In the October spotlight section we have chosen to highlight an article which was included in the March 2023 edition of the digest, and has since been debated widely in the literature. The JME article by van der PiJl et al., The ethics of consent during labour and birth: episiotomies, focuses on consent in labour. The authors argue that current practice for consenting in labour and birth must be improved upon, and suggest ways a higher standard of consent in this space ought to be achieved. Below we present the original article which sparked the debate, followed by a selection of responses. The final article is a response from the authors of the original article.

The ethics of consent during labour and birth: episiotomies
Marit van der Pijl, Corine Verhoeven, Martine Hollander, Ank de Jonge, Elselijn Kingma
Journal of Medical Ethics, 30 January 2023
Abstract
Unconsented episiotomies and other procedures during labour are commonly reported by women in several countries, and often highlighted in birth activism. Yet, forced caesarean sections aside, the ethics of consent during labour has received little attention. Focusing on episiotomies, this paper addresses whether and how consent in labour should be obtained. We briefly review the rationale for informed consent, distinguishing its intrinsic and instrumental relevance for respecting autonomy. We also emphasise two non-explicit ways of giving consent: implied and opt-out consent. We then discuss challenges and opportunities for obtaining consent in labour and birth, given its unique position in medicine. We argue that consent for procedures in labour is always necessary, but this consent does not always have to be fully informed or explicit. We recommend an individualised approach where the antenatal period is used to exchange information and explore values and preferences with respect to the relevant procedures. Explicit consent should always be sought at the point of intervening, unless women antenatally insist otherwise. We caution against implied consent. However, if a woman does not give a conclusive response during labour and the stakes are high, care providers can move to clearly communicated opt-out consent. Our discussion is focused on episiotomies, but also provides a useful starting point for addressing the ethics of consent for other procedures during labour, as well as general time-critical medical procedures. 

 

Consent and the problem of epistemic injustice in obstetric care
Commentary
J Y Lee
Journal of Medical Ethics, 30 August 2023
Excerpt
An episiotomy is ‘an intrapartum procedure that involves an incision to enlarge the vaginal orifice,’1 and is primarily justified as a way to prevent higher degrees of perineal trauma or to facilitate a faster birth in cases of suspected fetal distress. Yet the effectiveness of episiotomies is controversial, and many professional bodies recommend against the routine use of episiotomies. In any case, unconsented episiotomies are alarmingly common, and some care providers in obstetric settings often fail to see consent as necessary in context. In their article, ‘The ethics of consent during labour and birth: episiotomies,’ van der Pijl et al reiterate that consent is necessary for episiotomies. They specify, further, that the antenatal period is crucial for exchanging information, establishing trust between the birthing subject and provider, and exploring the birthing subject’s—rather than the care provider’s—values and preferences regarding episiotomies. They recommend an individualised approach, which would enable birthing subjects to choose how and when they want to give consent…

Capacity assessment during labour and the role of opt-out consent
Commentary
Kelsey Mumford
Journal of Medical Ethics, 30 August 2023
Excerpt
Previous studies investigating the extent to which pregnant persons retain decision-making capacity during labour have shown poor recall, a component of capacity, about consent processes during obstetric emergency procedures in 14%–49% of cases. As the feature article acknowledges, this does not mean that pregnant persons should be assumed to lack decision-making capacity during labour. Although pain, labour intensity, exhaustion and medications can make consenting processes during labour more difficult and it is possible that these factors will result in the impaired ability of the pregnant person to make informed and voluntary decisions about treatment options, this possibility of impaired capacity should not be taken as the expected outcome nor should it be used as an excuse to skip consenting procedures. The default to treat labouring patients as able to make their own decisions still stands…

Episiotomies and the ethics of consent during labour and birth: thinking beyond the existing consent framework
Commentary
Anna Nelson, Beverley Clough
Journal of Medical Ethics, 30 August 2023
Excerpt
We agree with van der Pijl et al that the question of how to ensure consent is obtained for procedures which occur during labour and childbirth is vitally important, and worthy of greater attention. However, we argue that the modified opt-out approach to consent outlined in their paper may not do enough to protect the choice and agency of birthing people. Moreover, while their approach reflects a pragmatic attempt to facilitate legal clarity and certainty in this context, this is not necessarily responsive to the messy realities of decision-making during labour (and beyond). We outline some of our concerns with their proposals and demonstrate how these illuminate some broader, longstanding tensions around consent and medical law…

Birth, trust and consent: reasonable mistrust and trauma-informed remedies
Commentary
Elizabeth Lanphier, Leah Lomotey-Nakon
Journal of Medical Ethics, 30 August 2023
Excerpt
    In ‘The ethics of consent during labour and birth: episiotomies,’ van der Pijl et al respond to the prevalence of unconsented procedures during labour, proposing a set of necessary features for adequate consent to episiotomy. Their model emphasises information sharing, value exploration and trust between a pregnant person and their healthcare provider(s). While focused on consent to episiotomy, van der Pijl et al contend their approach may be applicable to consent for other procedures during labour and beyond pregnancy-related care.
One feature of their model for adequate informed consent is trust in the systems in which prenatal and labour and delivery care are provided. Yet, for some pregnant persons, mistrust in health systems is a reasonable sequela of experiences like racism and epistemic injustice. For a programme in which trust is central to adequate consent, it is important to identify—and counter—forms of mistrust toward pregnant persons within healthcare and acknowledge and rectify reasonable mistrust of pregnant persons toward healthcare…

