Court of Appeal (WA)|2004-09-22|Before: Malcolm CJ

Sheppard v Swan [2004] WASCA 215 (22 September 2004)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : SHEPPARD -v- SWAN [2004] WASCA 215

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Citation Number : [2003] WADC 82

Tort - Negligence - Whether duty to inform patient during treatment of alternative procedure - Role of expert opinion - Adequacy of reasons - Whether reasonable apprehension of bias - Turns on own facts

Beale v GIO of New South Wales (1997) 48 NSWLR 430

Bolam v Friern Hospital Management Committee [1957] 1 WLR 582

Charleston v Smith [1999] WASCA 261

Devries v Australian National Railways Commission (1993) 177 CLR 472

Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226

Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540

Kaycliff v Australian Broadcasting Tribunal (1989) 90 ALR 310

Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434

Suvaal v Cessnock City Council [2003] HCA 41; (2003) 77 ALJR 1449

Mocevic v Prok Group [2001] WASCA 45

Pallot & Ors v Harrison, unreported; SCt of WA; Library No 950261; 12 May 1995

Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317

Woods v Multi-sport Holdings Pty Ltd (2002) 208 CLR 317

Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

1 MALCOLM CJ: In my opinion, this appeal should be dismissed for the reasons to be published by McLure J. I also agree with the additional comments made by Heenan J. There is nothing that I could usefully add.

2 MCLURE J: The appellant gave birth to her first child at around 7.47 pm on 9 August 1998. The baby was very large, weighing 5.3 kilograms (11 lbs 13 oz). Notwithstanding a difficult delivery, it appears the baby suffered no adverse consequences.

3 The respondent is a general practitioner who at the material time practised in obstetrics. She holds a Diploma in Obstetrics and Gynaecology from the Royal College of Obstetricians and Gynaecologists and, by 1998, had delivered or assisted in the delivery of more than 1,500 babies. She estimated that more than 100 weighed in excess of 10 lbs. By 1998, she was delivering about 130 babies annually. Of these, 80 per cent were vaginal deliveries. In the other 20 per cent, she assisted with caesarean sections. She did not perform caesarean sections herself.

4 The appellant claimed the respondent was negligent in various aspects of her performance during the vaginal delivery of the baby. The learned trial Judge, H H Jackson DCJ, held that the respondent was not negligent and dismissed the claim. The appellant appeals from that decision. The central medico-legal issue in the appeal (ground 3) is whether during labour, the respondent should have offered or informed the appellant of the option of having a caesarean section rather than proceeding with the vaginal delivery. The appellant contended that if the respondent had so advised her, she would have proceeded by way of caesarean section and thus avoided the personal injuries associated with the vaginal delivery which included an episiotomy, pelvic floor injury and nerve damage. Other issues in the appeal include whether the trial Judge:

(a) erred in his finding as to the content of a consultation involving the appellant, the respondent and a specialist obstetrician Dr Hugo on 4 August 1998 (ground 1);

(b) erred in concluding that the contemporaneous records favoured the respondent's evidence where it conflicted with the appellant's (ground 2);

(c) failed to give adequate reasons in respect of a number of findings (ground 4);

(d) was required to make findings on matters solely for the purpose of assessing the respondent's credibility (ground 5);

(e) was biased (ground 6).

5 Between 15 January 1998 and 8 August 1998 the appellant attended upon the respondent on at least 13 occasions for antenatal care and assessment. During the course of the antenatal visits it was evident that the appellant had experienced significant weight gain during the course of her pregnancy.

6 By 3 August 1998 the appellant was overdue. The respondent arranged for the appellant to attend at Saint John of God Hospital, Murdoch ("hospital"), for a CTG trace, which was non-reactive. The appellant stayed in hospital over night. On 4 August 1998 the respondent consulted Dr Hugo about the appellant. What was said and done by Dr Hugo during that consultation was in dispute at trial. The appellant returned home.

7 On 8 August 1998 the appellant was admitted to the hospital under the care of the respondent for assessment and if appropriate for induction delivery of the baby. The appellant commenced experiencing contractions at about 11.45 pm on 8 August 1998. At about 7.30 am on 9 August 1998 the respondent augmented the appellant's labour by commencement of a Syntocinon drip. At various times the rate of administration of the Syntocinon was increased at the respondent's direction. Between 2.30 pm and 6 pm on 9 August the appellant slowly progressed to full cervical dilation and the descent of the baby was progressing. The appellant complained of significant and unrelenting pain in this period. The appellant had had an epidural block administered earlier that day. The respondent authorised an epidural top up at 4.30 pm but refused further top ups from 6.10 pm and thereafter. About 7.30 pm, after informing the appellant of her intention, the respondent proceeded to perform an assisted delivery by using vacuum suction. During this process the baby's heart rate dropped as a result of which the respondent performed an episiotomy after injecting the appellant's perineum with local anaesthetic. The baby's head emerged but his shoulders were impacted. They were dislodged and the baby was delivered.

Specialist Consultation (grounds 1, 4(a) and (b))

8 The appellant contends that the trial Judge erred in fact and in law in his finding as to the advice sought and obtained by the respondent from Dr Hugo on 4 August. That finding required the resolution of a conflict of evidence between the appellant and the respondent. The trial Judge preferred the respondent's evidence on this subject.

9 It was no part of the appellant's pleaded claim that the respondent ought to have consulted a specialist obstetrician at this stage although the fact of the consultation was pleaded in the defence. However, both parties accept that it was an issue at trial although the parameters of the alleged duty were never clearly identified. It seems to be accepted by both parties that if the respondent's evidence of the consultation with Dr Hugo on 4 August is accepted, the respondent had satisfied the relevant (but not specifically identified) duty and standard of care.

10 The trial Judge found that there is no means by which the weight of a baby in utero can be reliably estimated. That finding is not challenged in the appeal. The respondent said that around this time she had the feeling the appellant was carrying a big baby. There is a higher probability of difficulty in delivery of a big baby. She said it was her intention that the appellant see a specialist while she was in hospital because, among other things, she felt the appellant was having a big baby and she was concerned about possible shoulder dystocia. The respondent went out of the room to arrange for a specialist to come and review the appellant. She went to the hospital reception and Dr Hugo happened to be there. She told Dr Hugo that she had a patient with a big baby, an abnormal CT tracing and she thought the shoulders were going to get stuck and could he come and see her. They returned to the appellant's room. Dr Hugo did a supra pubic (abdominal) and a vaginal examination of the appellant. He then said:

"It's about 8 lbs 5 and it's just going to fall out. I had one the other week and it will just fall out. I would not induce her. I would repeat the trace and send her home."

As a result, the respondent felt comfortable in proceeding. The respondent maintained an antenatal card for the appellant in which she recorded relevant information relating to the pregnancy. Adjacent to the date of 7 August 1998 is the following comment:

"review by Dr Hugo? big baby? PG (prostaglandin) induction

saw Dr Hugo."

11 The respondent said that to enable Dr Hugo to charge for the consultation, she wrote to him in the following terms:

"Thank you for seeing this person, query big baby, query prostaglandin induction."

The letter was not in evidence in the appeal. However, her evidence on this point was not challenged. The respondent also made an entry on 4 August 1998 in the hospital integrated progress notes as follows:

12 The respondent said she wrote the note for the purpose of communicating instructions to the hospital nursing staff. Her intention was not to record all she was told by Dr Hugo.

13 The appellant's evidence was as follows. Two or three weeks before she was due the respondent told the appellant that she might have a trial of labour and if things did not progress, she would call in a specialist for a caesarean section. Indeed, it was not in dispute that the respondent informed the appellant at the outset that if there were any problems during the appellant's pregnancy or delivery she would call in a specialist. On 4 August the appellant and the respondent were discussing the fact that the CTG scan had not reacted when Dr Hugo walked past the appellant's hospital room and the respondent said "Here's Dr Hugo. Shall we get his opinion?". The appellant knew Dr Hugo because he had performed an ultrasound on her. The appellant said the respondent asked Dr Hugo for his opinion on the CTG scan and whether the appellant should be induced the following day. Dr Hugo did a vaginal examination and advised the respondent to repeat the scan after the appellant had something to eat and drink and if it reacted, to induce the appellant the following Monday. According to the appellant the baby's weight and how the baby was to be delivered were not discussed. However, the appellant agreed in cross-examination that she understood Dr Hugo to say that she could wait another six days before a vaginal delivery of the baby. It was put to the appellant in cross-examination that Dr Hugo's purpose in conducting the vaginal examination was to check the adequacy of her pelvis for delivery of the baby. The appellant thought Dr Hugo was trying to stimulate labour.

14 Dr Hugo recalled that he had a consultation with the appellant and the respondent but had no recollection of the detail of what occurred. He said that if he was considering whether a larger than average baby could be delivered vaginally he would conduct a pelvic examination and an abdominal examination. I infer from the parties' submissions that it is common ground that the pelvic examination would be a vaginal examination to check the adequacy of the pelvis. As to the expression the baby would "fall out" he said that is a description he had used in the past and would probably use again. Dr Hugo was not cross-examined on these matters.

15 The trial Judge made a general credibility finding about the respondent. He said ([135]):

"The [respondent] was subjected to minute, detailed cross-examination of the course of events during the [appellant's] time under her care. The [respondent] was both honest and attempted to be painstakingly accurate and fair to others. Where the parties differ, the contemporary records tend to support the [respondent]. A large number of allegations of negligence are made. She gave very thoughtful and careful attention to the questions and her answers and I was impressed by her honesty and thoroughness. She is a very experienced practitioner in the limited field of obstetrics in which she practices and, obviously, cares deeply for her patients and their babies."

16 The trial Judge dealt with the specialist consultation in question in the following terms (at[139] and [140]):

"I specifically accept the [respondent's] account of the matters upon which Dr Hugo was consulted. The important issue is not precisely how that consultation came to be organised. In my view, it is entirely reasonable to accept that the records support, or are consistent with, the [respondent's] account. Neither the [appellant] nor Dr Hugo was able to contradict the evidence. I draw no inference from the lack of any notes made or account rendered by Dr Hugo.

