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Can a patient qualify their consent to undergo a medical procedure by restricting medical personnel taking measures that are usually necessary or uncontroversial?
Consider the case of Larissa Gawthrop and whether of not a vaginal examination performed while she was in labour had been properly consented to.
The case turned on events during the birth of Gawthrop’s first child in November 2020.
She had joined Bendigo Health’s ‘Mamta’ continuity-of-care program and had prepared her own birth plan.
That plan recorded that she declined all vaginal examinations unless there was an urgent medical reason, and that informed verbal consent was required.
The qualification came from having been deeply affected by witnessing her sister undergo repeated vaginal examinations during childbirth and having herself experienced serious trauma as a youth.
On the evening of 17 November, Gawthrop was four days overdue and had been experiencing contractions. Her husband contacted the hospital, and the couple arrived at about 11:05 pm expecting that she would be admitted to give birth.
A hospital midwife asked the patient to have a vaginal examination to establish whether she was in active labour. She declined and asked for her Mamta midwife to be called.
A supervising midwife directed staff to follow what was understood to be hospital policy.
Over the next roughly two hours, the patient was repeatedly told, in substance, that she would need the examination before her Mamta midwife could be called, before she could be admitted, and before she could receive pain relief.
Gawthrop agreed to an AmniSure test in the hope that it would avoid an internal examination.
It confirmed that her waters had broken, but the requirement for a vaginal examination persisted.
Her husband then sought confirmation that no Mamta midwife, admission or pain relief would be provided unless she had it. He was told that was correct.
By the time the examination occurred shortly after 1:10 am, the patient was in pain, distressed and increasingly panicked.
Her husband understood her to be ‘defeated’ rather than willing.
Her eventual delivery of a healthy baby boy was otherwise uneventful.
The incident had though significantly aggravated her pre-existing post-traumatic stress condition that had largely been in remission. It resulted in ongoing anxiety, flashbacks, occasional nightmares, her domestic relationship and had a significant negative impact on her capacity to work in health care.
A lawsuit seeking compensation for ‘battery’ – alleging the vaginal examination was performed without a valid medical consent – followed.
Ms Gawthrop’s case was that she felt pressured and consented because she needed help given her baby was coming and had been given no meaningful alternative.
The case came before Justice Stephen O’Meara in the Supreme Court of Victoria.
He observed that the common law protects a competent adult’s control over their own body, and medical consent must be actual, free and voluntary.
Apparent consent may be invalid – he noted – where pressure removes genuine choice.
The judge concluded from the evidence that Gawthrop felt she had no option but to submit and that her consent was therefore not freely and voluntarily provided.
That established her battery claim.
The court also found negligence by way of a breach of the hospital’s own policy which required voluntary consent, prohibited pressure and required a genuine choice.
A separate negligence count got up on the basis the hospital failed to inform her that an out-of-hours hospital policy might be applied so as to require a vaginal examination before admission, pain relief or the calling of her Mamta midwife.
General damages for all claims were assessed at $275,000 and agreed special damages at $5,288.55.
Aggravated damages were sought but not awarded because although the hospital’s conduct was wrongful, it not high-handed, malicious or taken in ‘contumelious disregard’ of the patient’s circumstances.
Gawthrop v Bendigo Health – [2026] VSC 157 O’Meara J, 27 March 2026
Categories: Medical Negligence