Case Law Update: Gawthrop v Bendigo Health [2026] VSC 157

On 27 March 2026, the Supreme Court handed down Gawthrop v Bendigo Health [2026] VSC 157, a significant decision regarding patient consent and care in obstetric practice. The proceedings were brought against Bendigo Health, with the Plaintiff ultimately succeeding in establishing that a vaginal examination performed during labour without proper consent constituted assault and battery.

Background

The Plaintiff, Ms Larissa Gawthrop, was born and raised in Bendigo, Victoria. In 2020, she fell pregnant.

Ms Gawthrop’s approach to childbirth was influenced by her sister’s experience, which she found confronting, particularly the number of vaginal examinations (VEs) involved. As a result, she expressed desires for a low-intervention birth. Ms Gawthrop was accepted into the Mamta midwifery program at Bendigo Health and prepared a detailed birth plan which stated, inter alia, “I decline all vaginal examinations unless there is an urgent medical reason to do so. Informed verbal consent must be given from myself prior.”

However, when Ms Gawthrop presented to hospital in labour, she was told that she would not be admitted, would not have her chosen midwife called and would not receive pain relief unless she agreed to a VE. After prolonged pain and distress, Ms Gawthrop consented to the examinations but described feeling “coerced”, “strongarmed”, “very defeated and so bullied”.
Ms Gawthrop commenced proceedings against Bendigo Health for her consequential psychiatric injury arising from the treatment, including reactivation of previous psychological distress, anxiety and flashbacks, and impairment to mood and behaviour.

Absence of free and voluntary consent amounts to assault and battery

The key issue before the Supreme Court was whether Ms Gawthrop had given valid and voluntary consent to the VEs. The Court affirmed that consent requires capacity, understanding and a true, free choice; it is not the same as “non-consenting mere submission”.

The Court found that Ms Gawthrop’s birth preferences were ignored and over a highly distressing two-hour period while labouring and in pain, she was pressured and offered no real choice but to ultimately submit to an unwanted VE. The Court held that Ms Gawthrop did not freely or voluntarily consent and therefore, the examination constituted assault and battery.

Failure to warn amounts to negligence

The Court also found Bendigo Health negligent in failing to follow its own informed consent policy, failing to provide a genuine choice and for disregarding Ms Gawthrop’s clearly expressed preferences. The Court also found that the hospital’s “dual messaging” amounted to negligence; Ms Gawthrop was led to believe her birth plan would be respected but was not warned that internal hospital policies could ‘override’ it. The hospital owed a duty to warn Ms Gawthrop of material risks, including the possibility that a VE might be required without urgent medical need. The Court concluded that, had Ms Gawthrop’s preferences been properly acknowledged and escalated to senior staff, the examination and the resulting psychological harm would have likely been prevented.

Damages

The Court awarded Ms Gawthrop $275,000.00 in general damages for her pain and suffering and $5,288.55 in special damages. However, the Court did not award Ms Gawthrop’s claim for aggravated damages and considered that though the conduct fell below a reasonable standard of care, it did not rise to “contumelious disregard, high-handedness or malice”.

What this means for Personal Injury Lawyers

This decision is a powerful reminder of what informed consent truly requires in practice.

As an advocate for Plaintiffs who have experienced traumatic obstetric care, this case speaks directly to the experiences so many of our clients describe; feeling unheard, having their medical preferences disregarded and their decisions not respected. Consent is about genuine choice, not mere compliance or submission, and consent given in circumstances of pressure, vulnerability or limited options may not amount to valid consent at all.

The case also demonstrates that birth plans should not be merely aspirational; where a patient has clearly expressed preferences, they must be taken seriously. Failing to acknowledge these preferences, explain their limits or warn that they may not be followed can amount to negligence.

Finally, the decision highlights the importance of hospitals’ internal policies in defining the standard of care. A hospital’s own informed consent policy can serve as a standard for assessing its conduct. For us as lawyers, this shows the value in obtaining and carefully reviewing these policies when advocating for our clients.

You can read the judgement here: https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2026/157.html 

For more information about this important case law, or to discuss your circumstances and entitlements in an obstetric negligence claim, contact Brave Legal on 03 9070 9816.