In any event, no suggestion was put to him about that. Rather, he agreed that the phrases remembered by the [appellant] as being ones he used were one he did on occasions use. They suggest that the consultation went beyond concern with a non-reactive trace, as does the fact that he undoubtedly performed a vaginal and abdominal examination."

The appellant contends that the decision to accept the respondent's evidence on this matter was fundamentally flawed because the trial Judge made errors about the evidence and failed to adequately explain his reasons in key respects.

17 It is not in dispute that the trial Judge has a duty to state his reasons for decision. The function of reasons is to preserve the integrity of the appeal process. In determining the sufficiency of reasons, it is necessary to look at the reasons as a whole and, if necessary, in the context of the evidence to see if they give the sense of what was intended in a way that achieves the required function and purpose of reasons: Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226 per Owen J at 248; Charleston v Smith [1999] WASCA 261 per Malcolm CJ at [15]. The content of the obligation to state reasons is not the same for every judicial decision and no mechanical formula can be given for determining what reasons are required: Beale v GIO of New South Wales (1997) 48 NSWLR 430 at 443.

18 The trial Judge assessed the respondent as a generally honest and reliable witness. He also accepted the respondent's evidence on this issue based in part on objective factors. In particular, he assessed that the records support, or are consistent with, the respondent's account. This is the first alleged error. The only relevant records in evidence are the antenatal card and the respondent's entry in the hospital's integrated progress notes. First, the antenatal card. In the absence of cross-examination or challenge as to the circumstances in which the entry was made, it is to be inferred that it was made on or about 7 August 1998 to record the purpose and fact of the consultation with Dr Hugo. The reference to "big baby?" inferentially raises the issues of the size of the baby and the appropriateness of a vaginal delivery. The note supports the respondent's evidence. So too does the letter to Dr Hugo for the same reason.

19 Having regard to the content of the entry in the hospital's integrated progress notes it is reasonable to accept the respondent's explanation that it was made for the purpose of instructing nurses as to the future course of action rather than as a summary of the consultation with Dr Hugo. On that basis the entry is not inconsistent with the respondent's evidence concerning the consultation with Dr Hugo. In my view, the trial Judge did not make a material error in his assessment of the documentary evidence.

20 The appellant also says there were difficulties with the respondent's evidence. Firstly, it is contended that on the respondent's evidence Dr Hugo did not address the question of possible shoulder dystocia. I disagree. His estimation of the baby's weight and that it would "fall out" clearly addresses that issue. Secondly, it is contended that the respondent in cross-examination contradicted her evidence-in-chief that she had intended to refer the appellant to a specialist prior to and regardless of the non-reactive trace. The appellant did not identify the specific evidence said to support the contention. I do not accept that the respondent's evidence in cross-examination (at AB 424 - 426) contradicts her evidence-in-chief that it was her intention that the appellant see a specialist at term. She repeated in cross-examination that one of her motivating factors for seeking specialist advice was the size of the baby.

21 The appellant also relies on alleged errors in the trial Judge's assessment of Dr Hugo's evidence. Dr Hugo had no recollection of the detail of the consultation and to that extent he was not, as the trial Judge correctly noted, able to contradict the respondent's evidence. However, in the course of his survey of the evidence, the trial Judge said that Dr Hugo's evidence "is suggestive that he did both an abdominal and vaginal examination" without identifying why or how. This is an observation about the evidence not a finding and its accuracy is easily tested. The failure to explain does not itself give rise to an appealable error.

22 Dr Hugo's evidence considered in isolation does not suggest that he did either an abdominal or vaginal examination. This is the first error complained of. However, his evidence tends to support the respondent's evidence. There is no doubt that if, as the respondent claimed, she had sought Dr Hugo's opinion on whether the appellant's baby could be delivered vaginally, he would have done an abdominal and vaginal examination. The respondent's evidence was that he did both and the appellant's evidence was that he did a vaginal examination but not an abdominal one. Whilst it is correct to say that Dr Hugo undoubtedly performed a vaginal examination, in view of the conflict of evidence it is not correct to say (as the Judge did) that he undoubtedly performed an abdominal examination. That is the second error complained of.

23 The trial Judge also referred to "the phrases remembered by the plaintiff" (appellant). That must be intended to be a reference to the statement remembered by the respondent not the appellant that the baby would "fall out". Dr Hugo was not examined or cross-examined on any other phrase. The respondent's evidence of the language in which Dr Hugo conveyed his opinion (that the baby would "fall out") is consistent with Dr Hugo's evidence that he would use such non-technical colourful language.

24 It is the case that the trial Judge made errors in his summary of the terms and effect of the evidence in the ways identified. However, for the reasons given it is the case that Dr Hugo's evidence tends to support the respondent's evidence.

25 The appellant also complains of vagueness and inaccuracy in the trial Judge's statement in par 139 of his reasons that the appellant was unable to "contradict the evidence". It is said the reasons are defective because the trial Judge did not specifically identify the evidence to which he was referring. The phrase immediately follows reference to the documentary evidence said to be consistent with the respondent's account. In context "the evidence" can only mean the documentary evidence and its support of the respondent's account of the matters upon which Dr Hugo was consulted. The trial Judge had noted in his summary of the evidence that the appellant did contradict aspects of the respondent's evidence of what was said during the consultation when she was acknowledged to have been present. The trial Judge cannot have been referring to those matters. There were other matters on which the appellant was unable to provide meaningful comment such as the respondent's evidence of a discussion between her and Dr Hugo at reception and Dr Hugo's purpose in conducting the vaginal examination. However, it is the case that the appellant was not able to effectively contradict the contemporaneous documentary evidence. In context, the Judge's observation that the appellant "cannot contradict the evidence" must be intended to mean she was unable to effectively contradict the respondent's evidence because it was supported by the records.

26 It is the case that the trial Judge made a number of incorrect statements relating to the evidence. However, the errors were not of such a number or magnitude as to undermine his acceptance of the respondent's evidence of the consultation which was, in my view, in accordance with the weight of the evidence. Further, although the reasons fall short of what is ideal, when examined as a whole and in the context of the evidence they are sufficient for the required purpose of assessing whether there is appealable error. I would dismiss this ground of appeal.

27 The appellant contends the trial Judge erred in fact in finding (at [135]) that where the evidence of the appellant and respondent differed, the contemporary records tended to support the respondent and in law by failing to identify the contemporary records to which he referred.

28 In my view, there is no merit in either ground. As to the alleged factual error, the starting point is to identify the areas in which the parties differed in their evidence on matters relevant to the facts in issue. On my reading of the material, that occurred in relation to two matters. The first concerns the specialist consultation the subject of ground 1. As noted earlier, the records are easily identified from the reasons as a whole and the evidence and they either support the respondent's evidence or are not inconsistent with it.

29 The second relates to whether the appellant had, as she said, informed the respondent that if the baby weighed more than 9 lbs she wanted a caesarean section. On this issue the trial Judge said:

"For the common sense and practical reasons given by the [respondent] and in light of the expert evidence concerning the predictability of birth weight, evidence of which the [respondent] was aware, I do not accept the [appellant's] evidence that she told the [respondent] that if the baby was to weigh nine pounds or more, she was to be transferred to other care for a caesarean section to be performed."

30 The respondent denied that such a conversation ever occurred. She said if it had been raised, she would have immediately referred the appellant to a specialist because she was not responsible for the baby's weight (by which I understand her to mean she could not reliably predict the baby's weight) and she did not do caesareans. The trial Judge made the unchallenged factual finding that it is difficult to reliably predict the weight of a baby in utero.

31 The trial Judge also said that the absence of any clinical note by the respondent on this subject "suggests it did not occur". It is the case that when the appellant expressed to the respondent a position on a relevant matter, such as having an episiotomy and an epidural block, it was noted by the respondent on the antenatal card. It is reasonable for the Judge to infer that if the appellant had instructed the respondent to refer her to a specialist if the baby weighed 9 lbs or more, it would have been recorded.

32 A third matter on which the trial Judge rejected the appellant's evidence was on the question of causation. He did not accept that if she had been offered a caesarean section during labour and was properly advised about that course, she would have decided to have a caesarean section. This finding did not involve resolving any conflict of evidence with the respondent. It is an independent ground of appeal to be addressed later.

34 The appellant failed in her pleaded claim that at 2.30 pm or alternatively at 4.30 pm on 9 August the respondent had breached her duty to recommend to the appellant that she undergo a caesarean section. The trial Judge accepted the evidence of Professor Pepperell and Associate Professor Dickinson that it was not medically indicated, necessary or desirable that the appellant undergo a caesarean section at either of the nominated times or at any time during the labour. That finding is not challenged in this appeal. The appellant's contention at the hearing of the appeal was that by about 4.30 pm the respondent had a duty to disclose to the appellant that a caesarean section was an alternative option to that of proceeding with vaginal delivery. The trial Judge said (at [144]):

"[Counsel for the appellant] argues that, by 4.30 pm on the day of labour and thereafter, the issues should have been discussed with the [appellant] and a decision left to her, in light of that, to give informed consent as to whether to have a caesarean section. My view of the expert evidence is that it establishes that no such recommendation was called for. In my view, to suppose that informed decision making could, and indeed should, be properly left to the [appellant] in the absence of such a recommendation, is not established."

35 The appellant contends that the passage reveals two errors of principle, the first being that the respondent did not have a duty to discuss with the appellant her options of continuing with a vaginal delivery or having a caesarean section unless a recommendation in favour of a caesarean section was required. The second alleged error is that the trial Judge approached the question of whether the respondent had a duty to discuss options with the appellant as an issue of fact to be determined on the expert medical evidence.

36 Professor Pepperell gave evidence on the subject of the woman's decision making role which the trial Judge described in his reasons as "obviously appropriate". The evidence was as follows:

"Ultimately, apart from in an emergency situation, would you agree that the decision whether or not a woman should have a caesarean section is one for her with the advice and guidance of her medical practitioner and perhaps the midwives? It's her choice, isn't it?---She is certainly in a position to influence that decision and she should be, but she's ultimately not got the experience of either the general practitioner or the obstetrician, depending on the amount of experience the general practitioner has had in labour ward care.

