To not understand the assault/internals threads?

[GingerJulep]

I've never had one so am really struggling to understand how so many women on here (NOT aimed specifically at the other poster on this page, there are lots in different sections!) manage to have internal examinations before/during/after birth that they say they didn't consent to/asked to be stopped?

I mean that physically, don't they have the option to just shut legs/take feet out of stirrups/kick HCP in face?

Nearest I've ever come (so far, lucky me!) was someone trying to take blood suddenly... I made an automatic physical reaction (big flinch/jump) and they simply couldn't do it until we'd had a quick cat.

So, how much more difficult is it to avoid/stop internal exams if you really want to IYSWIM?

I had a midwife when I was induced with one child who made it a condition of me phoning my husband to come in during the night that I sat with my feet up being monitored and then had an internal. I was not 'allowed' to have him come in until I proved I was in established labour, because I was on an antenatal ward (men weren't allowed overnight and she was literally the gatekeeper to my emotional support, as he would have had to get through a locked door with a buzzer!). The rules said mobile phones weren't allowed, so mine was turned off. I felt captive, and like I had to behave and follow her rules.

Once I acquiesed I passed the tests and was allowed to call him. Sadly by then I was completely out of control with panic, and didn't manage to pull it back together again, leading to horrid interventionist labour.

Normally I am assertive, but when put in those circumstances, I behaved like a vulnerable patient. For years I wondered why I didn't stand up to her or insist or just turn my bloody phone on and ring home, and then I realised that we behave in certain ways in specific circumstances because of the position we are in. I was in pain, scared and panicking. She was the authority figure, in charge, expert responsible for 'caring' for me.

I will never forgive her patronisingly saying "your mother did it for you, and hers for her" as I writhed in pain being monitored, just wanting my husband's arms.

I know I am not talking about assault, and I am sorry for all the dreadful experiences here that are far worse.

I never complained, and it is too long ago now to bother (8 years) I didn't feel emotionally strong enough to rake over the awful labour, especially not when I felt what I would likely get back would be a defence and justification of their actions (there was more than I've put here that I was unhappy about). I also got my notes, and there were things written down that were factually incorrect that I felt no-one would believe me about.

I don't think the NHS has any idea how many women feel badly treated. For everyone who's able to complain there will be multiples more who don't or can't.

For me, it led to a mistrust of the midwifery profession and obstetricians. The only time I had to revisit the antenatal clinic at that hospital I ended up in floods of tears. I once went to visit someone on the ward and just walking in was very hard, as I felt a real physical reaction to run away, including nausea. I have had 3 babies since, all born at home with nhs 'care'. In only one case was the midwifery care during labour genuinely good from my perspective, although I had an excellent midwife in a different child's pregnancy.

Listening to women's views and wishes, genuinely respecting them, and following their own professional guidelines to properly seek informed consent. Why is it so hard??

Shit, now I am crying. Though I was over this .

IfIonlyhadsomesleep, is it trivial that you felt under that level of pressure to 'consent' to a internal?

If you are put under pressure to consent in order to receive treatment then that my not be consent. HCP essentially are therefore not allowed legally to withhold treatment or admit you to hospital until you comply with what they say; eg "we can not admit you if you do not have an internal to establish whether you are in labour or not" is technically illegal.

The fact that you regard this as trivial, even in the context of this thread, shows the extent of the problem in my mind.

It.Should.Not.Be.Happening.

I'll do some hunting down of laws on consent and post up the most relevant points here.

I'm actually thinking that perhaps if MN can't do a campaign atm, maybe they would be willing to show some support to the BTA, or maybe get a representative from the BTA to do a Q&A for MN to do some awareness or publicity.

I will never forgive her patronisingly saying "your mother did it for you, and hers for her" as I writhed in pain being monitored, just wanting my husband's arms.

Shiraz, I was shaken up just reading this! I'm so sorry it still hurts you that much, though not surprised :(

It's a total confirmation of what few have even dared to think - women are being deliberately subjected to pain, humiliation and despair, as some sort of rite, by those we have appointed to take care of us.

It's outrageous.

I hope you're feeling very safe just now, so the tears can come out and help you heal.

