CONSENT OR COMPLIANCE? WHEN RISK FRAMING REPLACES VOLUNTARY CONSENT

Author: Pamela Bell, Associate Editor and Licensed Certified Professional Midwife

I. Introduction: When “Consent” Feels Mandatory‍ ‍

Obstetric counseling does not happen in a vacuum. It happens in an environment in which clinicians are far more likely to be sued for failing to intervene than for intervening unnecessarily.[i] That asymmetry has quietly shaped how they present risks and how urgently they frame decision-making.

At 39 weeks pregnant, a woman sees her clinician. The baby is breech. The clinician tells her she needs a scheduled cesarean and explains that vaginal delivery for breech babies carries too high a risk of complications. In fact, the clinician gravely warns her, the risk of death is up to five times higher if she tries a vaginal delivery.[ii] Besides, the hospital doesn’t allow vaginal breech deliveries.[iii] The mother then reluctantly consents, acting in what she believes is the best interest of her baby.

Consider how differently that same risk might be communicated. The clinician could instead explain that while relative risk is higher, the absolute risk of fetal death in a planned vaginal breech birth is low—about 2–5 per 1,000 births as compared to a background risk of about 1 per 1,000.[iv] The patient would be presented with the corresponding risks to choosing the alternative, a cesarean section. Presented this way, the risk remains real but no longer sounds catastrophic. The risks and benefits of all alternatives are evaluated. The medical facts have not changed—only their presentation has. Although the first approach may feel informative and compassionate, it actually prioritizes institutional risk management over providing the balanced information patients need to make informed decisions.

Patients have a well-established right to accept or refuse medical intervention.[v]  In obstetrics, however, that right often disappears because of inadequate counseling.[vi] Legally, informed consent requires more than disclosure and the information must also be presented such that patients can make voluntary, uncoerced choices.[vii]  That legal standard is not met when doctors exaggerate risks, minimize alternatives, or  treat hospital policy and protocol  as law.

II. What the Law Requires for Informed Consent‍ ‍

Modern informed consent doctrine makes clear that the point of disclosure is not to steer patients toward a particular outcome, but to give them enough information to decide for themselves. In the landmark case establishing the parameters of informed consent,  Canterbury v. Spence, the court rejected the idea that doctors are permitted to selectively decide which information to provide to patients.[viii] Instead, the court ruled that physicians must provide patients with enough information to be able to weigh risk and benefits for themselves.[ix]  Later decisions refined this principle, holding that physicians must disclose what a reasonable patient would consider important for making a medical decision.[x]‍ ‍

At the same time, courts have recognized limits on disclosure. Physicians do not have to present detailed statistical projections, in part because statistics about large groups of people  do not map neatly onto individual patients.[xi]  However, these limits do not excuse selective or misleading communication. Even though doctors do not have to provide statistics, they still cannot exaggerate risks or obscure reasonable alternatives.[xii]  Even when disclosure might cause anxiety or lead a patient to refuse a treatment the physician recommends, the duty to disclose still remains: material information must be shared such that it allows the patient to make a genuine choice.[xiii]‍ ‍

Professional guidance in obstetrics reinforces these legal principles. The American College of Obstetricians and Gynecologists (ACOG), the leading professional organization for ob-gyns, explains that “[c]onsenting freely is incompatible with being coerced or unwillingly pressured by forces beyond oneself. It involves the ability to choose among options and select a course other than what may be recommended.”.[xiv]  Crucially, ACOG emphasizes that “[p]regnancy is not an exception to the principle that a decisionally capable patient has the right to refuse treatment, even treatment needed to maintain life.”[xv] Clinicians cannot simply recommend what the clinician views as safest; they must support decision-making that reflects patients’ values and priorities.[xvi]‍ ‍

Informed consent requires balanced information, meaningful discussion of available alternatives, and genuine respect for the patient’s right to refuse treatment -- even when refusal carries serious risk.[xvii] ACOG has warned that tools like decision aids or risk calculators may help understanding, but they cannot replace the clinician’s responsibility to have a thoughtful, supportive consent conversation.[xviii] When counseling becomes directive or manipulative, exaggerates risk, or appeals to institutional policy or liability, it no longer meets the legal requirements of informed consent.

