstetrics is acute and requires emergency procedures and the impact of research interventions may have major implications for the health or welfare of the fetus, an area that is highly risky from the medicolegal perspective. Besides, mothers may be unwell or in pain and some mothers may legally be children themselves. Prior to obtaining an informed consent it is vital that competence is established and that the mother understands the detailed specifics of the proposed study, including difficult concepts such as randomization and blinding, and that the study is voluntary and that failure to consent will not jeopardize her care. When research involves interventions in emergency situations, and there is no time to obtain informed consent, it may be appropriate to commence studies on the basis of an initial simplified explanation provided that the issue of information and consent is regularly revisited and the parents are free to withdraw from the study at any time. It must be understood that informed consent to research is impossible from the fetus, even though it may be benefited. In practice, the consent of the mother-to-be is held to be sufficient consent on behalf of the fetus, but there will be a natural reluctance to rely upon this when it comes to research that may carry some significant risk, even if the resultant child is a potential beneficiary. The best way forward is to think about preparing the ground long before the acute or emergency situations arrives, which is achieved by endeavouring to inform all patients about medical research, using leaflets for example, so that they are in a better position to understand if they are approached about a specific study. Preventing damage in obstetrics

Avoiding physical harm

The doctor clearly has a duty not to cause physical harm in the care of the mother and fetus before, during or after pregnancy. This duty is particularly important in maternal–fetal conflicts, where the proposed treatment may be harmful to the mother.

Avoiding psychiatric harm

This includes not causing distress to the mother by imposing treatments on her. Psychiatric trauma is long term in nature and extends beyond the immediate temporary shock or grief in the labour ward. Nervous shock claims were first established in UK by Dulieu v White, where it was held that it was unreasonable not to recognize nervous shock where physical injury is directly produced by it.

Damages for a stillbirth

The ancient common law principle suggests that no person has an interest in the life of another. This would imply that the mother should not be compensated for the death of her child where the child was not born alive. However, the mother should be compensated for the nervous shock of having to deliver a stillborn caused by negligent acts. But for the negligent acts of the Obstetrician, the mother would have been able to experience the joy from the time and energy that she had invested for the birth of her child. Damages in the case of stillbirth have been awarded under the following pretexts, among others:

1. deprivation of the satisfaction of carrying the baby to full term;

2. disappointment of unfulfilled family plans;

3. being deprived of the joy in raising a healthy child;

4. initial prolongation of labour; and

5. additional pain.

Economic loss

Additionally there should be compensation for economic loss arising as a consequence of injury inflicted by obstetric negligence. Infants born brain-damaged as a result of negligence should be awarded adequate compensation to cover special education and special care required for their maintenance which would not have been necessary had they been born without their disabilities. Other than the above traditional damages, consideration of wrongful birth claims is necessary as more parents are now claiming for costs of raising an unexpected child. Damages have also been awarded for the economic loss in the event that the parents would try for a larger family. This head of damages seem to be stretching the extent of the obstetrician’s liability. Medicolegal issues concerning specific obstetric conditions

Breech delivery

Medicolegal issues are increasingly rare for the singleton breech in the UK, as most that decline or fail external cephalic version choose a lower segment Caesarean section (LSCS). However, if proper delivery techniques are not employed at LSCS or vaginal birth, the resultant trauma could result in litigation.

• It is recommended that where vaginal breech delivery is to occur at any gestation, consultant or specialist input at every point in the decision process is vital. For UK-trained doctors, competence is now an issue and those with little experience or confidence at conducting a vaginal breech birth should ensure the availability of other colleagues if necessary.

• The literature is not supportive of absolute rules on oxytocin, continuous electronic fetal monitoring (EFM), fetal buttock sampling and epidural analgesia and if these are being considered, the decision and discussions should take place at the most senior level.

• Although virtually all literature to date states that breech extraction of the second twin is superior to all other options, with decreasing skills and if there is insufficient time to allow an appropriately trained practitioner to be present, external cephalic version (ECV) or LSCS may be a better risk-management option.