...

That decision should be put to them in that sort of a manner: these are the options, these are the recommendations, you choose the pathway. Isn't that right?---Again, as I have said before, it's difficult to get an informed decision from a patient when you're talking to them about these problems during labour itself and I don't know any labour ward that covers all of the potential problems that are likely to occur in labour to get informed consent beforehand. ...

At the time, let's say applying it to these circumstances, if you had the discussion at 5 o'clock when she was still at anterior lip, still at spines, she had had no epidural pain relief for an extended period, she was telling you that she was exhausted and that she didn't think she could go on, you suspected a large baby, wouldn't you at that time say, 'Look, do you want to continue? That's what I recommend we do, we wait another hour but the choice is for you. You can have a caesarean if you can't cope any longer"?---I think you're so close to the stage of getting to full dilation, I would be reinforcing the fact that I think we're going to get there.

I can understand you might be recommending that, but the option should be given?---That's not generally the way the labour wards would function in terms of the care which is being given by a consultant or a practitioner unless the cervix had been much less dilated."

37 The relevant factual context is as follows. The appellant's uncontradicted evidence was that she had attended antenatal classes at the hospital. The classes covered aspects of labour and delivery including assisted deliveries (with forceps and vacuum) as well as caesarean section. As the trial Judge found, to the respondent's knowledge the appellant wanted to have a natural (vaginal) delivery. She was also going to try to deliver the baby without an epidural block. The appellant knew that the respondent did not perform caesarean sections. At no material time during her pregnancy or her labour did the appellant inform the respondent or anyone at the hospital that she wanted to proceed by way of caesarean section.

38 The appellant complained of unrelenting pain from 4.30 pm although I note there was an epidural top up at that time. However the trial Judge, whilst accepting that the appellant was in very significant pain and distress, concluded that the appellant's "evidence of her pain levels was not substantiated as being exceptional by those medical staff with experience in the area". This conclusion is not challenged on appeal.

39 In support of the pleaded duty, the appellant relies by way of analogy on the duty to warn principle contained in a line of High Court decisions starting with Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479. The Rogers v Whitaker principle is that a medical practitioner has a duty of care to warn a patient of a material risk inherent in a proposed treatment. A risk may be objectively material or subjectively material. A risk is objectively material because a reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it. It is subjectively material if the doctor is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it (usually because of questions asked or reassurances sought). The Court criticised the phrase "informed consent" as apt to mislead.

40 In Rogers v Whitaker the court held that the Bolam principle (based on the decision of the House of Lords in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582) did not apply in Australia. The Bolam principle provides that a doctor is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion even though other doctors adopt a different practice. In short, the law imposes the duty of care; but the standard of care is a matter of medical judgment.

Under the Bolam rule the court is not the ultimate arbiter of the standard of care in medical negligence cases. The Bolam rule requires courts to defer to a responsible body of medical opinion.

41 However, evidence of professional medical practice and opinion remains relevant to the issue of whether there has been a breach of duty (Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 per Gleeson CJ at 439) but does not dictate the outcome. The modern duty to warn principles and the rejection of Bolam involve a departure from medical paternalism in favour of patient autonomy. As put by the High Court in Rogers v Whitaker (at 487):

" ... while evidence of acceptable medical practice is a useful guide for the courts, it is for the courts to adjudicate on what is the appropriate standard of care after giving weight to 'the paramount consideration that a person is entitled to make his own decisions about his life'."

The duty to warn will not apply, or its content may vary, in the event of a medical emergency or because of so-called "therapeutic privilege" in which event, the onus is on the doctor to prove that performance of the duty would be damaging to the particular patient. Further, the duty to warn is a specific manifestation of the single comprehensive duty on medical practitioners to exercise reasonable care and skill in the provision of professional advice and treatment which extends to examination, diagnosis, treatment and the provision of information in an appropriate case (Rogers v Whitaker at 483). It is proper to bear this in mind in light of the High Court's more recent warnings against formulating a duty of care in terms that are too specific: Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540.

42 On proper analysis, this is not a duty to warn case. The duty to warn relates to communicating relevant risks of adverse outcomes of proposed treatment (see also Chappel v Hart (1998) 195 CLR 232; Rosenberg v Percival (supra)). However, the appellant says that the policy of patient autonomy underlying the duty to warn gives rise in this case to a duty on the respondent to offer or inform the appellant during the course of labour of the option of a caesarean section. The formulation of the duty is too specific. It is necessary to step back and take a broader perspective starting with the High Court formulated duty on a medical practitioner to provide information to a patient in an appropriate case, mindful of the public policy in favour of patient autonomy. However, I accept as a general rule that in ordinary circumstances a medical practitioner owes a duty to advise his or her patient of the medical or treatment options available to achieve the relevant outcome. I acknowledge that a statement at this level of abstraction is of little assistance in answering the duty question in this case. I also accept that at least some of the principles developed in relation to the duty to warn would apply by way of analogy. In particular, the timing and content of any advice the subject of the duty will be affected by objective and subjective considerations.

43 It is important to clearly define the relevant factual parameters. There is no finding by the trial Judge that at 4.30 pm or at any other relevant time there was a medical emergency or that the defence of therapeutic privilege was available. I gather from the medical evidence that at some stage during labour conversion to a caesarean section would be contra-indicated and not a medical option. I do not understand that stage was reached by 4.30 pm or before full dilation. Certainly there is no finding to that effect.

44 On the issue of whether the respondent was under a relevant duty, I propose to start by addressing the relevance of the fact that at the material time a caesarean section was not medically necessary, indicated or desirable. This is a relevant negative factor in the sense that if it were otherwise there would (or may) be a duty to inform the patient of the situation. It may be seen as a positive factor as well in this way. There being no medical or clinical reason for a caesarean section, the medical practitioner would not recommend that course and would (of course) have to inform the patient of the risks of proceeding with a caesarean. In those circumstances, it is unlikely that a reasonable patient would do other than follow the medical practitioner's recommendation. On this scenario a caesarean section is not an objectively material option (to borrow from the duty to warn formulation) that requires communication to the patient. However, a similar proposition did not receive endorsement by the High Court in Rosenberg v Percival and is inconsistent with the public policy of giving paramountcy to the patient's right to make decisions. The trial Judge's approach was even more direct. He said that unless a medical practitioner intended to positively recommend a caesarean, there was no duty to inform a patient of the treatment option. Such a proposition is too broadly stated and is inconsistent with accepted principle.

45 However, although the trial Judge erred in his statement of principle, I am satisfied that he was correct in his conclusion that the alleged duty did not arise on the facts for the following reasons. After receipt of relevant information and discussion with the respondent in the antenatal phase, the appellant to the respondent's knowledge determined that she would deliver the baby naturally at least to the extent that was medically appropriate. The respondent managed the pregnancy and labour to that end. Nothing of medical significance happened in the course of the labour (at least until after the point of no return) that required the respondent to alter, or consider altering, the planned course of a vaginal delivery or that materially altered the risks of proceeding in that way. Matters of non medical significance are likely to be primarily (if not solely) relevant to whether subjective considerations activate a duty to inform. As I understand the evidence, there was no other significant matter of which the appellant was unaware. She was aware in general terms that the baby was big and of her ordeal, matters relied on by the appellant as triggering the duty. The appellant gave no indication that she wanted to change course or to discuss the option of doing so. Although the appellant was suffering significant pain and distress and was feeling exhausted, her situation was not exceptional by objective standards. On the facts there were no objective or subjective grounds for the respondent to revisit with the appellant during the course of labour the options available to the appellant for the delivery of her child.

46 For these reasons, the respondent did not owe the alleged duty to the respondent (or if a more general duty is relied on, there was no breach of that duty). However, there is an additional factor which, although not necessary or determinative, supports the conclusion of no duty. I deal with it separately because it may be regarded as going beyond existing authority, it having similarities with, but falling short of, a defence of therapeutic privilege. It is that the duty contended for arose at a time of significant maternal vulnerability as a result of the pain and distress being experienced with a likely adverse impact on decision making skills. I should make it clear that I go no further than saying it is a relevant factor in the context of there being no medical indication for a change of course.

48 There are two further complaints as to the adequacy of the trial Judge's reasons. The first relates to his finding on causation. On that issue the trial Judge said:

"Nor do I accept [the appellant's] evidence and submissions that, if offered a caesarean section during labour and was properly advised about that, she would have made an informed decision to do so. The [appellant] never herself raised the issue."

49 The trial Judge also referred at some length to the appellant's evidence on this subject. He said:

"She agreed in cross-examination that she understood vaginal delivery, if possible, to be better for the health of the baby than caesarean section and that caesarean sections are major procedures carrying significantly higher risks usually than vaginal delivery. She was, however, she said, unaware of some of the details of those risks. Notwithstanding that, and the fact that she chose vaginal delivery for the second birth, she says that had she known of the facts, she would, during the day of the birth, have chosen caesarean section because of her own pains and difficulties."

50 She could give no explanation for why she did not request a caesarean section at the relevant time. The following exchange then took place:

"But now you say you are sure that you would have had a caesarean?---If somebody had offered me a caesarean, I would have definitely considered a caesarean.

...

...

Nothing that you did in the afternoon indicates that there was any contemplation from you. Nothing that you said to the midwives is there anything that suggests that you were contemplating a caesarean section in the afternoon, is there?

---No, but they never offered it to me either."

51 The implication is that she regarded the offer of a caesarean as carrying some sort of medical imprimatur. The appellant's evidence on causation was not unequivocal. Further, the issue of causation is difficult where, as here, the question is a hypothetical one; that is, what would the appellant have done if she had been told of relevant matters. In such circumstances, objective factors are used as a counterweight to the recognised problem that most plaintiffs will genuinely and honestly believe that if the relevant information was provided they would have acted as they said: Chappel v Hart (supra) per McHugh J at 246.

52 It is the case that the Judge's reasons on the question of causation are extremely brief. Essentially he relies on the fact that the appellant did not herself raise the question as well as the fact that the appellant would have received relevant medical advice, which on the evidence, would have been a recommendation to continue with the vaginal delivery and identification of the material risks of a caesarean section. Having regard to the matters expressly relied on by the trial Judge in the light of the summary and extract of the appellant's evidence on causation, the reasons for rejecting the appellant's evidence satisfy the test of sufficiency. In any event, even if the reasons are deficient the outcome of the appeal would be unaffected, there being no relevant duty.

