• Ethics- Medical
• Informed Consent
• Obstetrics

The authors of the feature article argue against implied consent in all episiotomy cases, but allow that opt-out consent might be appropriate in limited circumstances.1 However, they do not indicate how clinicians should assess whether the pregnant person is capable of consenting in this way during an obstetric emergency. This commentary will focus on how capacity should be determined during these circumstances, suggest next steps for clinicians if capacity is deemed uncertain or absent, and discuss the appropriate role for opt-out consent in labour.

Previous studies investigating the extent to which pregnant persons retain decision-making capacity during labour have shown poor recall, a component of capacity, about consent processes during obstetric emergency procedures in 14%–49% of cases.1 2 As the feature article acknowledges, this does not mean that pregnant persons should be assumed to lack decision-making capacity during labour. Although pain, labour intensity, exhaustion and medications can make consenting processes during labour more difficult and it is possible that these factors will result in the impaired ability of the pregnant person to make informed and voluntary decisions about treatment options, this possibility of impaired capacity should not be taken as the expected outcome nor should it be used as an excuse to skip consenting procedures.1 2 The default to treat labouring patients as able to make their own decisions still stands, although signs that a person lacks …