The Supreme Court of Victoria found a hospital liable in battery and negligence after a vaginal examination was performed without the patient’s free and voluntary consent, despite a clear birth plan declining such examinations absent urgent medical need.
Supreme Court of Victoria Decision: Gawthrop v Bendigo Health [2026] VSC 157
Consent is not a formality. Even if the patient eventually says “yes”, if the patient is placed in a position of “no real choice”, consent may be invalidated, exposing practitioners and institutions to liability in both battery and negligence.
The Supreme Court of Victoria has ruled in favour of Larissa Jayne Gawthrop in her claims against Bendigo Health, finding the hospital liable for negligence and battery during the birth of her first child.
This is a landmark case that centred on the hospital's requirement for a vaginal examination as a precondition for admission, access to pain relief, and the involvement of a hospital midwife (and not her previously assigned Mamta midwife), despite the plaintiff's explicit refusal to vaginal examination in her birth plan.
This decision highlights critical issues surrounding informed consent, hospital policies, and patient rights (including the importance of continuity of care), offering valuable lessons for medical practitioners, insurers and insureds. It emphasises that a patient’s consent must be given without undue pressure or coercion, which coincidentally was exactly as outlined in Bendigo Health's own Informed Consent Policy.
Larissa Gawthrop, a first-time mother, was enrolled in Bendigo Health's Mamta programme (Mamta) and assigned a midwife. One of Mamta’s core principles was to provide continuity of care during pregnancy and birth.
Ms Gawthrop prepared a detailed birth plan, explicitly declining all vaginal examinations unless medically urgent. This preference was informed by her sister's traumatic childbirth experience and her desire for a low-intervention birth. The birth plan was discussed with Mamta midwives during antenatal consultations, and Gawthrop was reassured that her preferences were achievable.
On 17 November 2020, Gawthrop, four days overdue, experienced early labour at home. Her husband made several calls to the hospital, reporting her condition. They arrived at the maternity ward at 11:05pm. Despite her refusal, the hospital midwife insisted on a vaginal examination, citing hospital policy. The hospital did not admit Ms Gawthrop, provide her with any pain relief or call her Mamta midwife before she agreed to a vaginal examination being performed.
Over the next two hours, Gawthrop repeatedly declined the procedure, but eventually consented under duress at 1:10am. Ultimately, she agreed to the procedure after being told she would not be admitted, receive pain relief, or have her chosen midwife called without it. Following the examination, she was admitted, her Mamta midwife was called, and pain relief was administered. Gawthrop gave birth to a healthy baby boy at 6:38am.
As a result of the incident, Ms Gawthrop claimed general damages, special damages agreed in the sum of $5,288.55 and aggravated damages.
The court examined two primary claims by Ms Gawthrop, for negligence and battery:
The hospital contended that its actions were consistent with professional standards and that Gawthrop had provided verbal and implied consent.
The court considered whether:
Justice O'Meara found in favour of Ms Gawthrop, concluding that the hospital breached its duty of care and that the vaginal examination was performed without valid consent.
The court determined that:
The court criticised the hospital's policies, which were found to be inconsistently applied and in conflict with the Safer Care Victoria guidelines (SCV Guidelines). Relevantly, the SCV Guidelines state that admission to the hospital should not be solely determined by active labour and that a woman's individual needs and preferences should be considered.
The court found that the hospital's failure to address the plaintiff's birth preferences during antenatal care contributed to the events that unfolded.
The court recognised that the vaginal examination had aggravated the plaintiff's pre-existing post-traumatic stress disorder, leading to long-term anxiety, flashbacks, and a diminished quality of life. Her ability to work in her chosen field of healthcare was also severely impacted.
The court awarded Ms Gawthrop:
However, her claim for aggravated damages was dismissed. The court found no evidence of malice or high-handed conduct by the hospitals staff.
This decision underscores the importance of respecting patient autonomy and obtaining informed consent in medical settings, including what will constitute informed consent.
It serves as a reminder that patient-centred care (as emphasised in the SCV Guidelines), is not only a best practice but also a legal obligation.
This decision highlights a material litigation risk in maternity care where:
The case reinforces the need to:
Hospitals and healthcare providers must ensure that their policies align with legal and ethical standards, particularly regarding invasive procedures. This case signals the importance of scrutinising systems, training, and communication practices in risk assessments.
Insurers should review their clients' practices to mitigate risks associated with consent-related claims and should work closely with their clients to ensure compliance with consent policies and mitigate the risk of similar claims in the future.
For practitioners and institutions, this case highlights the need for clear communication with patients about hospital policies and the importance of documenting consent comprehensively. It serves as a reminder that failure to adhere to these principles can result in significant legal and reputational consequences for healthcare providers and may result in increased exposure in claims involving psychiatric injury arising from consent disputes.
This article was written by Rosie Blakey-Scholes Senior Associate Insurance & Risk.