53 The second complaint concerns the trial Judge's treatment of the appellant's claim that the respondent had improperly refused to allow her a epidural top up prior to commencing the vacuum delivery. The complaint is that the trial Judge failed to deal with the claim at all.

54 The appellant's pleaded claim is that the respondent breached her duty of care to the appellant by refusing the appellant's request for an epidural top up at 7.30 pm prior to commencing the assisted delivery which refusal was said to be unreasonable. The baby was born 17 minutes later.

55 It is not correct that the trial Judge made no findings on this issue. He said:

"[Counsel for the appellant], in closing, as in evidence, also spent considerable effort to criticise the [respondent's] care on the issue of ... maternal distress during labour. For the reasons given, I accept the evidence of Professor Pepperell and Associate Professor Dickinson as to those issues. The related issues of ... epidural use and maternal distress during labour call for experienced judgment. I am not satisfied there was any breach of duty."

56 It was not in dispute that the request was made and refused. The respondent explained why she refused the request. She said she wanted the appellant to push with the vacuum in place.

57 Dr Pepperell inferred that the respondent did not give a top up because she wanted the appellant to push more effectively and epidural anaesthetics take away the patient's normal capacity to push. He continued:

"Under those circumstances, if she was able to cope with the fact that the epidural hadn't been topped up and coped with the difficulty of the pain problem of the actual process of the delivery, then that's ideal if she can push adequately without an epidural.

In terms of the time that would be involved in providing an effective top up, it would be - - -?---20 minutes."

On the other hand the administration of the epidural top up would cause delay in the actual delivery. Associate Professor Dickinson accepted that an effective epidural would not prevent a successful vaginal delivery but that the patient would need "help for direction" on pushing because there was loss of motor function. She was also asked about the appropriateness of an epidural top up and said:

"Okay. It would depend on what you perceive the immanency of delivery to be. If delivery is clearly some time off, then I would think it not unreasonable to provide the woman with appropriate pain relief. If the delivery is going to be within the next 15 minutes, then often with the help of your midwives you can encourage the woman to delivery [sic] her baby."

58 The trial Judge preferred the evidence of these expert witnesses and explained why. However, the issue is not whether the finding of no breach was open, it is whether the trial Judge's reasons are sufficient for the purpose of determining whether there was an appealable error. They are sufficient for that purpose. I would dismiss this ground of appeal.

Failure to Make Finding on Credit (ground 5)

59 There was a conflict of evidence as to what occurred in the final stages of the delivery of the baby. The issue was whether the respondent withdrew from active participation after the delivery of the baby's head leaving a midwife to deliver the baby. The matter was not relevant to any fact in issue. The appellant contends that the Judge was required to resolve the conflict because it was relevant to an assessment of the respondent's credit.

60 The respondent's evidence was that she delivered the head but there was no further progress so she did an internal investigation and found that the shoulders were stuck. She asked Nurse Bradshaw to apply supra pubic pressure while she, the respondent, rotated the shoulders and freed one of the shoulders from under a bone. She then heard a voice offering to help. That was Nurse McCready who applied downward traction to the baby and the body was delivered by Nurse McCready. According to the respondent, her freeing the shoulders and Nurse McCready's participation were in effect seamless.

61 Nurse McCready's recollection was different. She had left the room to call a specialist because she did not feel confident the respondent could deliver the baby with a vacuum. On her return, she was surprised to see the head had been delivered. She said the respondent was standing away from the appellant doing nothing so she took charge and delivered the baby, instructing Nurse Bradshaw to give supra pubic pressure. Nurse McCready said the shoulders were in the normal position and the baby delivered easily.

62 Nurse Bradshaw agreed that the respondent had requested her to apply supra pubic pressure while she, the respondent, was attempting to deliver the shoulders. However Nurse Bradshaw from her position could not see exactly what the respondent was doing. She said the respondent was standing back from the appellant when Nurse McCready re-entered the room and Nurse McCready completed the delivery of the baby. The appellant's evidence and that of her husband who was present at the birth was consistent with the midwives.

63 The trial Judge rejected the appellant's submission that he was required to make findings of fact on these matters. He said:

"As to the evidence of the two midwives, the issues do not arise - they are not parties and, as mentioned, no legal consequence flows from their evidence. In my view, the differences stem probably from misunderstandings and confusion and, given the passage of time, possibly memory issues also. It is not the case, in my view, that the differences of evidence reflect on either the truthfulness or the accuracy of the [respondent] (both of which, in any event, I accept) or, for that matter, the truthfulness of the [appellant]."

64 He also noted that the events were deeply traumatic for the appellant and her husband. The weight of the evidence is that the respondent rotated and freed the shoulders and Nurse McCready then delivered the baby, but that it was not done as a seamless transition with both in effect participating in the process. However, the trial Judge makes it clear that even if he did not accept the respondent's evidence on this point, it would not affect his assessment of her credibility and reliability generally. That conclusion was open and reasonable. It was a highly charged, emotional and traumatic time for everyone in particular the respondent who was aware of the precise nature of the problem and its potential adverse consequences. As the resolution of the conflict was not necessary for the determination of any fact in issue and, even if resolved against the respondent, would not have materially affected her general credibility or reliability, the Judge did not err in refraining from making findings on this issue. I would dismiss this ground of appeal.

65 This ground relates to comments made by the trial Judge during the course of closing submissions. It is said they disclose an appearance of bias. The test to be applied in Australia in determining whether a Judge is disqualified by reason of the appearance of bias is whether a fair-minded lay observer might reasonably apprehend that the Judge might not bring an impartial and unprejudiced mind to the resolution of the question the Judge is required to decide: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [11].

66 Although not expressly stated, it seems the apprehension of bias takes the form of prejudgment. The appellant does not rely on anything in the reasons for judgment (delivered some seven months later) in support of this ground.

67 It is said that the exchange between counsel for the appellant and the trial Judge, in the course of the appellant's closing submissions, demonstrated that the trial Judge did not bring an impartial unprejudiced mind to the questions whether the appellant should have been offered a caesarean section and, if the offer had been made, whether she would have chosen to change course and have a caesarean section.

68 Reliance is placed on the following exchanges. The appellant's counsel had made a submission that it could not be an appropriate legal position for a medical practitioner to make a decision about continuing with a vaginal delivery without reference to the patient. The Judge said:

"There comes a point at which it's simply academic, doesn't there? There comes a point at which the medical risks are so great that there can only be one answer and where the condition of the patient is such that they're not in a position to have an informed discussion and give proper consent anyway. My wife once, after giving birth and having returned to the ward, had to be offered emergency surgery in the middle of the night and I was rung by King Edward Hospital to ask whether I consented. What a stupid law it would be if I had the right to say no. Of course I consented. 'You're the doctor. If she needs emergency treatment, get on with it.'

The evidence in this case is that you get to a point - and somebody might help me with where the point was in chronological time - where whatever the patient right to choose to be informed is, its just academic. The medical evidence points in one direction, even though as a matter of philosophy it might point in opposite - there might be a possibility in opposite directions and the patient is not in a position to know. Patients simply in those situations are not in a position to know. You can theoretically have a discussion until you're blue in the face, by which time the baby has died or some other point of crisis has been reached. I just reject the proposition that the law is as silly as you've tried to make it out.

COUNSEL: Your Honour, if we can talk about the position.

JUDGE: I don't want people to leave the court thinking that's the law. It's not the law.

COUNSEL: Your Honour, you will get an opportunity to make your decision in this case.

JUDGE: I certainly will."

69 Thereafter counsel was making submissions on the legal principles relating to causation. The following exchange took place. The Judge says:

"Surely a reasonable person would be guided by their medical advisers.

COUNSEL: Well, not in the sense of - - -

JUDGE: Quite reasonable people do.

COUNSEL: Not in the sense of, 'Whatever recommendation the medical practitioner makes, I will go along with.'

JUDGE: Are you suggesting to me that if a woman is told, 'Given the situation we're in now, I recommend this,' that the reasonably patient says, 'Well, I want that.' That would be an indicator of unreasonableness, I would have thought.

...

COUNSEL: The conversation needs to involve more than a medical practitioner simply saying, 'My recommendation is X.'

JUDGE: But in the end that's what it has got to come down to. A medical practitioner can't say, 'Well, there's 25 factors here and there's 38 factors there, here's a 20 cent coin, toss it up and see what comes down.' The patient says, 'Well, what do you think?' and when the medical practitioner says what they think, the patient, if they're reasonable, says, 'Right.' That's what reasonable people do. If I go to the garage with my car and I have selected a competent and honest garage man and I ask him what's wrong with the engine and he says, 'Well, you can't take it any further because it will break down,' I don't say, 'Well, that's bad, I'm going to drive across the Nullarbor.' I say, 'Well, fix it.'

COUNSEL: Your Honour, with respect, the comments you have just made are not in keeping with Roger v Whitaker.

JUDGE: Well, you have said that but I just don't know that's true.

COUNSEL: In Rogers v Whitaker - - -

JUDGE: But we're not talking about a case in advance of the treatment. We're not talking about a woman who has been - Rogers v Whitaker isn't about people who have been hours in labour and who are on the point of giving birth to a very large baby.

COUNSEL: Your Honour, I would submit that the principle is the same; that it is a matter of what the patient would do. The patient has a right - - -

JUDGE: You're asking me to accept that if there had been a debate about the various medical factors one way or another and the doctor did - whether or not the doctor did or didn't make a recommendation, that at that point the plaintiff would have said, 'I want a vaginal delivery'.

COUNSEL: A caesarean section you mean?

JUDGE: A caesarean section, regardless of the medical advice she got."

70 Subsequently the Judge raised with counsel the matter of the appellant's failure to raise the question of a caesarean section with, for example, the midwives. The Judge said:

"If the woman had said, 'Look, I've had enough. I'm exercising my inherent human right to make decisions about my own bodily integrity. I demand a caesarean section,' don't you think they (the midwives) would have passed that on? Was that question ever raised? Has that been the subject of evidence?"