Shoulder dystocia

It is accepted that the majority of cases of shoulder dystocia are unpredictable and allegations that this should have been predicted and prevented by performing an LSCS have not found favour in courts. However, inappropriate manoeuvres such as fundal pressure and the lack of departmental guidelines would not be acceptable and would be difficult to defend in present-day practice. Since it is accepted that Grade A evidence will never be possible in this field, manoeuvres recommended by expert opinion will be the basis of best practice.

Perimortem LSCS

Evidence from literature and review of maternal and fetal physiology suggests that a Caesarean delivery should begin within 4 minutes of cardiac arrest and be accomplished by 5 minutes. The unanimous consensus of the literature is that a civil suit for performing perimortem Caesarean is very unlikely to succeed. The two offences involved could be ‘operating without consent’ and ‘mutilation of corpse’. The former may be argued as ‘battery’ if the mother is successfully resuscitated. However, the doctrine of emergency exception would be applied because a delay in treatment could cause harm. The latter is unlikely to succeed because an operation performed to save the infant would not be wrongful since there would be no criminal intent.

Intimate partner violence

Following the Domestic Violence Crime and Victims Act 2004, a case against a perpetrator can now proceed if there is sufficient evidence even if the victim withdraws their statement. If a victim is pregnant then, healthcare workers including midwives and obstetricians will be approached for a statement if it is known that the victim was pregnant. Medicolegal issues related to termination of pregnancy

UK Abortion Law since 1991

UK abortion legislation (ground E) states that ‘A person shall not be guilty of an offence under the law relating to an abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of an opinion formed in good faith that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped’. This legislation does not apply in Northern Ireland.

Prior to the amendment of the 1967 Abortion Act by the Human Fertilisation and Embryology Act (HFEA) (1990), the law did not permit termination for any reason after viability had been reached. The Infant Life Preservation Act (1929) defined viability as 28 weeks, but a court judgement had effectively reduced that to 24 weeks. Under the HFEA amendment, that gestational limit of 24 weeks for terminations, carried out for non-medical reasons was removed when the reason for the termination was a substantial risk of serious abnormality (and also in cases when the mother’s life was at risk). Thus, third trimester terminations became legally available. The emphasis on maternal welfare is clear even from statutory provisions on abortion in the UK. The UK abortion act makes provision for abortion at any stage where the pregnancy is harmful to the mother.

RCOG Guidance on termination of pregnancy

A number of guidelines have been issued from the RCOG concerning how late terminations should be managed to be within the law.

• The need for guidance arises because the law contains words and phrases that are not absolute, e.g. ‘of an opinion’, ‘formed in good faith’, ‘substantial risk’, ‘seriously handicapped’.

• The guidance is also clear in its direction to ensure that fetuses are not born alive, listing procedures that will ensure fetal death prior to termination if the fetus might be able to breathe if delivered. That time was first defined as gestations over ‘21 weeks’ and modified later to ‘more than 21 weeks and 6 days’. The College also made clear that a procedure that stops the fetal heart before delivery is ‘part of the legal abortion and is not murder’.

• Guidance around whether to perform a termination later in pregnancy is less clear. It has been argued that if an abortion is ethical at 22 weeks, it remains ethical whenever in pregnancy the diagnosis is made. In response, the RCOG has stipulated that ‘As the protection due (to the fetus) increases with embryonic development and fetal growth, reasons for termination, at no stage trivial, must be more pressing the longer the pregnancy has progressed’. The college goes on to state that there must be ‘a presumption in favour of life, not absolute but rebuttable for grave reason and the rebuttal becomes harder to establish as gestation progresses’. Medicolegal issues involving children and young people

The Sexual Offences Act 2003

In England, Wales and Scotland the age of consent to any form of sexual activity is 16 years for males and females. In Northern Ireland it is 17 years. Under the Sexual Offences Act 2003, sexual intercourse and all forms of sexual touching of a minor are illegal in England and Wales, including kissing a minor or kissing between minors. An activity is considered ‘sexual’ if a reasonable person would always consider it to be so, or if it may be deemed to be depending on the circumstances and intention. ‘Touching’ covers a wide range of behaviour: touching any part of the body with anything else, including through clothing.