III. Framing Risk and the Collapse of Voluntariness‍ ‍

Although patients have a recognized legal right to accept or refuse medical intervention, counseling practices in obstetrics can and do compromise the exercise of that right by relying on incomplete information, pressure, or emotional appeals.[xix] Clinicians may emphasize relative risk without context, presenting low-probability outcomes as looming tragedies. Data indicate that some interventions occur without meaningful consent and that many patients will acquiesce when presented with information implying increased fetal risk.[xx]‍ ‍

It is true that clinicians face greater legal risk for failing to intervene than for intervening unnecessarily. Tort law can influence how providers behave by encouraging them to order tests and procedures that reduce legal risk but which have “marginal or no medical benefit.”[xxi] As an example of this dynamic, in obstetrics malpractice litigation, underuse of cesarean delivery is cited far more often than overuse (31% vs. 3%) as the reason for injury, reinforcing the reality that the legally safer course is often the more interventive one.[xxii]‍ ‍

Hospital policies and risk-management protocols reinforce this dynamic. Clinicians often justify categorical bans on vaginal breech delivery or rigid labor timelines as matters of safety, but they are also about minimizing liability.[xxiii] Because most patients are unaware that they always have the right to refuse procedures grounded in hospital policy,[xxiv] when clinicians invoke such policies as part of counseling, they are effectively coercing patients to comply with hospital policy rather than supporting voluntary decision-making.[xxv]‍ ‍

The effect of these skewed conversations is profound. When clinicians tell patients that a risk has “doubled,” that delay could lead to catastrophe, or that choosing differently could place the provider or institution in legal jeopardy, they are not engaging patients in any sort of deliberative or cooperative process. To provide patients an honest foundation for their decision-making, their discussion should include both relative and absolute risk, potential benefits, and possible alternatives. When they present only the information that will steer patients toward the providers’ preferred choice, it is likely that such processes are not legally valid.  

IV. Why Incomplete Counseling Fails as Informed Consent Under the Law‍ ‍

Under informed consent doctrine, these failures are not merely problematic—they disqualify the consent as informed. The law requires not only disclosure, but disclosure in a form that allows a patient to weigh material risks and benefits in order to make a voluntary decision. The standard in Canterbury is that “[t]rue consent to what happens to one’s self is the informed exercise of a choice, and that entails an opportunity to evaluate knowledgeably the options available and the risks attendant upon each.”[xxvi]‍ ‍

Because informed consent requires disclosure sufficient to permit an “informed exercise of choice,” incomplete or skewed counseling can prevent patients from meaningfully weighing their options. If clinicians present risks that exaggerate dangers while minimizing benefits or reasonable alternatives, “consent” becomes a mere formality instead of genuine decision-making.[xxvii]‍ ‍

Voluntariness presents a distinct but related concern. Even when clinicians disclose adequate information, consent is not meaningful if that encounter constrains the patient’s freedom to decide. Counseling that heightens urgency, invokes institutional policy, or emphasizes potential legal exposure can narrow a patient’s perceived choices. While some pressure is unavoidable in serious medical decision-making, informed consent breaks down when that pressure arises from how options are framed rather than from the clinical facts themselves.[xxviii]‍ ‍

These dynamics can make the right to refuse medical treatment difficult to exercise. Courts have long recognized that consent—and by extension the right to refuse—depends on the patient’s ability to make a meaningful and informed choice.[xxix] Yet research shows that incomplete information and emotional pressure can lead patients to accept rather than decline recommended care.[xxx] When clinicians frame refusal as dangerous or irresponsible, the law may recognize the consent in theory, but the structure of the conversation denies it in practice.

V. Conclusion: Restoring Meaningful Choice in Maternity Care‍ ‍

In obstetric care, informed consent is more than just signing a form — it requires detailed knowledge for real choice. When potential liability, institutional policies, or how risks are framed shapes those conversations, patients’ decisions are constrained, even as it appears that they have been given meaningful options. Meaningful consent depends on counseling that presents alternatives honestly, objectively,  and thoroughly; without it, patient autonomy is more aspirational than real.

‍[i]See Javier Cano-Urbina, Daniel Montanera, The Differential Effects of Malpractice Reform: Defensive Medicine in Obstetrics, 39 J.L. Econ. & Org., 309 (2023); Beomsoo Kim, The Impact of Malpractice Risk on the Use of Obstetrics Procedures, 36 J. Legal Stud., 1 (2007); Louise Marie Roth, The Business of Birth: Malpractice and Maternity Care in the United States 150-188 (2021).

[ii] Francisco J. Fernández-Carrasco et. al., Maternal and fetal risks of planned vaginal breech delivery vs planned caesarean section for term breech birth: A systematic review and meta-analysis, 12 J. Glob. Health (2022), https://pubmed.ncbi.nlm.nih.gov/35976004/.

[iii]See Hillary Schumer, Barriers to Attending Vaginal Breech Birth in the American Healthcare System: A Qualitative Analysis, 82 Doctor of Nursing Practice Projects (2023) (detailing the structural limitations affecting the availability of vaginal breech delivery in the U.S., including hospital policies). https://scholarworks.seattleu.edu/cgi/viewcontent.cgi?article=1081&context=dnp-projects.

[iv] David E. Winston, DO & Michael Chase Ledbetter, DO, How do outcomes compare for planned vaginal birth versus planned cesarean delivery for term breech presentation? 24 Evidence-Based Practice, 18 (2021).