Shiraz

When i was induced and the pains really started to come hard and fast, i asked them to call my DH and the midwife said to let him sleep a bit longer (it was 7 am). I am an intelligent, normally reasonably assertive person, who had worked in hospitals, interracted professionally with nurses, but becasme a scared, aquiescent person at that point.
I so regretted letting them persuade me, that I didn't let DH leave my side for the whole of my second labour. And it helped.

Ok, stuff on consent and what is/what isn't consent. These posts are going to be lengthy so I apologise in advance, but I'll try and stick to the most relevant and important bits here.

Source: DoH document dated 2009 entitled Reference Guide to Consent for Examination or Treatment

I'll start with the Introduction as it gives the best context for what we are talking about and then go into a bit more detail.

First two paragraphs from the Introduction:
1. It is a general legal and ethical principle that valid consent must be obtained before starting treatment or physical investigation, or providing personal care, for a person. This principle reflects the right of patients to determine what happens to their own bodies, and is a fundamental part of good practice. A healthcare professional (or other healthcare staff) who does not respect this principle may be liable both to legal action by the patient and to action by their professional body. Employing bodies may also be liable for the actions of their staff.

2. While there is no English statute setting out the general principles of consent, case law (?common law?) has established that touching a patient without valid consent may constitute the civil or criminal offence of battery. Further, if healthcare professionals (or other healthcare staff) fail to obtain proper consent and the patient subsequently suffers harm as a result of treatment, this may be a factor in a claim of negligence against the healthcare professional involved. Poor handling of the consent process may also result in complaints from patients through the NHS complaints procedure or to professional bodies.

Reference to the Human Rights Act 1998 in the Introduction
5. The Human Rights Act 1998 came into force in October 2000, giving further effect in the UK to the rights enshrined in the European Convention on Human Rights. All public authorities are required to act in accordance with the rights set out in the Human Rights Act, and all other statutes have to be interpreted by the courts so far as possible in accordance with those rights. The main articles that are likely to be relevant in medical case law are Article 2 (protection of the right to life), Article 3 (prohibition of torture and inhuman or degrading treatment or punishment), Article 5 (the right to liberty and security), Article 8 (the right to respect for private and family life), Article 9 (freedom of thought, conscience and religion), Article 12 (the right to marry and found a family) and Article 14 (prohibition of discrimination in the enjoyment of Convention rights).

Reference to the capacity to consent in the Introduction
8. The Mental Capacity Act 2005,5 which came fully into force on 1 October 2007, sets out a statutory framework for making treatment decisions for people who lack the capacity to make such decisions themselves (see chapter 2). The Act establishes overarching statutory principles governing these decisions, setting out who can make them and when. It sets out the legal requirements for assessing whether or not a person lacks the capacity to make a decision.

9. Where a person lacks the capacity to make a decision for themselves, any decision must be made in that person?s best interests. The Mental Capacity Act introduced a duty on NHS bodies to instruct an independent mental capacity advocate (IMCA) in serious medical treatment decisions when a person who lacks the capacity to make a decision has no one who can speak for them, other than paid staff. The Act allows people to plan ahead for a time when they may not have the capacity to make their own decisions: it allows them to appoint a personal welfare attorney to make health and social care decisions, including medical treatment, on their behalf or to make an advance decision to refuse medical treatment.

Thank you for your kind words. That midwife also (helpfully) indicated that this was only the start, it was only early labour and things were going to get FAR worse. So that did a great job of helping me calm down!

You see it in nurses on tv shows sometimes. I was watching 24hrs in A&E and one of the talking head nurses to camera made some comment about the patient's experience of pain always being right, but it was said in a sort of eye-rolling, jokey, winkey way. The whole theme of the show was about pain, and there were lots of 'comic' moments, like the wife being dismissive of her husband's broken wrist pain, when it turned out he had nerve damage. I think you see the same sorts of attitudes on programmes about birth too. Midwives at the station discussing ladies who are in what they consider too much pain for their stage of labour, or making too much fuss. There was one shocking episode of OBEM where an older Bolshevik midwife was refusing to admit a woman and she stood contracting by the reception desk for ages and walking up and down. The impression given of the midwife was slight exasperation that she and her partner wouldn't go away. Eventually they admitted her (it was a subsequent baby), and the baby was born v rapidly after that. I guess some nurses and midwives become institutionalised , and also if they are being asked to be the gatekeepers to delivery unit because of bed pressures then the incentives on their behaviour will not be totally about the patient.