71 Thus, the apprehended bias claim is based on statements made by the trial Judge at the very end of the trial after all the evidence has been adduced, which statements disclose his thinking on various aspects of the submissions being advanced on behalf of the appellant. It is no longer the case that judicial silence is a counsel of perfection. As stated by the High Court in Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 at 571:

"It seems to us that a trial judge who made necessary rulings but otherwise sat completely silent throughout a non-jury trial with the result that his or her views about the issues, problems and technical difficulties involved in the case remained unknown until they emerged as final conclusions in his or her judgment would not represent a model to be emulated."

72 By this stage of the trial it is to be expected that a Judge would have formed views, some firm and others of different strengths, on the issues that have arisen for determination. If such were not permitted, the giving of an ex tempore judgment would invariably give rise to a reasonable apprehension of bias. In Kaycliff v Australian Broadcasting Tribunal (1989) 90 ALR 310 the Full Federal Court said (at 317):

"It is said of Jessel MR that he never reserved judgment, except at the insistence of colleagues when sitting on the Court of Appeal: ... Judges who demonstrate an ability to decide complex cases at the very end of the hearing can do so only because they have worked the problems out and form conclusions, subject always to the possibility of their being changed by further evidence or argument, as they go along."

73 If it is appropriate to have such views at the end of a trial, it cannot give rise to an apprehended bias claim to disclose them to counsel for their comment. In large measure the statements made by the trial Judge were, as appears from their context, to test the propositions put by the appellant's counsel. Many were expressed as a preliminary view. He went further when discussing the time at which a person's right to choose to be informed might become "academic". The trial Judge stated his unshakeable view at this stage. However, it was in the course of seeking

to test the outer limits of the appellant's unqualified proposition that a patient should be informed of options. That he did so by reference to a personal factual scenario is of no consequence. Further, I do not understand the trial Judge to be saying that he did not intend to apply the law. Rather, he is intending to state his understanding of what the law is. There is a significant difference.

74 It is not a model course of conduct to appear to reject legal or factual contentions out of hand or to ridicule propositions, as the trial Judge appears to do in his reference to the inherent human right to bodily integrity. However, the trial Judge's robust statement of views on relevant issues of law and fact in the course of the exchange with counsel during closing submissions does not provide a basis for a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the determination of the case.

75 Further, as no objection was taken by the appellant at the time to the trial Judge continuing and there being no complaint that the judgment reflected partiality or prejudice, there is substance in the respondent's claim of waiver: Vakauta v Kelly at 572. However, as I would not uphold the bias claim it is unnecessary to decide this issue.

77 EM HEENAN J: After a trial lasting six days in the District Court of Western Australia his Honour Judge H H Jackson dismissed the appellant's action for damages for personal injuries claimed to have been suffered as a result of the alleged negligence or breach of duty by the respondent in the management of the pregnancy, and in particular, in the conduct of the delivery of her first child at St John of God Hospital, Murdoch ("SJGH Murdoch") on 9 August 1998. The learned trial Judge also decided not to make any provisional assessment of damages. From that decision Mrs Sheppard has appealed to this Court seeking orders that the judgment dismissing her claim should be set aside and that her action should be remitted for re-trial before a different Judge or, alternatively, that there should be judgment in her favour for damages in an amount to be determined by this Court.

78 The respondent is a general medical practitioner who, at the material times, also conducted a practice in obstetrics, including the supervision of women's labour and the delivery of their babies in cases which were thought unlikely to require or result in caesarean section delivery. For more complicated cases where there was a risk of caesarean section

delivery being required, or in situations where it was unexpectedly indicated, it was her practice to call in a consultant obstetrician to assist or take over the conduct of the labour and delivery.

79 During the course of the appellant's pregnancy there was reason to believe that she was carrying a large foetus. This was due to her large weight gain. Steps were taken to examine her and consider this possibility because, as the respondent openly acknowledged, if the baby was unusually large and likely to require a caesarean section delivery she would hand over the conduct of the labour and the delivery to a consultant. The steps taken in this regard, including a consultation with a specialist consultant Dr Hugo, gave rise to controversy at the trial and at the hearing of this appeal and these will be examined in due course. At this point it is enough to say that the steps which were taken to investigate the size of the baby suggested that, while the foetus was large, it was expected that a normal vaginal delivery could proceed without complications and, in particular, without the need for a caesarean section.

80 In the event difficulties were experienced in the delivery. Dr Swan had to use vacuum extraction to deliver the foetal head and then experienced a problem with shoulder dystocia. The assistance of midwives was needed to reposition the appellant, palpate the abdomen and manually rotate the foetus to overcome the shoulder obstruction. A male child was born at 1947 hours, weighing 5365 grams (11 lbs 13oz).

81 The partogram and other medical records in evidence show that at birth the baby was blue, had no respiratory effort and was very floppy. He was ventilated by bag and mask for two minutes before he showed any spontaneous respiratory effort. His Apgar scores at one minute, three minutes and five minutes were 3, 5 and 7 respectively and there was a marked haematoma (cephalohaematoma) in the region where the vacuum extraction cup was applied. Fortunately, the baby's heart rate was good, being about 100 beats per minute (bpm) from birth. The child showed some reflex activity and his colour in the face and chest improved by three minutes. Dr B Clements, a paediatrician who later advised on his condition, reported that the young baby remained irritable for one to two days before settling down well. He displayed a slight reduction of movement of the right shoulder initially but this resolved within a couple of days. The young baby subsequently did well, breast fed well and was discharged home on day six gaining weight well. At seven weeks after birth he weighed 6.8 kilograms - an increase of 1.5 kilograms since birth and other milestones were progressing normally. At that point full physical and neurological examination was completely normal. Subsequent neurological examinations have been normal and the evidence at trial was that subsequent progress had been good.

82 At 5.36 kilograms at birth this baby was very large - a macrosomic foetus. All the expert obstetric opinion was to this effect. Associate Professor Jan Dickinson, in a report of 1 June 2002, wrote that foetal macrosomia was usually defined as birthweight greater than 4000 grams or a birth weight greater than the 90th percentile for gestational age. She confirmed that it was possible to delivery macrosomic foetuses via spontaneous vaginal delivery but that this was uncommon for birthweight exceeding 5000 grams. She also wrote that with macrosomia there is an increase in labour abnormalities such as dystocia, failed operative vaginal delivery and shoulder dystocia. Nevertheless, a large baby can sometimes be delivered naturally depending upon the size of the maternal birth canal and pelvis but this may often be occasioned with significant moulding of the foetal head and complications such as dystocia or damage to maternal tissues or vascular or neurological functions in the pelvic area.

83 The term "cephalopelvic disproportion" is used in various ways to define an unfavourable relationship between the foetal head size and the maternal pelvic dimensions rendering it impossible for the foetus to deliver vaginally, although in modern obstetrics the term is used in a less rigid sense and is often combined with the term "failure to progress". Because it is not common to be able to make a diagnosis of cephalopelvic disproportion with certainty in the antenatal period it is often the case that the attending medical practitioner will embark on a trial of labour in order to see whether the foetus is able to descend the initial stage of the birth canal and, if so, may proceed to a normal delivery. However, if the disproportion between the foetal head size and the maternal pelvic dimensions renders it impossible for the foetus to deliver vaginally, caesarean section is the only available therapeutic option in modern obstetrics.

84 Accordingly, the real issue in this case must surely be whether or not there were indications in the antenatal period, or in the course of labour, which showed that it would be negligent to proceed to a vaginal delivery or which meant that reasonable care of the appellant required that there should have been intervention to deliver the baby by caesarean section at some point while that was still a possibility.

85 That raises the question of whether or not there should have been a decision to undertake a caesarean section delivery before embarking on a trial at natural delivery or whether, after the appellant had been in labour for some hours and progress was slow, a decision should have been taken to undertake caesarean delivery. At the trial and at the hearing of the appeal the appellant also raised an issue of whether or not the respondent was in breach of a duty of care to the appellant in failing, during the course of the labour once difficulties had been encountered, to explain the circumstances and offer the mother the option of caesarean delivery notwithstanding that the respondent herself did not consider that this was clinically required.

86 That question has given rise to derivative questions concerning the extent of the obligation of a doctor in such circumstances to explain clinical procedures and options to a patient, the appropriateness of doing so while in the midst of a difficult labour, and the capacity of a patient to absorb such advice and make a reasonable decision on her own behalf, while under the effects of anaesthetic and experiencing great pain and discomfort. It has also produced the so-called issue of "causation", a term in this context of considerable imprecision, which produces the further question of whether or not, if offered an explanation about the possibility of a caesarean section delivery at stages in the labour where difficulties had been encountered, the appellant would have elected in favour of that option and demanded a caesarean section delivery even where this may not have been recommended, or even favoured, by the attending doctor who had the responsibility for assessing and directing the course of delivery.

87 Throughout the labour the appellant had been receiving epidural anaesthesia (Marcain) in varying doses from 10 am (1000 hrs) on the morning of 9 August 1998. When it became necessary to intervene in the delivery, that is to undertake the vacuum extraction, the respondent had to perform an episiotomy. A local anaesthetic was injected in the region but had not taken full effect by the time the incision was made. Shortly after the delivery the appellant suffered a post-partum haemorrhage of approximately 1200 mls. As a result of this difficult delivery the plaintiff developed urinary stress incontinence and in January 2002 underwent surgery for vaginal prolapse and incontinence, following which she had persistent urinary tract infections for some time which are not unusual following such surgery. She has also experienced distress, grief and other emotional symptoms. Fortunately, she has made an excellent recovery after treatment and the infections have settled. She has since successfully given birth to a second child by a normal vaginal delivery.