• Teenagers under 13 years of age are deemed NOT to have the capacity to consent to sexual activity and any agreement to do so is not recognized in law.

• The Sexual Offences Act allows that if both partners are aged between 13 and 15 years, discretion can be exercised by the Crown Prosecution Service, provided there is no evidence of abuse or exploitation. The DH has also assured that mutually agreed sex should not be prosecuted.

• If an individual over 16 years of age has sexual activity with someone under 16, it is the older individual who commits the offence.

Contraception and the Fraser guidelines

Lord Fraser ruled in the High Court that a doctor could give contraceptive treatment or advice provided the following criteria were met:

• the girl was mature enough to understand his advice and the implications of treatment;

• the girl was likely to begin or continue to have sex with or without treatment;

• the doctor had tried to persuade the girl to inform her parents, or to allow him to inform them;

• the girl’s health would suffer without treatment or advice

• the girl’s best interests required him to give treatment or advice.

A young person that meets the above criteria is termed ‘Fraser ruling competent’. Fraser competence can now be assessed by professionals other than a doctor. The principles of this judgement are now central to consenting minors for all health treatments. In Scotland and Northern Ireland different laws apply, although the implications are similar. The Sexual Offences Act specifically allows a professional, including teachers, nurses and youth workers to provide sexual health care to minors provided the intention is to protect the minor from STIs, pregnancy, physical harm or to promote the minor’s wellbeing. Professionals providing treatment to minors must continue to assess competence within the Fraser guidelines.

Gillick competence

The parental right to determine whether or not a child below the age of 16 will or will not have medical treatment terminates if and when the child achieves sufficient understanding and intelligence to enable him to understand fully what is proposed. Note that ‘Gillick competence’ relates to the particular child and the particular treatment, and there have been cases where a 17-year-old has been found insufficiently competent to refuse medical treatment, whereas in other cases much younger children have been deemed sufficiently competent. In addition, where a child is 16 or 17 either parent or child can consent to treatment independently (though neither can override the other or exercise a veto). The court can, however, override the wishes of both where treatment is vital to the child’s welfare. The Access to Health Records Act 1990 further complicates the picture in allowing a child under 16, deemed ‘Gillick competent’ by a doctor, to veto the parent’s access to medical information held by that doctor, even though the parent can consent to treatment that the child cannot veto. It is for the doctor to decide whether or not an individual child is Gillick competent or not. The courts are generally reluctant to do so.

Confidentiality

About 25% of teenagers in the UK have had sexual intercourse by the age of 16 years. There is no legal obligation to report underage sex. In fact, it is enshrined in professional practice that the duty of confidentiality owed to a person under 16 years of age is the same as that owed to any other person, and breaches of it should be treated as seriously as if the person were over 16. Maintaining confidentiality also encourages young people to access the sexual health service, thereby preventing teenage pregnancies and STIs. If a girl is Fraser competent and does not want her parents to be involved, the clinician must respect her wishes. In the case of abortion, where the young woman is competent to consent but cannot be persuaded to involve a parent, every effort should be made to help them find another adult to provide support, for example another family member or specialist youth worker.

However, no one has the right to absolute confidentiality and if a professional believes there is a risk to the health, safety or welfare of a young person (or any other minor) and that the risk is serious enough to override the young person’s right to privacy, then the professional must follow child protection protocols and refer to social services. The latest version of the DH document, ‘Working together to safeguard children’ doesn’t require all partners of minors to be police-checked or all sexually active persons under the age of 13 to be reported to social services. Instead, it states that the child’s best interests must be the overriding consideration in making any decision to share information. In cases where the child is under 13 there should always be discussion with a nominated child protection lead in the organization and there should be a presumption that the case will be reported to children’s social care. In addition, detailed reasons should be documented where a decision is taken not to share information. With regard to teenagers aged 13–15 it states that consideration should be given in every case of sexual activity as to whether there should be a discussion with other agencies and whether a referral should be made to children’s social care.