You are right about institutionalisation.

I have seen it in Care of the Elderly.

Looking through the intro as a starting for ten.

First point: Consent is a legal matter. End of debate. Not only can staff be prosecuted, but so can hospitals if this is institutionalised and they are not doing enough to prevent it (that theorectically could be knowing that certain practices were going on or providing inadequate training).

Second point: Human Rights Act 1998 Article 3 (prohibition of torture and inhuman or degrading treatment or punishment), looks highly relevant here. Even phrases like "Leave your dignity at the door" could be in direct conflict with this as its suggests that dignity or degrading treatment is acceptable. It is not.

Third point: Mental capacity. There are strict rules about this, which need to be looked into in depth in this context tbh. I think looking at this the key point in those two paragraphs is "The Act allows people to plan ahead for a time when they may not have the capacity to make their own decisions: it allows them to appoint a personal welfare attorney to make health and social care decisions, including medical treatment, on their behalf or to make an advance decision to refuse medical treatment."

In short birth plans should definitely be respected and not ignored. The way I'm reading this is, that if you think there is a danger that you may not be able to give consent for whatever reason, you can select someone to do this for you. Given the nature of childbirth you certainly can plan for this possibility. So if HCP sdeem that for whatever reason during the course of your labour, you become no longer able to consent yourself, then they should then immediately refer to your support rather than just doing something; particularly if its in your birth plan not to.

Also from how I'm reading it, I have to say I think its a very, very short leap to say they should not be be being banning birth partners from labour wards under any circumstances because this would technically mean they were forcibly removing someone's advocate. I could be wrong on this though. It is something I need to look more into though to properly understand what the legalities really are and how they could be applied to this situation.

Unless someone here can enlightened me in the meantime...

I'm not suggesting doing what BTA do, MNHQ are saying they can't take it on at the moment so why don't we?

Sorry I can't remember who posted being on my pad, but I just wanted to say a. responding to emotional blackmail isn't consent, as I've said a lot in this thread, put it into a sexual context and would it be consent? b. no one has to apologise or justify BT, it doesn't matter how "bad" it was, it happened, which it shouldn't have, and made you feel your feelings.

Very enlightening, RedToothbrush, thank you!

Yes, I read the Mental Capacity part to include birth plans - particularly regarding prohibited treatment. The plan would have to be co-signed by your HCP, I think (am not a lawyer.) Also there must be issues with first-timers, in particular, prohibiting things like pain relief before knowing how much they might hurt. I get the impression birth plans are not formally & professionally set out? They probably should be.

I really don't know whether a formal appointment is needed for someone to become your Personal Welfare Attorney for just a short time. No such legal position exists in England; I suspect it's enough to make clear that your partner/mother/doula is empowered to make decisions on your behalf during the labour - maybe written in the birth plan.

rtb, that could make an interesting point for birth plans, them them into a legal document and appointing someone as your advocate in it.

Shiraz, that incident on OBEM is the reason I've never watched it! First episode I saw, the woman was practically giving birth in reception and they wouldn't let her through. Didn't want to see any more institutional obstructiveness causing distress.

Oh, this is interesting - particularly the part about coercion.
www.birthrights.org.uk/library/factsheets/ -> Consenting To Treatment (pdf)

OK, another really long post but I hope that some of you will read, even if you consider what happened to you trivial. Some of the stuff you have posted that is 'trivial' is very clearly covered below. I've only pulled out the paragraphs in chapter 1 that most relevant. I'll put up stuff about mental capacity in a bit.

Like I say, I really hope people spend the time to read this properly, because these are your rights and what you should expect as a BASIC level of care.

Valid consent
1. For consent to be valid, it must be given voluntarily by an appropriately informed person who has the capacity to consent to the intervention in question (this will be the patient or someone with parental responsibility for a patient under the age of 18, someone authorised to do so under a Lasting Power of Attorney (LPA) or someone who has the authority to make treatment decisions as a court appointed deputy). Acquiescence where the person does not know what the intervention entails is not ?consent?.

Does the person have capacity?
2. The Mental Capacity Act 2005 defines a person who lacks capacity as a person who is unable to make a decision for themselves because of an impairment or disturbance in the functioning of their mind or brain. It does not matter if the impairment or disturbance is permanent or temporary. A person lacks capacity if:
? they have an impairment or disturbance (for example a disability, condition or trauma or the effect of drugs or alcohol) that affects the way their mind or brain works, and
? that impairment or disturbance means that they are unable to make a specific decision at the time it needs to be made.