88 Significantly, none of the expert evidence at trial, coming as it did from three very highly qualified and experienced consultant obstetricians, suggested that there was a lack of care in the management of this delivery through failing to undertake a caesarean section delivery, either at the commencement of labour or later in the course of labour when various difficulties were encountered. On the issue of cephalopelvic disproportion the evidence of the appellant's consultant, Professor E V Mackay FRCSE, FRACOG, FRCOG, was to the effect that this had not been diagnosed and that, accordingly, the course of the labour had not been well managed particularly with regard to the use of high dosages of Syntocinon, a drug used to stimulate maternal contractions, with the result that the foetus became stressed during the course of labour by the frequency and duration of the enhanced contractile pattern. In his report of 1 May 2000 Prof Mackay expressed the view that by mid-afternoon on 9 August 1998, that is after 1300 hours, or 1500 hours, in view of the lack of progress at that stage, steps should have been taken to recommend a caesarean section. However, when giving evidence Prof Mackay acknowledged, under cross-examination, that there was no clinical indication that gave rise to a requirement, in the interests of a baby, for an immediate caesarean section (1 AB 269B). He confirmed that there was no feature of the labour, based on the partogram, that required an immediate caesarean section, although he made the point that the interests of the baby were not the sole consideration and that the pain and discomfort being experienced by the mother should have prompted the attending doctor to offer her the option of a caesarean section.

89 Associate Professor Jan Dickinson MD, FRACOG, expressed the view that there had clearly been concern antenatally about the capacity of Mrs Sheppard to deliver her large baby normally but that antenatal investigations directed at this question had been reassuring. She went on to emphasise that the foetal head had been well engaged at the commencement of the induction and labour and that, in the result, the birth of the child by normal delivery, notwithstanding that it was accompanied by complications, dystocia and some maternal internal injury, was demonstration in itself that vaginal delivery in this case was possible. Professor Roger James Pepperell MD, FRACP, FRCOG, FRACOG, in a report of 23 July 2002, addressing the same issue, wrote:

"With knowledge, in hindsight, of the exact size of the baby, any Obstetrician would have been concerned about delivering her vaginally, because of the increased risk of shoulder dystocia, even if the head can be delivered. As it is not possible to adequately assess the exact size of the fetus prior to measuring it on the scales after delivery, it is not possible for Obstetricians to always make the right decision concerning the mode of delivery, and one therefore depends on the progress of labour in making the decisions that were made. From my reading of the documentation, I do not believe wrong decisions were made."

90 The antenatal history is itself quite significant. This was the appellant's first pregnancy and the appellant attended the respondent for antenatal care between 24 November 1997 and 7 August 1998 (15 visits). It is clear that she gained an excessive amount of weight during the pregnancy and that the respondent was concerned about the size of the baby. The recorded observations showed the change in maternal weight from 59 kg (41/2 weeks) to 81 kg (37 weeks), a gain of 22 kg - well above the normal range. After the 37th week the weight dropped 1 kg and remained constant until the onset of labour. Ultrasound examinations had been performed in the first half of the pregnancy but were not done thereafter. The appellant was admitted to SJGH Murdoch on 4 August 1998 for a CTG recording which, at first, was non-reactive. A CTG was again performed in the mid-afternoon and was seen to be reactive and the appellant was discharged that afternoon with the CTG to be repeated a few days later and for her to be induced that coming Friday. For a consultation with the respondent on 7 August 1998 (the last antenatal visit), there is a note in the respondent's records: "? big baby? PG induction". A hospital progress note on 8 August 1998 records that on palpation the recorder felt a large baby. In fact contractions commenced late on the evening of 8 August 1998 followed by admission to SJOG Murdoch. The appellant's membranes were ruptured on the morning of 9 August 1998 when she was seven days overdue and in early labour.

91 During the admission to SJGH on 4 August 1998 for the CTG examinations the respondent said that she took the opportunity to ask a consultant obstetrician, Dr Hugo, who happened to be on the ward at the time, to examine the appellant because, at that stage, the CTG tracing was abnormal and the patient had a big baby. According to the respondent, the purpose of the examination included consideration of whether or not the appellant should have a specialist attend her for the delivery rather than the respondent. According to the respondent, Dr Hugo agreed to undertake the examination, came to the labour ward and conducted a supra pubic and vaginal examination, after which he said that the baby was about 8 lbs 5 and "It's just going to fall out. I had one the other week and it will just fall out ... ". Dr Hugo recommended against inducing labour for the appellant at that point and instead recommended that the CTG trace be repeated and that she be sent home. This reassured Dr Swan who had been wanting to induce the appellant at that point. The conclusion also was welcomed by the appellant. In her reliance upon this assessment of Dr Hugo, the respondent continued with the management of the pregnancy and the labour and proceeded to a vaginal delivery after the induction on the morning of 9 August 1998. That Dr Hugo's optimistic forecast about the ability of Mrs Sheppard to deliver her baby without difficulty proved to be misplaced by subsequent events is most unfortunate. However, that was the advice which Dr Swan received at the time from a specialist whose opinion Dr Swan could be expected to accept and rely upon in the circumstances then prevailing.

92 At the trial there was controversy over whether or not Dr Hugo had conducted an examination such as the respondent described and, in particular, whether he had said words to the effect that the baby "would just fall out" or that it was 8 lbs 5 or gave any other indication of estimated weight. Dr Hugo was called, and could remember the incident at SJGH Murdoch but had no recollection of the detail. He acknowledged that the expression that the baby would "fall out" was a phrase that he had used and might use in such a situation but otherwise was unable to give any description of the event. He had made no note of his examination of the appellant nor had he raised any account for the consultation. That there was some advice from Dr Hugo on 4 August 1998 is confirmed by a hospital progress note recorded that day.

93 The learned trial Judge made a positive finding, in reliance upon the evidence of the respondent which he fully accepted, that such a consultation had taken place. The significance of this finding was that it led to the conclusion that while the proposed management of the appellant's labour would be a matter for concern for any attending medical practitioner because of signs of the large size of the foetus, those concerns called for, and were properly and sufficiently addressed by, the respondent seeking a consultant's opinion upon whether or not the delivery could probably be effected normally and upon whether or not management of the care of the patient should be handed over to a consultant. By finding that the respondent had followed this course and received reassuring advice from Dr Hugo, the learned trial Judge was satisfied that there was no lack of care by the respondent proceeding to manage the delivery herself in anticipation that, while a large baby was involved, there was no reason to expect that a normal natural delivery could not readily be effected.

94 The appellant advanced a series of alleged breaches by the respondent of a duty of care and/or negligence in the pleadings. These allegations are somewhat discursive and the evidence at the trial ranged beyond them. I consider, however, that it is possible to condense the allegations of significance, in the light of the issues addressed by the evidence at trial, in the following summary:

(a) a failure to identify cephalopelvic disproportion prior to 1430 hours on 9 August 1998, the day of the delivery;

(b) a failure, during the course of antenatal management, to conduct examinations, including ultrasound examinations, which would have indicated the potential for cephalopelvic disproportion during labour;

(c) a failure to recognise and sufficiently address abnormal lack of progress in the course of the labour from the time of induction until 1320 hours and an associated failure to seek consultant advice upon that lack of progress;

(d) a failure to recommend elective caesarean section delivery at about 1430 hours or, alternatively, 1630 hours or upon observance of foetal tachycardia after 1810 hours;

(e) the use of excessive Syntocinon leading to uterine hyper stimulation and foetal stress;

(f) a refusal to give top-up epidural anaesthesia and the performance of an episiotomy incision before local anaesthesia took effect.

95 As already indicated, the learned trial Judge found that attention had been directed to the possibility of complications arising from the size of the foetus carried by the respondent in the days before labour was induced and, in particular, that the consultation with Dr Hugo had sufficiently addressed this potential and had been reassuring. There was much evidence to the effect that there was considerable difficulty in estimating foetal weight antenatally and that ultrasound investigations were unreliable in this respect. The expert evidence accepted by the learned trial Judge was to the effect that antenatal estimates of foetal weight had a range of error of up to 20 per cent and that even if there was a large foetus this did not mean that there would be cephalopelvic disproportion or a necessity for caesarean section delivery.

96 The evidence at trial canvassed in detail the slow rate of progress in the appellant achieving full cervical dilatation. There was 2 to 3 cms of dilatation at 0700 hours when induction was effected and the first Syntocinon drip commenced. From then on the rate of dilatation was satisfactory until 1430 hours (9 cms), after which progress slowed considerably to the extent of being abnormal, with full dilatation not being achieved until 1800 hours. Similarly, the descent of the foetus was slow, not changing from minus one between 0915 and 1320, reaching zero (the ischial spines) at 1430 when, of course, the respondent was still not fully dilated.

97 Aware of this slow rate of progress the respondent had ordered increasing doses of Syntocinon from 1200 hours until delivery and it seems clear that this was producing stronger, longer and more frequent contractions so that the reduced period between the contractions, and their greater frequency, left less time for the foetus to recover from the stress of contractions. However, the resulting observations of elevated foetal heart rate were not regarded as unduly worrying and certainly not as indicative of any need for intervention to effect a caesarean section delivery. That remained the uncontested opinion of all three expert obstetricians in evidence at the trial.

98 Clearly, the descent of the foetus along the birth canal was slow with little, if any, progress occurring from 1430 hours to 1800 hours, but it must be appreciated that vaginal delivery could not occur until the cervix was fully dilated and that this position was not reached until 1800 hours. It was during this period that the larger doses of Syntocinon were being delivered and, given the slow progress, it is not surprising that this effort to stimulate contractions was being pursued. While the Syntocinon dosages may have been high they were not beyond an acceptable range and the foetal condition was being constantly monitored. The tachycardia was recognised and reported to Dr Swan during the course of the afternoon and the respondent called at the hospital at about 1700 hours, examined the CTG trace and remained at the hospital as the labour progressed.

99 Essentially, the appellant's case was that by mid-afternoon with the lack of progress in the labour the respondent should have called in a consultant obstetrician and/or offered the appellant the option of a caesarean section delivery, possibly more for the care and protection of the mother than of the baby. By contrast the expert evidence for the respondent, from Associate Professor Dickinson and Professor Pepperell, was to the effect that it was appropriate to proceed with the natural delivery and that as the baby's head slowly descended below the spines this was an indication that there had not been an arrest of descent and that natural delivery would be possible. Later events demonstrated this to be the case because the descent did proceed, admittedly slowly and after significant delays, but this stage of the labour was not unduly prolonged for a first birth.