Extending the ethics of episiotomy to vaginal examination: no place for opt-out consent
Commentary
Rebecca Brione
Journal of Medical Ethics, 30 August 2023
Excerpt
   van der Pijl et al argue that if ‘stakes are high’ and there is ‘clear conviction by the care provider’ that it is ‘necessary’, episiotomy may be given after ‘opt-out consent’. Here I caution against the applicability of their approach to vaginal examination (VE): another routine intervention in birth to which they suggest their discussion may apply. I highlight three concerns: first, the subjective and unjustified nature of assessments of ‘necessity’; second, the inadequacy of current consent practices in relation to VE; and third, the significant risk of perpetuating under-recognised harms associated with unwanted or unconsented VE. I argue that opt-out consent cannot be ethically justified for VE. Its use would result in further weakening of consent practices, circumvention of individuals’ autonomy, and greater harm for women and birthing people.
At the outset, it is important to recognise that the authors do not claim that their approach should be applied to VE, merely that their discussion may have relevance to consent for other interventions beyond episiotomy ‘where consent is also frequently lacking, and which are under-researched’, including VE.1 Nonetheless, it is easy to assume that episiotomy and VE are sufficiently similar that their analysis might be transferred wholesale. I disagree…

Safeguards for procedural consent in obstetric care
Commentary
David I Shalowitz, Steven J Ralston
Journal of Medical Ethics, 30 August 2023
Excerpt
Van der Pijl et al outline data suggesting an alarmingly high incidence of violation of the bodily integrity of patients in labour, including episiotomies performed without patients’ consent, or over their explicit objection.1 Similar data have been reported from the USA and Canada. The authors appropriately conclude that explicit consent is required at the time of all invasive obstetrical procedures, including episiotomy. Commonsense adjustments to the duration and detail of consent under conditions of clinical urgency are appropriate and should be familiar to any clinician involved in perinatal care, as well as non-obstetric proceduralists caring for acutely ill patients. However, complete omission of consent for any of these procedures is both disrespectful to patients’ autonomy and strongly associated with morbidity from birth-related psychosocial trauma…

Informed decision-making in labour: action required
Commentary
Gordon M Stirrat
Journal of Medical Ethics, 30 August 2023
Excerpt
    The timely feature article by van der Pijl et al 1 highlights not only the widespread frequency with which unconsented episiotomies and other procedures during labour are reported by women but also that there is hardly any discussion in the literature on the ethics of consent for procedures in labour. Those national and international bodies with responsibility for midwifery and obstetric practice need not only to recognise but also act to remedy this unacceptable situation.
The studies quoted used the recollection of women in reporting consent or lack of it and, although this is an entirely appropriate measure, it gives no insight into what, if any, informed decision-making the care providers carried out. Such information would be useful to determine how better practice might be achieved. A study into the practice of episiotomies by Dutch midwives and obstetricians is referred to and is not reassuring.2 They frequently expressed surprise that consent should be necessary and women were minimally involved in the decision for performing episiotomy. This and other examples quoted of lack of valid consent have a corrosive effect on the fundamental but fragile trust and necessary trustworthiness of the relationship between the person being cared for…

Setting a human rights and legal framework around ‘the ethics of consent during labour and birth: episiotomies’
Commentary
Bashi Kumar-Hazard, Hannah Grace Dahlen
Journal of Medical Ethics, 30 August 2023
Excerpt
    We commend the authors for their comprehensive discussion on consent and episiotomies. They correctly observe that informed consent for all proposed interventions in maternity care is always necessary. The claim that consent for maternity health services does not always have to be fully informed or explicit, however, is erroneous. We are especially concerned with, and surprised by, the endorsement of ‘opt-out consent’. ‘Opt-out consent’ (a.k.a. substitute decision making) is already standard practice in maternity healthcare, with obstetric violence a normalised response to conclusive refusals or requests for explanations.
Informed consent is based on the fundamental human rights to bodily autonomy and integrity, which healthcare providers are obliged to respect. Healthcare structured around human rights violations is not care. It is cruel and inhumane treatment—a violation of yet another fundamental human right—and a reflection of poor-quality care. To be valid, consent must always be informed, specific, timely, freely given and reversible. The provider must provide information specific to each and every proposed intervention in a timely manner. The consumer has the right to consider, freely accept or refuse before providers can act. They can also change their mind at any time…

Consent and episiotomies: do not let the perfect be the enemy of the good
Commentary
Elselijn Kingma, Marit van der Pijl, Corine Verhoeven, Martine Hollander, Ank de Jonge
Journal of Medical Ethics, 30 August 2023
Excerpt
… Neither informed consent alone, nor our proposal, can solve every problem in maternity care. Commenting authors noted several limitations and further challenges. But nearly all agree our proposal is a very significant and realistic step in the right direction, which can significantly improve the situation for vast numbers of women and healthcare providers. We particularly emphasise the importance of multilevel institutional support and ongoing education in its implementation and want to draw attention to our original discussion of the intrinsic value of asking consent: this retains significant value even among many other shortcomings and (perhaps especially) power differences. Our practising healthcare providers, finally, emphasise that within the reality of a busy maternity ward there are very many challenges. We should not let the perfect be the enemy of what nearly all commentators agree is a very significant improvement, which has potential for (well researched and suitably modified) application to other interventions in labour.