3. An assessment of a person?s capacity must be based on their ability to make a specific decision at the time it needs to be made, and not their ability to make decisions in general. A person is unable to make a decision if they cannot do one or more of the following things:
? understand the information given to them that is relevant to the decision
? retain that information long enough to be able to make the decision
? use or weigh up the information as part of the decision-making process
? communicate their decision ? this could be by talking or using sign language and includes simple muscle movements such as blinking an eye or squeezing a hand.

5. A person?s capacity to consent may be temporarily affected by factors such as confusion, panic, shock, fatigue, pain or medication. However, the existence of such factors should not lead to an automatic assumption that the person does not have the capacity to consent.

6. Capacity should not be confused with a healthcare professional?s assessment of the reasonableness of the person?s decision. Under the Mental Capacity Act and the common law, a person is not to be treated as unable to make a decision merely because they make an unwise decision. A person is entitled to make a decision which may be perceived by others to be unwise or irrational, as long as they have the capacity to do so.

7. However, if the decision that appears irrational is based on a misperception of reality, as opposed to a different value system to that of the health practitioner ? for example a patient who, despite the obvious evidence, denies that his foot is gangrenous, or a patient with anorexia nervosa who is unable to comprehend their failing physical condition ? then the patient may not be able to comprehend, weigh or make use of the relevant information and hence may lack the capacity to make the decision in question.

8. The Mental Capacity Act also requires that all practical and appropriate steps are taken to enable a person to make the decision themselves. These steps include the following:
? Providing relevant information. For example, if there is a choice, has information been given on the alternatives?
? Communicating in an appropriate way. For example, could the information be explained or presented in a way that is easier for the person to understand?
? Making the person feel at ease. For example, are there particular times of the day when a person?s understanding is better?
? Supporting the person. For example, can anyone else help or support the person to understand information and to make a choice?

Is the consent given voluntarily?
10. To be valid, consent must be given voluntarily and freely, without pressure or undue influence being exerted on the person either to accept or refuse treatment. Such pressure can come from partners or family members, as well as health or care practitioners. Practitioners should be alert to this possibility and where appropriate should arrange to see the person on their own in order to establish that the decision is truly their own.

Has the person received sufficient information?
13. To give valid consent, the person needs to understand the nature and purpose of the procedure. Any misrepresentation of these elements will invalidate consent. Where relevant, information about anaesthesia should be given alongside information about the procedure itself.

15. Although informing people of the nature and purpose of procedures enables valid consent to be given as far as any claim of battery is concerned, this is not sufficient to fulfil the legal duty of care to the person. Failure to provide other relevant information may render the practitioner liable to an action for negligence if a person subsequently suffers harm as a result of the treatment received.

18. In considering what information to provide, the health practitioner should try to ensure that the person is able to make an informed judgement on whether to give or withhold consent. Case law on this issue is evolving. It is therefore advisable to inform the person of any ?material? or ?significant? risks or unavoidable risks, even if small, in the proposed treatment; any alternatives to it; and the risks incurred by doing nothing. A Court of Appeal judgment stated that it will normally be the responsibility of the doctor to inform a patient of ?a significant risk which would affect the judgment of a reasonable patient?. Following Chester v Afshar, it is advisable that healthcare professionals give information about all significant possible adverse outcomes and make a record of the information given.

19. The GMC provides guidance on the type of information that patients may need to know before making a decision, and recommends that doctors should do their best to find out about patients? individual needs and priorities when providing information about treatment options. It advises that discussions should focus on the patient?s ?individual situation and risk to them? and sets out the importance of providing the information about the procedure and associated risks in a balanced way and checking that patients have understood the information given.

Additional Procedures
22. During an operation it may become evident that the person could benefit from an additional procedure that was not within the scope of the original consent. If it would be unreasonable to delay the procedure until the person regains consciousness (for example because there is a threat to the person?s life) it may be justified to perform the procedure on the grounds that it is in the person?s best interests. However, the procedure should not be performed merely because it is convenient. For example, a hysterectomy should never be performed during an operation without explicit consent, unless it is necessary to do so to save life.