100 When addressing these issues in his report Professor Pepperell wrote:

"Once the cervix started to dilate, after 1110 hours, the progress was satisfactory. In fact a dilatation of 4 cms between 1320 and 1430 hours is suggestive that the pelvic examination findings at 1430 hours might have over estimated the cervical dilatation. Usually, progress in labour is at about 1 cm per hour.

From then until full dilatation was achieved three and a half hours later, there was slow progress and little progress had been seen at 1530 and 1630 hours. Pelvic examinations at those times were performed by nursing staff members, and it would not have been normal for the medical staff to have repeated the pelvic examination until about 1630 hours to give one hour for full cervical dilatation, and a further hour to see whether there was any descent. The fact that pelvic examination had been performed by nursing staff presumably was taken into account by Dr Swan in that she did not repeat the examination until 1800 hours, when the cervix was found to be fully dilated. She was then given almost 90 minutes to see whether the head would descend further before an instrumental delivery was planned."

"Certainly an instrumental mode of delivery was appropriate when the head was not delivered, but was clearly engaged, and 90 minutes after full cervical dilatation had been achieved. Under those circumstances either vacuum extraction, or forceps delivery, could have been performed."

Having regard to the progress in labour, although slow between 1430 and 1630 and slow again between 1630 and 1800, the expert consultants were of the opinion that it was appropriate to let the delivery proceed, certainly in the absence of any signs of significant foetal distress. The second stage of labour was not long and it was considered appropriate to perform a vacuum extraction from about 1930 hours onwards, as was done. On this evidence the learned trial Judge held that there was no lack of reasonable care shown against the respondent by the failure to intervene and either recommend or conduct a caesarean section delivery after 1430 hours. There was undoubtedly evidence to support that finding.

101 It is in this context that the allegations against the respondent of failure to identify or address an abnormal lack of progress or descent of the foetus and a failure to obtain consultant advice in this regard must be considered. Throughout this period Dr Swan was acting in the belief that a normal vaginal delivery was appropriate and no doubt was acting in reliance upon the advice given in this regard by Dr Hugo five days before. While mindful that the baby was large and alert to the possibility that signs of cephalopelvic disproportion might yet appear Dr Swan continued to manage the delivery in an orthodox fashion and, within an acceptable timeframe, observed the attainment of full dilatation and further descent of the foetal head. The move towards vacuum extraction was appropriate in the circumstances and it is not suggested that this was delayed.

102 Throughout the duration of her management of Mrs Sheppard's pregnancy the respondent made it apparent that she was always ready and willing to call in or hand over to a consultant obstetrician if the appellant ever desired this or if circumstances so warranted. This was undoubtedly her position at the consultation on 4 August 1998. That this also remained her position during the latter stages of labour is confirmed by the following progress notes made during labour on 9 August, namely:

"1810 - Dr Swan advised that Dr Hugo was present in BS [birth suite]. Dr Swan happy for Tammy to commence pushing without Dr Hugo's consultation. No sensation or urge to push. Requesting top-up, refused by Dr Swan.

1915 Dr Swan present - advised that no descent of head with pushing - encouraged by Dr Swan to continue pushing. PT [patient] asking for top-up - refused by Dr Swan.

1930 vacuum applied - posterior cup. Encouraged to push with contractions. FHR [fetal heart rate] about 60/per minute with contractions.

Dr Hugo informed that delivery progressing slowly, on his way in.

1940, head delivered, vacuum released. Dr Hugo to be rung to advise no longer required as requested by Dr Swan. Shoulders attempted to be delivered. Dr Swan unable to deliver shoulders in 2 contractions. Assistance given and shoulders delivered 1947."

103 Clearly, Dr Swan had refused to top up the epidural anaesthesia which the appellant had received when asked to do so from 1810 hours onwards. The obstetric epidural chart shows that 5 ml doses of Marcain were given at 1000, 1125 and 1200 hours; that a 7 ml dose was given at 1310, a 3 ml dose at 1340 and a 10 ml dose at 1645 (another 10 ml dose was given at 2010 after delivery). An antenatal request from the appellant had been recorded on 2 July 1998 that she did not want epidural anaesthesia or an episiotomy but, clearly as this labour progressed, such anaesthesia was appropriate. The reason for not giving further epidural anaesthesia after the 10 ml dose at 1645 hours was that the respondent desired the mother to assist in the birth process by pushing down on the foetus as much as possible and that further anaesthesia would disable or diminish her capacity to push. This is undoubtedly a clinical decision made having regard to the exigencies of the situation and there is no medical evidence to suggest that it was wrong or unreasonable, let alone careless, and that must be taken to be the finding of the learned trial Judge.

104 Similarly, the learned trial Judge declined to make any finding of breach of duty or negligence arising from the fact that the episiotomy incision was made before the recently applied local anaesthesia could take full effect. Once the vacuum cup was applied at 1930 it was obviously desirable to move to effect delivery as quickly as possible. It is significant that the only recorded episode of fetal bradycardia (60 bpm) was recorded at this point and plainly the need for delivery was then present. There has been no criticism from any of the expert obstetricians about the manner or timing of the episiotomy in these circumstances and the learned trial Judge's decision must also be taken as a rejection of the allegation of negligence or breach of duty in this respect.

105 This leaves the allegation made on behalf of the appellant at trial that, notwithstanding the absence of any clinical need for a caesarean section delivery from 1430 hours onwards, proper performance of the duty of care owed by the respondent to her patient meant that the option of a caesarean section should have been offered either then or at about 1630 hours because of the lack of progress and the discomfort being experienced by the mother. The evidence of Professor Pepperell on this issue, dealing with the period from 1630 hours onwards is to be found in his report of 22 October 2002 as follows:

"I do not believe caesarean section needed to be offered to her at that point in time as waiting to see whether the cervix was going to reach full dilatation was important and the CTG was not abnormal enough to warrant a decision made concerning another method of delivery prior to full cervical dilatation."

This needs to be considered in conjunction with the other evidence that full cervical dilatation was not achieved until 1800 hours and that it was reasonable to wait for a further 90 minutes after that to see if there was progress in the descent of the head before moving to another option. As there was movement it was considered appropriate to proceed to vacuum extraction at that later point. The learned trial Judge dealt with this issue in par [144] of his reasons and said:

"[Counsel for the plaintiff] argues that, by 4.30 pm on the day of labour and thereafter, the issue should have been discussed with the plaintiff and a decision left to her, in the light of that, to give informed consent as to whether to have a caesarean section. My view of the expert evidence is that it establishes that no such recommendation was called for. In my view, to suppose that informed decision making could, and indeed should, be properly left to the plaintiff in the absence of such a recommendation, is not established. Again, however, questions of causation and loss would arise even if my view on that was to be in error."

I consider that this should be taken as indicating that his Honour was satisfied that, rather than the expert evidence indicating that the option of a caesarean section delivery could or should have been discussed with the appellant at that point, it was to the effect that there was no occasion for such an initiative to be entertained and that, further, his Honour was of the opinion that it was singularly inappropriate for such an option to be put to this patient in the middle of this difficult delivery. Of course the appellant's expert, Professor Mackay was of the view that the possibility of a caesarean section or the calling in of a consultant should have been discussed with the appellant from about that time but the learned trial Judge preferred the opinions of Associate Professor Dickinson and Professor Pepperell on that point. This issue was raised again in this appeal.

106 With respect, I do not consider it necessary to examine in more detail other allegations of negligence made by the appellant in the course of the trial or the decision upon them by the learned trial Judge. The case against the respondent needs to be addressed, having regard to the choices and opportunities for a different mode of treatment or response to developing situations which were realistically available in the course of this labour. The choices were relatively few as the evidence of Associate Professor Dickinson demonstrates. Whichever way the position is viewed, the appellant's case eventually comes down to contentions that there was a negligent failure to diagnose cephalopelvic disproportion at an antenatal stage which continued throughout the management of the delivery; that a consultant obstetrician should have been called in, sooner or later, to take over the management of the delivery, and that the situation called for a caesarean section delivery to be either performed or offered. There are subsidiary allegations that there was lack of care in the conduct of delivery in the management of the Syntocinon regime, in failing to respond to the tachycardia recorded on the CTG trace from 1640 onwards and in the analgesic regime comprising epidural anaesthesia and local anaesthesia from 1800 hours onwards. But, as the reasons for that course of management were all directed towards accomplishing progress towards a vaginal delivery, those allegations merge into the major contentions about the failure to call in a consultant to effect a caesarean delivery.

107 The complexity and detail of the grounds of appeal follow those of the statement of claim. Yet again, in my view, it is possible to distil the substance of the grounds into following contentions:

(a) the trial Judge was wrong in finding that the respondent had obtained consultant opinion from Dr Hugo on 4 August 1998 to the effect that the appellant could be delivered of her foetus by vaginal delivery without complications and that it was appropriate for the respondent to manage the delivery rather than referring the appellant to a specialist obstetrician;

(b) the trial Judge erred in concluding that the respondent was not under any duty of care to the appellant to explain the option and offer the availability of a caesarean section delivery from about 1630 hours or thereabouts onwards;

(c) the trial Judge erred in failing to give any adequate or proper reasons for decision for certain designated findings;

(d) the learned trial Judge erred in declining to make findings on disputed evidence about the level of involvement of the respondent in the final stages of delivery, that is in overcoming the problem presented by shoulder dystocia, when findings on that issue were essential for the resolution of vital issues of credibility in the action;

(e) the learned trial Judge engaged in exchanges with counsel during the course of the closing address of such a nature that a fair-minded observer might reasonably have apprehended that there was a possibility that the trial Judge did not bring an impartial and unprejudiced mind to the resolution of the appellant's claim.

I appreciate that, in making this summary, I have combined several of the grounds of appeal as well as abbreviating many of them but, I hope, without any reduction in the overall significance of those grounds.