[v]See Am. Coll. of Obstetricians & Gynecologists, Committee Opinion No. 390, Ethical Decision Making in Obstetrics and Gynecology, (December 2007, reaffirmed 2019) [hereinafter ACOG, Ethical Decision Making]; Am. Coll. of Obstetricians & Gynecologists, Committee Opinion No. 819, Informed Consent and Shared Decision Making in Obstetrics and Gynecology, (February 2021) [hereinafter ACOG, Informed Consent].

[vi]See Am. Coll. Obstetricians & Gynecologists, Committee Opinion No. 664, Refusal of Medically Recommended Treatment During Pregnancy, (2016) [hereinafter ACOG, Refusal of Treatment] (stating that a competent pregnant patient has the right to refuse recommended medical treatment and cautioning that coercion undermines ethical decision-making); ACOG, Informed Consent, supra note vi (describing informed consent as requiring provision of adequate information and freedom from coercion); ACOG, Ethical Decision Making, supra note vi (identifying voluntariness as a core component of informed consent); Centers for Disease Control and Prevention, Vital Signs: Maternity Care Experiences — United States, 2020, 72 Morbidity & Mortality Weekly Report (2023) (reporting that many patients held back questions or concerns during maternity care and describing experiences of mistreatment); Adam Kotaska, Informed Consent and Refusal in Obstetrics: A Practical Ethical Guide, Birth 195 (2017) (explaining that coercion negates consent and undermines patient autonomy); Canterbury v. Spence, 464 F.2d 772, 780–82 (D.C. Cir. 1972) (holding that physicians must disclose material information necessary for a patient to make an informed decision).

[vii] Murray, Bryan, Informed Consent: What Must a Physician Disclose to a Patient? Virtual Mentor 14, no. 7 (2012): 563–566. https://doi.org/10.1001/virtualmentor.2012.14.7.hlaw1-1207.

[viii] Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972).

[ix]Id.‍ ‍

[x] Cobbs v. Grant, 8 Cal. 3d 229 (1972); Truman v. Thomas, 611 P.2d 902 (Cal. 1980) (holding that a physician’s duty of disclosure is measured by what a reasonable patient would consider material to an informed decision, rather than by professional custom).

[xi] Arato v. Avedon, 858 P.2d 598 (Cal. 1993) (holding that physicians are not required to disclose specific statistical life-expectancy data because population statistics may not meaningfully inform individual decision-making).

[xii] Johnson v. Kokemoor, 545 N.W.2d 495, 505–06 (Wis. 1996) (holding that informed consent is violated where a physician’s selective disclosure and framing of risk misleads a reasonable patient and obscures meaningful alternatives).

[xiii]Truman v. Thomas, 611 P.2d 902, 906–07 (Cal. 1980) (holding that informed consent requires disclosure of material risks even where disclosure may cause anxiety or lead the patient to refuse recommended treatment).

[xiv]See ACOG, Ethical Decision Making, supra note vi; ACOG, Informed Consent, supra note vi.

[xv]Id.‍ ‍

[xvi]Id.‍ ‍

[xvii]Id.‍ ‍

[xviii]Id.‍ ‍

[xix]Id.‍ ‍

[xx]See Cherie L. Correlli, Medical Coercion During Pregnancy and Childbirth, 52 U. Balt. L. Rev. 1 (2022); Nicholas Rubashkin, Epistemic Silences and Experiential Knowledge in Decisions After a First Cesarean, 37 Med. Anthropol. Q. 341, 345–50 (2023).

[xxi] Michelle M. Mello et al., Medical Malpractice—An Uncertain Future, 367 N. Engl. J. Med. 283, 286 (2012).

[xxii]See Richard L. Kravitz et al., Malpractice Claims Data as a Quality Improvement Tool: I. Epidemiology of Error in Four Specialties, 266 JAMA 2087 (1991) https://jamanetwork.com/journals/jama/article-abstract/392695; Correlli, supra note xx at 18-23(discussing how liability concerns shape obstetric counseling and narrow patient choice).

[xxiii]See  Mello, supra note xxi.

[xxiv]See Correlli, supra note xx (discussing hospital obstetric policies justified as safety measures but driven by standardization and liability concerns); Bradley Zint, Activists Protest Hospital’s Vaginal-Breech Delivery Ban, L.A. Times (Sept. 9, 2016), https://www.latimes.com/local/lanow/la-me-ln-breech-birth-ban-20160909-snap-story.html.

[xxv]See Correlli, supra note xx.

[xxvi]See Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972) at 780–81; Cobbs, 502 P.2d at 10–11.

[xxvii]See Canterbury 464 F.2d 772; Johnson by Adler v. Kokemoor, 545 N.W.2d 495 (Wis. 1996) (requiring disclosure of material information, including risks, benefits, and viable alternatives, necessary for a reasonable patient’s decision).

[xxviii]See Canterbury 464 F.2d 772.

[xxix]Id.‍ ‍

[xxx]See Correlli, supra note xx.