When should consent be sought?
31. The seeking and giving of consent is usually a process, rather than a one-off event. For major interventions, it is good practice where possible to seek the person?s consent to the proposed procedure well in advance, when there is time to respond to the person?s questions and provide adequate information. Clinicians should then check, before the procedure starts, that the person still consents. If a person is not asked to signify their consent until just before the procedure is due to start, at a time when they may be feeling particularly vulnerable, there may be real doubt as to its validity. In no circumstances should a person be given routine pre-operative medication before being asked for their consent to proceed with the treatment.

Form of consent
32. The validity of consent does not depend on the form in which it is given. Written consent merely serves as evidence of consent: if the elements of voluntariness, appropriate information and capacity have not been satisfied, a signature on a form will not make the consent valid.

34. If the person has capacity, but is unable to read or write, they may be able to make their mark on the form to indicate consent. It would be good practice for the mark to be witnessed by a person other than the clinician seeking consent, and for the fact that the person has chosen to make their mark in this way to be recorded in the case notes. Similarly, if the person has capacity, and wishes to give consent, but is physically unable to mark the form, this fact should be recorded in the notes. Or, the person can direct someone to sign the form on their behalf, but there is no legal requirement for them to do so. If consent has been given validly, the lack of a completed form is no bar to treatment, but a form can be important evidence of such consent.

35. Consent may be expressed verbally or non-verbally: an example of non-verbal consent would be where a person, after receiving appropriate information, holds out an arm for their blood pressure to be taken. However, the person must have understood what examination or treatment is intended, and why, for such consent to be valid. It is good practice to obtain written consent for any significant procedure, such as a surgical operation or when the person participates in a research project or a video recording (even if only minor procedures are involved).

Duration of consent
42. When a person gives valid consent to an intervention, in general that consent remains valid for an indefinite duration, unless it is withdrawn by the person. However, if new information becomes available regarding the proposed intervention (for example new evidence of risks or new treatment options) between the time when consent was sought and when the intervention is undertaken, the GMC guidance states that a doctor or member of the healthcare team should inform the patient and reconfirm their consent. In the light of paragraph 19 above, the clinician should consider whether the new information should be drawn to the attention of the patient and the process of seeking consent repeated on the basis of this information. Similarly, if the patient?s condition has changed significantly in the intervening time it may be necessary to seek consent again, on the basis that the likely benefits and/or risks of the intervention may also have changed.

43. If consent has been obtained a significant time before undertaking the intervention, it is good practice to confirm that the person who has given consent (assuming that they retain capacity) still wishes the intervention to proceed, even if no new information needs to be provided or further questions answered.

When consent is refused
44. If an adult with capacity makes a voluntary and appropriately informed decision to refuse treatment (whether contemporaneously or in advance), this decision must be respected, except in certain circumstances as defined by the Mental Health Act 1983. This is the case even where this may result in the death of the person (and/or the death of an unborn child, whatever the stage of the pregnancy).

Withdrawal of consent
45. A person with capacity is entitled to withdraw consent at any time, including during the performance of a procedure. Where a person does object during treatment, it is good practice for the practitioner, if at all possible, to stop the procedure, establish the person?s concerns and explain the consequences of not completing the procedure. At times, an apparent objection may in fact be a cry of pain rather than withdrawal of consent, and appropriate reassurance may enable the practitioner to continue with the person?s consent. If stopping the procedure at that point would genuinely put the life of the person at risk, the practitioner may be entitled to continue until that risk no longer applies.

46. Assessing capacity during a procedure may be difficult and, as noted above, factors such as pain, panic and shock may diminish capacity to consent. The practitioner should try to establish whether at that time the person has capacity to withdraw a previously given consent. If capacity is lacking, it may sometimes be justified to continue in the person?s best interests, but this should not be used as an excuse to ignore distress.

Advance decisions to refuse treatment
47. A person may have made an advance decision to refuse particular treatment in anticipation of future incapacity (sometimes previously referred to as a ?living will? or ?advance directive?). A valid and applicable advance decision to refuse treatment has the same force as a contemporaneous decision to refuse treatment. This is a well-established rule of common law, and the Mental Capacity Act 2005 now puts advance decisions on a statutory basis. The Act sets out the requirements that such a decision must meet to be valid and applicable. Further details are available in chapter 9 of the Mental Capacity Act (2005) Code of Practice, but in summary these are:
^? the person must be 18 or over
^? the person must have the capacity to make such a decision ? the person must make clear which treatments they are refusing
? if the advance decision refuses life-sustaining treatment, it must be in writing (it can be written by someone else or recorded in healthcare notes), it must be signed and witnessed and it must state clearly that the decision applies even if life is at risk
? a person with capacity can withdraw their advance decision at any time.