Coercive relationships

Although most teenage sexual activity is mutually agreed, sexual abuse in childhood is common. One young person in ten is subject to abuse. The DH has issued a checklist of factors to consider in assessing the risk of coercion in relationships, and has suggested that if a request for contraception is made, doctors and health professionals should establish rapport and give a young person support and time to make an informed choice by discussing whether there may be coercion or abuse. This can be challenging, especially with vulnerable young people and it has been suggested that someone else, outside a clinic setting, who knows more about the young person be consulted, if in doubt. If, however, the professional remains concerned that the young person is involved in abusive or seriously harmful sexual activity, they should be protected by sharing relevant information with appropriate people or agencies, such as the police or social services, quickly and professionally. Medicolegal issues and STIs

STIs are complex as they have a tremendous impact on both the physical and emotional wellbeing of the patient and those in contact with them. The healthcare provider has to tread a perilous path when dealing with issues pertaining to disclosure. In cases where disclosure becomes necessary, the healthcare provider may come up against the wishes of the patient and, at best, risk losing their trust or, at worst, end up in a courtroom. The rule of thumb should always be to seek the patient’s consent before disclosing any information to a third party, but, in the event of a patient’s refusal, careful adherence to the GMC guidelines will hopefully prevent any unnecessary litigation. The medical professionals’ legal duty to protect confidentiality is especially relevant with regards to STIs, since personal information concerning STIs is generally regarded as sensitive and private by patients. Although confidentiality should be respected at all times, it is not absolute and paradoxically, genitourinary medicine (GUM) services are probably the main area of medicine where confidentiality may need to be broken.

Disclosure to other medical carers

Merely confirming that a patient has attended a GUM clinic amounts to a breach of confidentiality. However, it may sometimes be necessary for the treating clinician to disclose the details of a patient’s sexual health to other doctors or health authorities involved in their management. The GMC’s guidelines have set a code of practice for UK doctors and are invaluable in guiding any healthcare provider in these, often tricky, situations. The issue of disclosure to other medical professionals has been discussed in the previous chapter. It should be borne in mind that any information that has to be shared with other healthcare providers must be compliant with the Data Protection Act 1998 and the Caldicott Principles. These specify that the information can only be shared for a justifiable purpose, with the minimum necessary patient-identifiable information used and revealed, on a strict need-to-know basis, to a responsible individual who understands and complies with the law. GUM clinics are able to share information about their patients through the network of health advisers but it is accepted practice that a patient’s GP may not be routinely informed when they attend a clinic.

GMC guidance explicitly states that, if a patient is diagnosed with a serious communicable disease, in addition to explaining the ways of protecting others from infection, the medical, social and occupational implications have to be explained to the patient. Moreover, it has to be made clear to the patient that other healthcare providers involved in their care might have to be informed of their condition, in order for them to provide adequate clinical management. If patients still refuse to allow other healthcare workers to be informed, the patients’ wishes must be respected, except where that failure to disclose the information would put a healthcare worker or other patient at serious risk of death or serious harm. If in doubt about whether disclosure is appropriate, advice should be sought from an experienced colleague and one must be prepared to justify one’s decision to disclose information against a patient’s wishes.

The work of GUM clinics in the UK is regulated by the National Health Service (NHS) Venereal Diseases Regulation (1974), the NHS Trust and the Venereal Diseases Directive (1991), the NHS Trusts and Primary Care Trusts (Sexually Transmitted Diseases) Directions (2000) and the Venereal Diseases Act (1974) (in Scotland).