108 I propose to deal first, and briefly, with the last three areas of the grounds of appeal as I have summarised them, namely the allegation of error in failing to give adequate reasons for decision; error in failing to make findings of fact about the events taking place when the delay in complete delivery caused by the shoulder dystocia occurred, and the allegation of apprehended bias. I do not consider that any of these three grounds of appeal is made out, and in that regard, I agree with and adopt the reasons given by McLure J when dealing with those issues.

109 Next, there are the findings by the learned trial Judge that Dr Swan had arranged for Dr Hugo to examine the appellant at SJGH Murdoch on 4 August 1998, that he did so and afterwards consulted with Dr Swan advising her that, in effect, it would be entirely appropriate to proceed to a vaginal delivery in this case notwithstanding what was thought to be a big baby, that the foetus would deliver easily and that there was no need for the respondent to hand over the management of the delivery to him or to another consultant. I have already pointed out that there was evidence at the trial to support such a finding. Earlier in these reasons I have also pointed out passages in the contemporary hospital notes which demonstrate that Dr Swan remained ready and willing to call in and to hand over to Dr Hugo if the situation required this and that this course was indeed contemplated and possible from about 1800 hours until eventual delivery at 1947 hours on 9 August 1998.

110 The learned trial Judge was impressed with the honesty, frankness and thoroughness of Dr Swan, accepting her as a competent, and attentive doctor. It is also clear that her conduct in embarking upon the management of the delivery and seeing it through the difficult stages is explicable only on the basis that, in the light of Dr Hugo's advice at that consultation, Dr Swan believed that it was appropriate to proceed to a vaginal delivery right up to the point when the decision was made to undertake a vacuum assisted delivery. There is simply nothing to suggest that the learned trial Judge misused or failed to take advantage of the opportunity which he had to evaluate the credibility of the witnesses on these issues or that he made his finding to accept the evidence of the respondent on these issues, in disregard of any other unequivocal fact or feature of the case, or otherwise made an obvious or demonstrable error in reaching the conclusions which he did. The learned trial Judge's findings are consistent with the evidence of the respondent and with other objective features of the case, including the respondent's own earlier apprehensions about the risk of complications arising from the presence of a big baby. There is nothing to justify any intervention by this Court to set aside or reverse these particular findings of fact made by the learned trial Judge. The principles upon which an appellate court may act in these circumstances are beyond doubt. They are contained in the familiar authorities of Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434; Devries v Australian National Railways Commission (1993) 177 CLR 472 and Fox v Percy [2003] HCA 22; (2003) 214 CLR 118. They have recently been confirmed and applied in Shorey v PT Ltd [2003] HCA 27; (2003) 77 ALJR 1104 and Suvaal v Cessnock City Council [2003] HCA 41; (2003) 77 ALJR 1449. The challenges made by the appeal to these particular findings must all be rejected.

111 In my view, the major issue in the appeal arises from the submission of the appellant that, in the circumstances which arose on the afternoon of 9 August 1998, the respondent came under a duty, from about 1630 hours, or possibly a little earlier, to inform the appellant of the availability of the alternative of caesarean section delivery and to offer her an opportunity to choose this despite the fact that it was not then clinically indicated or required in the interests of the baby. The law relating to a doctor's obligation to disclose to a patient, in advance of any voluntary procedure, risks which may be material to that particular patient in order for him or her to decide whether or not to proceed with the contemplated treatment is set out in Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 and in Rosenberg v Percival (supra) but neither of those decisions, nor any associated analysis of the professional obligation, goes on directly to address the situation which arose in this case. The question here is whether or not, in the midst of a procedure or in evolving process such as the second stage of labour, those principles apply, or apply to the same extent, as they do when no treatment has begun or when no process requiring professional judgment and intervention is already underway.

112 No doubt the principles contained in Rogers v Whitaker (supra), Rosenberg v Percival (supra) and other cases dealing with the need for informed consent are capable of applying in part to situations where treatment is already underway, such as, perhaps, in the case of an ongoing regime of radio therapy or chemotherapy for the eradication of malign tumours; or in the progressive treatment for chronic conditions such as diabetes; various types of wasting neurological disease; or cardio-pulmonary problems. When sufficient time and opportunity are available it is no doubt necessary for an attending physician or other doctor to explain the varieties of treatment or therapy which are open and considered suitable for the particular condition and to explain the advantages and disadvantages of the preferred regime which the doctor is recommending and, if they be considered at all material in the Rogers v Whitaker (supra) sense, to offer and explain other available options of treatment.

113 Whether such an approach is necessary, and the extent to which it may be necessary, is likely to vary markedly from situation to situation, and for different clinical conditions depending upon the circumstances of the individual case. Clearly, there must be very different considerations applying to a discussion between a physician and a patient when considering the options for treatment of chronic diabetes and a situation where a surgeon needs to make an immediate decision about the particular technique to use to reduce a fracture after trauma when the patient is in pain and needs urgent treatment. In many instances, among which the last example may possibly be numbered, there will be little if any scope for the patient to contribute to the clinical decision because, even with such discussion and explanation as may be possible in the limited time available, it could never be expected that the patient would be able to make a sufficiently informed decision. On the other hand there may be instances in which, despite this incapacity, the patient has formed a definite opinion and is either demanding or positively refusing, a particular mode of preferred treatment. In that latter case the right of independent choice of the patient, so long as he or she is competent, may be decisive even if ill-judged. On other occasions where the therapeutic responsibility has been effectively entrusted to the doctor then, unless and until the position is reached where the doctor herself or himself considers that there is a choice to be made in which the patient should participate and the patient is sufficiently capable of making such a choice in the circumstances, having regard to the time available and the situation in which the patient is placed, the reality must be that it is part of the professional obligation of the doctor to make the decision about the course and nature of treatment as a matter of professional judgment in the light of established medical practices and opinions as may apply to the situation in hand. This is certainly the case for a surgeon or other proceduralist who is faced with a choice to make in the midst of a procedure with a patient unconscious or unable to respond. No doubt there may be situations in obstetrics where it is possible and necessary to discuss some therapeutic choice with the patient and obtain her consent or choice of option. Whether this is so in any particular instance will depend largely, in my view, upon the nature of the particular decision to be made and in particular upon the degree of technicality involved, the state of the patient, whether distressed, anaesthetised or anxious, the time available and the likely consequences of the various alternatives open.

114 In the present case it can hardly be doubted that the appellant was aware that, in certain eventualities, a caesarean delivery may be necessary or would be recommended. Her general knowledge and antenatal preparation, would have made her aware that there are certain obstetrical emergencies which necessitate caesarean delivery no matter how much the patient may wish to avoid this. All the evidence in this case points to the desire of the appellant, before 9 August 1998, to have a natural delivery with the least anaesthetic or other intervention reasonably practicable. There is little objective evidence to suggest that the appellant, at any stage, would have been inclined to select a caesarean delivery as a matter of choice, if it could be avoided or was not clinically indicated. That she was generally aware of the possibility of a caesarean delivery is clear from the evidence but I consider that it should also be inferred that unless and until she herself asked about the possibility of such an alternative mode of delivery, the respondent and all those treating the appellant, were fully justified in managing the labour on the basis that there was simply no occasion to offer a caesarean section delivery unless it was clinically indicated either in the interests of the baby or of the mother. As childbirth is very often likely to involve considerable maternal pain and not insignificant maternal injury it will usually again be a matter for clinical judgment to determine whether or not the risks of a caesarean delivery are to be preferred to the risks of proceeding with a difficult labour.

115 As already recorded, the evidence in this case was that a caesarean section delivery was not clinically indicated in the interests of the appellant's baby. On the issue of whether, this notwithstanding, it was appropriate to offer the appellant the option of a caesarean delivery in her own interests, the evidence divided. Professor Mackay was of the opinion that this option could and should have been offered to Mrs Sheppard from some time in the mid-afternoon of 9 August 1998 onwards, whereas Associate Professor Dickinson and Professor Pepperell did not consider that it was called for and that, on the basis of the information available at the time, it was reasonable to proceed with a vaginal delivery which, in the end, was successfully accomplished although not without difficulty and some injury to the mother.

116 The learned trial Judge accepted the opinions of Associate Professor Dickinson and Professor Pepperell and there is nothing, in my view, to show that his Honour was wrong in making that choice. Possibly the situation was simply as straightforward as Associate Professor Dickinson and Professor Pepperell have indicated in that, despite the slow progress, the labour was proceeding within orthodox time limits and that with proper and careful management would result in it progressing to an instrument assisted conclusion. On the other hand, the situation may have been more ambiguous and the possibility of a caesarean delivery may have been an issue for professional clinical consideration. The preparations made to call Dr Hugo in at short notice, if required, suggest that such a possibility was not absent from Dr Swan's mind. Even then, however, the decision to proceed towards natural delivery has not been shown to be erroneous, or unreasonable, or unacceptable as a resolution of a difficult professional dilemma. Doctors, and in particular obstetricians, can sometimes be faced with very difficult decisions, and a choice to adopt one of two possible courses of treatment cannot constitute a breach of duty or negligence unless it is shown to have been careless in the sense that the choice adopted involved a lack of reasonable care in the circumstances.

117 There is simply no evidence at all in this case that, faced with the slow progress of labour which was occurring from 1430 hours onwards and especially the absence of full dilatation before 1800 hours, the decision of Dr Swan to proceed towards a normal vaginal delivery was careless. With the benefit of hindsight, especially in the knowledge that the baby was much larger than expected, it may be possible to say that some of the injuries suffered by the appellant may have been avoided if a caesarean delivery had been undertaken. But even that is uncertain because such a conclusion fails to take into account the different risks associated with such a surgical intervention. It is very easy to be wise after the event when so much more is known. I consider that the learned trial Judge was correct in his conclusion that no negligence or breach of duty had occurred from the absence of intervention to deliver this child by caesarean section or of any offer of such an opportunity to the appellant during the course of this difficult labour.

118 With respect to the other grounds of appeal, as I have summarised them, I agree with the conclusions of McLure J and do not consider that anything further should be added.

119 For these reasons I consider that this appeal should be dismissed.

Sheppard v Swan [2004] WASCA 215

At a glance

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Judgment (195 paragraphs)

Sheppard v Swan [2004] WASCA 215 (22 September 2004)

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Cases Cited (16)