48. Healthcare professionals must follow an advance decision if it is valid and applicable, even if it may result in the person?s death. If they do not, they could face criminal prosecution or civil liability. The Mental Capacity Act 2005 protects a health professional from liability for treating or continuing to treat a person in the person?s best interests if they are not satisfied that an advance decision exists which is valid and applicable. The Act also protects healthcare professionals from liability for the consequences of withholding or withdrawing a treatment if at the time they reasonably believe that there is a valid and applicable advance decision. If there is genuine doubt or disagreement about an advance decision?s existence, validity or applicability, the case should be referred to the Court of Protection. The court does not have the power to overturn a valid and applicable advance decision. While a decision is awaited from the courts, healthcare professionals can provide life-sustaining treatment or treatment to stop a serious deterioration in the patient?s condition.

49. If an advance decision is not valid or applicable to current circumstances, healthcare professionals must consider the advance decision as part of their assessment of the person?s best interests. Advance decisions made before the Mental Capacity Act came into force may still be valid if they meet the provisions of the Act.

Haven't read all of your post yet, RTB. Amazing work :)
Now I've discovered Birth Rights, I've made a donation.

Maybe if birth plans are made into a more formal and legally recognisable document, they would have more clout. Maybe there should be a facility either within the nhs or by a separate charity, where you can meet with a hcp and draw one up with someone who can walk you through possibilities. The pros and cons etc. It would be in a uniform format that all other hcp would be familiar with. They could advise your birth partner of what are acceptable practises and rights, like when to say; no hands off. I think even with a birth plan, many partners would still be in awe of the medical professionals and would just go with it.

After they could run a reflections service to review what happened. Then if a woman needs support to make a complaint or make a criminal complaint, they will have the facilities to support this. Even if they choose not to make a complaint, the information is recorded, hospitals could be warned of unacceptable practises by the charity in an anonymous way.

That being said, a birth plan isn't going to stop the God awful people who have seriously assaulted and violated people. I really just can't fathom why anyone would think it was acceptable to treat anyone in this way.

Chapter 2 adults without capacity

General principles
1. The Mental Capacity Act 2005 came fully into force in October 2007 and applies in England and Wales to everyone who works in health and social care and is involved in the care, treatment or support of people over 16 years of age who may lack capacity to make decisions for themselves. It is largely based on previous common law and creates a single, coherent framework for decision-making, including decisions about treatment. This chapter summarises the main provisions of the Mental Capacity Act. Detailed guidance is provided in the Code of Practice, which has statutory force. The Act imposes a duty on health professionals (and other healthcare staff) to have regard to the Code of Practice.

2. Under English law, no one is able to give consent to the examination or treatment of an adult who lacks the capacity to give consent for themself, unless they have been authorised to do so under a Lasting Power of Attorney or they have the authority to make treatment decisions as a court appointed deputy. Therefore, in most cases, parents, relatives or members of the healthcare team cannot consent on behalf of such an adult. However, the Mental Capacity Act sets out the circumstances in which it will be lawful to carry out such examinations or treatment.

3. In general, the refusal to an intervention made by a person when they had capacity cannot be overridden if the advance decision is valid and applicable to the situation. There are certain statutory exceptions to this principle, including treatment for mental disorder under the Mental Health Act 1983, which are set out briefly in chapter 5.

4. The legal requirements in the Mental Capacity Act are underpinned by five statutory principles. One of these key principles is that any act done for, or any decision made on behalf of, a person who lacks capacity must be done, or made, in that person?s best interests. This principle applies to health professionals as it does to anyone working with and caring for a person who lacks capacity. The Act also creates a new offence of ill treatment or wilful neglect of someone who lacks capacity by someone with responsibility for their care or with decision-making powers.

