Medical Treatment, Miscarriages, and Consent Seminar

Abstract

This paper explores whether the options for disposal of pregnancy remains following a miscarriage prior to 24 weeks’ gestation should form part of the process of consent for medical treatment, or healthcare, for miscarriage.

This question arises as recent research demonstrates variation between hospitals in information given about disposal options. When a woman miscarries at less than 24 weeks’ gestation, the fetal remains need to be disposed of. The law regards fetal remains as part of the woman’s tissue and consent is not required for its disposal. However, the Human Tissue Authority has recognised that the nature of fetal remains requires them to be treated differently and in 2015, issued guidance on disposal of those remains aimed at addressing the gap in the law. The guidance requires healthcare professionals to offer women the options of disposal by burial, cremation, or incineration. However, such guidance is not mandatory and research has found that the information given to women about disposal options varies between hospitals [Report to the Human Tissue Authority on Disposal of Pregnancy Remains (2017)]. Interviews with women who have miscarried illustrates that this lack of information can have long-term consequences for women recovering from the trauma and bereavement associated with miscarriage.

This paper explores the extent to which the existing law surrounding informed consent to medical treatment could be used to ensure the HTA guidance is followed. It examines the case of Montgomery [2015] which requires healthcare professionals to give patients information about treatment, and its extension to post-treatment information [Spencer v Hillingdon (2015); Gallardo v Imperial College (2017)]. The paper concludes that information about the disposal of fetal remains falls within the legal requirements of informed consent on the basis that it forms part of the medical treatment, or healthcare, for miscarriage.