Disclosure to a partner

The English and Scottish courts have recently confirmed that the reckless transmission of human immunodeficiency virus (HIV) can amount to a criminal offence. The offence is not confined to HIV. With regards to civil liability, there is, at present, no reported decision by the UK courts to hold a doctor liable in damages for the onward transmission of HIV by one of his or her patients. Providing proper advice to the HIV-positive patient will discharge the doctor’s legal duty unless the doctor has reason to believe that the patient will not follow the advice, or if the third party is also a patient of the doctor. Where there is an identifiable third party (who is not a patient of the doctor) there is a possibility that the UK courts might hold that simply giving proper advice to the patient is insufficient. The third party or the appropriate authority might need to be informed of the risk, despite the patient’s wishes. Disclosure without consent must always follow prior consultation with senior colleagues and/or advice should be sought from the GMC or defence societies, as appropriate. With regards to criminal liability, both English and Scottish law establish that criminal liability will not normally be imposed for an omission to act, unless a legal duty to act is specifically recognized.

The GMC guidance on serious communicable diseases allows the disclosure of information about a patient, whether living or dead, in order to protect a person from risk of death or serious harm. This could allow the disclosure of information to a known sexual contact of a patient with HIV where there is reason to think that the patient has not informed that person, and cannot be persuaded to do so. In such circumstances, the patient should be informed before the disclosure is made, and one must be prepared to justify a decision to disclose information. It is noteworthy here that this guideline does not specify that the partner of the infected patient has to be a patient of the clinician.

Colleagues in the medical profession with serious communicable diseases

The GMC’s guidance states that a doctor or other healthcare worker with a serious communicable disease is entitled to the provision of confidentiality and support like any other patient. However, if there is reason to believe that a medical colleague or healthcare worker with a serious communicable disease, is practising, or has practised, in a way which places patients at risk, an appropriate person in the healthcare worker’s employing authority or the relevant regulatory body should be informed. Wherever possible, the healthcare worker should be informed of this disclosure. Similarly, the advice given by the DH for the management of HIV-infected healthcare workers has three main principles: there is a duty to protect patients; there is a duty of confidentiality towards infected healthcare workers; infected healthcare staff should avoid carrying out certain procedures where exposure of patients to HIV is possible.

Pregnant women with HIV

The issues relating to HIV in pregnant women are detailed in the British HIV Association’s guidelines. Although, antenatal HIV testing of all pregnant women is recognized as an effective way of preventing mother–child transmission, the psychosocial, emotional and economic impact of routine testing is significant, especially if there is discordance between the couple. About 20–80% of couples are discordant and there are situations where a newly diagnosed HIV-positive woman refuses to disclose to a current sexual partner, or appears to want to delay disclosure indefinitely. These cases should be dealt with on an individual basis and priority should be given to finding the causes of non-disclosure. The importance of disclosure to appropriate health workers should be emphasized.

In cases of reverse discordance (where the male partner is HIV positive and the female partner HIV negative) there is an increased risk of vertical transmission associated with seroconversion in pregnancy and breastfeeding. If the male partner is reluctant to inform his partner, the issue of disclosure without consent should be based on weighing the potential harms and benefits of non-disclosure. It is of the utmost importance to consider the risk of HIV to the baby in order to determine whether breach of confidentiality is justified. There has been concern that forced disclosure can have a negative impact on HIV testing uptake. It could also mean that, by compelling doctors to disclose HIV infection to sexual contacts, they would lose the trust of their patients.

Disclosure after a patient’s death

A doctor is still obliged to keep personal information confidential after a patient’s death. However, GMC’s guidance on serious communicable diseases, states that where a communicable disease contributed to the cause of death, this must be recorded on the death certificate and that this information should be passed to relevant for the purpose of communicable disease control and surveillance. Disclosure after a patient’s death is permissible if it is done to protect other people from serious harm, or it is required by the law. Miscellaneous legislation related to Obstetrics and Gynaecology

Making decisions when patients lack capacity

• Mental Capacity Act 2005 (England and Wales): This act provides the legal framework for making decisions in relation to people who lack capacity, and clarifies who can make decisions and how those decisions should be made. In this Act, people lack capacity in relation to a particular matter if, at the material time, they are unable to make a decision for themselves in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain. Section 1 of the Act sets out five statutory principles that apply to any action taken and decisions made under the Act. The issue of ‘capacity’ has been discussed in the previous chapter.