6. The Mental Capacity Act provides healthcare professionals with protection from civil and criminal legal liability for acts or decisions made in the best interests of the person who lacks capacity. The Act makes it clear that when determining what is in a person?s best interests a healthcare professional must not make assumptions about someone?s best interests merely on the basis of the person?s age or appearance, condition or any aspect of their behaviour.

7. The Act requires that a healthcare professional must consider all the relevant circumstances relating to the decision in question. These are described as factors that the healthcare professional is aware of and which are reasonable to take into account.

8. In considering the relevant circumstances, the Act rules that the healthcare professionals must take the following steps:
? Consider whether the person is likely to regain capacity and if so whether the decision can wait.
? Involve the person as fully as possible in the decision that is being made on their behalf.
? As far as possible, consider:
? the person?s past and present wishes and feelings (in particular if they have been written down)
? any beliefs and values (eg religious, cultural or moral) that would be likely to influence the decision in question, and any other relevant factors, and
? the other factors that the person would be likely to consider if they were able to do so.
? As far as possible, consult other people if it is appropriate to do so and take into account their views as to what would be in the best interests of the person lacking capacity, especially:
? anyone previously named by the person lacking capacity as someone to be consulted
? anyone engaging in caring for or interested in the person?s welfare
? any attorney appointed under a Lasting Power of Attorney
? any deputy appointed by the Court of Protection to make decisions for the person

Duration of lack of capacity
12. The provisions of the Mental Capacity Act apply to acts or decisions made on behalf of an adult who lacks capacity ? whether the lack of capacity is likely to be temporary or permanent. It is possible for capacity to fluctuate. In such cases, it is good practice to establish, while the person has capacity, their views about any clinical intervention that may be necessary during a period of anticipated incapacity, and to record these views. The person may wish to make an advance decision to refuse treatment or a statement of their preferences and wishes. If the person does not make a relevant advance decision, decisions about that person?s treatment if they lack capacity must be made in accordance with the Mental Capacity Act. This would include considering whether the person is likely to regain capacity and, if so, whether the decision can wait, as well as the statutory principle that all practical steps must be taken to enable the person to make their own decision.

Statements of preferences and wishes
13. A healthcare professional must take all statements of a person?s preferences and wishes into consideration as part of a best interests assessment. Written statements which request specific treatments made by a person before losing capacity should be given the same consideration as those made by people who currently have capacity to make treatment decisions. However, a healthcare professional would not have to follow a written request if they thought that the specific treatment would be clinically unnecessary or not appropriate for the person?s condition, and therefore not in the person?s best interests. If the decision is different to a written statement, a healthcare professional should keep a record of this and be prepared to justify the decision if challenged. There is an important legal distinction between a written statement expressing treatment preferences, which a healthcare professional must take into account when making a best interests decision, and a valid and applicable advance decision to refuse treatment, which healthcare professionals must follow. Healthcare professionals cannot ignore a written statement that is a valid and applicable advance decision to refuse treatment.

Lasting Power of attorney
14. The Mental Capacity Act enables a person aged 18 or over to appoint an attorney to look after their health and welfare decisions if they should lack the capacity to make such decisions in the future. Under a personal welfare LPA, the attorney ? if they have the authority to do so ? can make decisions that are as valid as those made by the person themselves. The LPA must be made in the form, and meet the criteria, set out in the regulations, and it must be registered with the Office of the Public Guardian before it can be used.

15. The LPA may specify limits to the attorney?s authority, and the LPA must specify whether or not the attorney has the authority to make decisions about life-sustaining treatment. Healthcare practitioners directly involved in the care or treatment of a person who lacks capacity should not agree to act as that person?s attorney other than in exceptional circumstances (for example if they are the only close relative of the person). If the person lacks capacity and has created a personal welfare LPA, the attorney will have the authority to make decisions and consent to or refuse treatment as set out in the LPA. Healthcare practitioners should read the LPA if it is available, in order to understand the extent of the attorney?s power.

16. The attorney must follow the statutory principles under the Mental Capacity Act and make decisions in the best interests of the person lacking capacity. If the decision is about life-sustaining treatment, the attorney must not be motivated by a desire to bring about the person?s death. Attorneys also have a legal duty to have regard to the guidance in the Mental Capacity Act (2005) Code of Practice. If there is a dispute that cannot be resolved, eg between the attorney and a doctor, it may have to be referred to the Court of Protection. More information about LPAs is given in chapter 7 of the Code of Practice.

Consent forms
24. Where treatment is provided to a person who lacks capacity following a best interests decision, any consent form should not be signed by someone else unless they have a personal welfare LPA that authorises them to make the decision in question, or they are a court appointed deputy with similar authority. It is good practice to note either in the records or on a ?patient unable to consent? form why the treatment was decided to be in the patient?s best interests.

I think the above covers my earlier point about who can make decisions on your behalf legally and who they should make every effort to involve if there is any suggestion over issues of your capacity to consent. I really do think they are dodgy ground if they refuse to allow you to have support whilst in labour for any reason.

If you want to read more about a Lasting Power of Attorney then you can do so here. I'm not sure it will be helpful to the vast majority of people, but I think this could be useful and of interest to a very small number of people. There is a cost involved of £130 though, and just how this would be respected in this situation I have no real practical knowledge and might be one for a solicitor. If nothing else though its an idea and maybe will provide reassurance to a few people.

I've also just pulled out the following paragraph directly from the Mental Health Act as its pretty relevant and important to birth plans:

64J Factors to be considered in determining whether patient objects to treatment
(1)In assessing for the purposes of this Part whether he has reason to believe that a patient objects to treatment, a person shall consider all the circumstances so far as they are reasonably ascertainable, including the patient's behaviour, wishes, feelings, views, beliefs and values.

(2)But circumstances from the past shall be considered only so far as it is still appropriate to consider them.

From that, I do have to conclude that ignoring birthplans is extremely worrying legally. Even if midwives are rushed off their feet and 'don't have time' they need to be aware of the risks of doing so. They are exposing themselves to the risk of not properly obtaining or respecting consent.

Tbh reading all that has given me much food for thought.

Very good points, soapbox.

That being said, a birth plan isn't going to stop the God awful people who have seriously assaulted and violated people. I really just can't fathom why anyone would think it was acceptable to treat anyone in this way.

You have to get bullies sanctioned, and hard, because they honestly believe they have power and are 'right'.

To clarify the point about birthplans.

If you wrote:
I do not consent to the use of forceps

or:
I do not consent to the use of forceps unless necessary

or:
I do not consent to the use of forceps unless the baby's life is in danger

or:
I do not consent to forceps under any circumstances and understand this potentially my endanger my life

The way it can and should be interpreted would be different.

For the second of third, it would be down to when they decided that intervention is necessary.
For the fourth, they shouldn't use them under any circumstances.
For the first, I do think there is potential the HCP could decide that the circumstances have changed and it is in your best interest to use them or that you don't fully understand the implications because you haven't specifically stated X, Y or Z. I think that technically they shouldn't use them, but there is room for them to argue a case for why they did.

Remembering of course, that at any point you retain the right to change your mind. Which highlights why it is necessary for HCP to constantly review your decision and keep you fully informed and involved in what happens to you.

its really difficult, but this is where birthplans should be taken more seriously as something leading up to birth, because sitting down and discussing is a discussion over consent and fully understanding what could happen. You have to always bare in mind what is 'likely' or 'common' in this context. If you had treatment where a complication leading to intervention was a 10% risk, you would be having these type of consultations ahead of the matter to make sure you fully understood things.

This thread has been like poking an open wound but I've been compelled to keep reading

I ended up with ptsd after the birth of my ds; one of the trigger points was to do with things being done to me that I had no control over. It's so sad to see that there are many people who have had the same hideous experiences.

Red toothbrush....... The focus of the campaign would be, 'women are being raped during childbirth'. If we take away all the fancy wording this is what it amounts to. It needs to be targeted towards the media, the politicians and NHS regulating bodies.

I was overdue and the mw who said she was going to check if I needed an induction pessary, gave me a sweep without my consent. She said, 'you're overdue so I'm not going to mess around'. She left me bleeding, sore and f**ing annoyed. My baby went into severe foetal distress straight after this and I was left for 12 hours overnight. By the morning they slapped a monitor on and there was barely a heartbeat so I was rushed off for an emergency cs. He spent 10 days in the nicu. where I was told her would have lifelong disabilities.

I think you'd have problems using that as a focus. I get your point, and it would be hard hitting, but I also think it would be counterproductive too.

Its criminal assault, but not rape. If you are accusing medical professional of a different crime under law you are going to run into problems.