• Adults with Incapacity (Scotland) Act 2000: This Act provides ways to help safeguard the welfare of people aged 16 and over who lack the capacity to take some or all decisions for themselves because of a mental disorder or inability to communicate. It also allows other people to make decisions on their behalf. The Act provides various methods of intervening on behalf of an adult who lacks capacity, and sets out the principles that must be followed when deciding whether to intervene. In this Act, incapacity means being incapable of acting on, making, communicating, understanding, or remembering decisions by reason of mental disorder or inability to communicate due to physical disorder.

• Northern Ireland: There is currently no primary legislation on capacity covering Northern Ireland and decisions about medical treatment and care when people lack capacity must be made in accordance with the common law, which requires decisions to be made in a person’s best interests.

The use of human tissue

• Human Tissue Act 2005 (England, Wales and Northern Ireland): The Act requires that consent is obtained before a living person’s organs and tissue can be stored or used for purposes such as research, post-mortem examination, and transplantation or a deceased person’s organs and tissue can be removed for these purposes. The Act specifies whose consent is needed and in what circumstances. The Human Tissue Authority (HTA) publishes a Code of Practice, which gives detailed advice on how consent should be obtained and recorded.

• Human Tissue (Scotland) Act 2006: The Act requires that authorization is obtained before a deceased person’s organs and tissue can be stored or used for purposes such as research, post-mortem examination and transplantation. It does not cover the use and storage of tissue from living people, other than organ donation for transplantation.

Fertility treatments

• Human Fertilisation and Embryology Act 1990 as amended by the Human Fertilisation (Disclosure of information) Act (1992): This Act provides a legal framework across the UK for all those involved in fertility treatments. It defines the rights of donors, patients and the children who may result from the treatment, restricts research on human embryos to specified purposes and places time limits on the storage of embryos, eggs, and sperm. HFEA was created under the Act to oversee the licensing and compliance of treatment clinics and research centres and to keep new developments under review. A number of contentious issues are constantly being debated and the even now the Parliament is considering a number of amendments to the Act. A few of these have been highlighted below

• Children conceived with donated gametes: From April 2005, children conceived with donated gametes have the right to seek identifying information about the gamete provider when they reach the age of 18 years.

• Egg sharing: Although it is illegal within the UK, to sell or purchase eggs, egg donation is permissible and donors may receive a nominal sum, as defined by HFEA. The authority allows egg sharing, which has undoubtedly brought happiness to a select group of young infertile women able to trade their eggs for IVF treatment and to the privileged couples able to meet their costs. The concept and practice of egg trading offends the principle with respect to the trade in human cells, organs and tissues. However, it has been founded on the needs of a desperate group of vulnerable infertile women who see no other way to obtain IVF treatment, hitherto denied to them on the NHS because of inadequate funding.

• Consent in Assisted reproduction: A summary related to Consent in Assisted Conception is given in an article by Sawers and Avery (2006)

Other relevant legislation

• Data Protection Act 1998

• The Human Rights Act 1998

• Access to Health Records Act 1990

• Access to Medical Reports Act 1988

• Age of Legal Capacity (Scotland) 1991

• Age of Majority Act (Northern Ireland) 1969

• Children Acts 1989 and 2004

• NHS Regulations 1974 Further reading

B-Lynch C, Coker A, Dua KA. Clinical analysis of 500 medico-legal claims evaluating the causes and assessing the potential benefit of alternative dispute resolution. Brit J Obstet Gynaecol 1996;103: 1236–42.

General Medical Council (GMC) Consent: patients and doctors making decisions together. London: General Medical Council 2008.

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