Seeking Legal Advice

If you or your partner or child has suffered injury through birth trauma, you may need support and guidance from a range of different professionals to work through what has happened. Potentially, this could include health professionals (midwife, doctor, nurse, physiotherapist, psychologist, etc), counsellors, as well as legal advisors. This section provides introductory information about receiving legal advice.

Many people affected by birth trauma seek legal advice in order to find out more about what has happened to them, and what their options and rights might be. For example, you may speak with a lawyer to explore your statutory entitlements to clinical records; register a complaint against a health professional or health service provider; or seek damages to compensate you for your losses.
Importantly, each State and Territory in Australia (and also New Zealand) has its own statutes and rules, though there are commonalities across jurisdictions, and some national rules apply. It is always best to seek advice from a lawyer who is familiar with the rules in the place where you underwent treatment, and who has expertise in the practice area. The Australasian Birth Trauma Association does not provide legal advice.

Table of Contents

Accessing Health Records

Most States and Territories have laws in place which give patients a right to access their own health records. The procedures and entitlements differ depending on where you had the treatment, and whether the provider was a public or private health service. You would usually not need a lawyer to access these records.
You may be able to place a direct request for a copy of the records with the provider, or ask your GP to do so on your behalf. If you are having difficulty getting the records from the provider, you can also seek information from the relevant state health commission or similar government bodies. For example, the Office of the Australian Information Commissioner provides guidance about patient rights to health information on its website and deals with complaints under the Privacy Act 1988 (Cth). In New Zealand, the Ministry of Health website should be your first port of call for information about accessing health records.

Making a Complaint about a Health professional

You can make a complaint about how you have been treated directly to the professional or provider. Most bigger health services, including hospitals, have a process for talking through adverse outcomes with patients, and/or receiving complaints from patients. You may prefer to have a support person present for these conversations.
You may also wish to contact a regulatory body to make a complaint or raise a concern about a health professional.

Australia

You should contact the Australian Health Practitioner Regulation Authority (AHPRA) if you are concerned that:

  • a health professional’s behaviour is placing the public at risk;
  • a health professional is practising their profession in an unsafe way; or
  • a professional’s ability to make safe judgements about their patients might be impaired.

Each State and Territory has a commissioner or health complaints organisation dedicated to receiving healthcare complaints. AHPRA publishes a list of these bodies on its website.
If you are unsure whether you should make a complaint and/or to whom you should make it, you can contact AHPRA on 1300 419 495 to talk it through. Their contact details are published on their website.

New Zealand

In New Zealand, contact the Health and Disability Commissioner on (0800) 112 233, or their website. You can also contact the Nationwide Health and Disability Advocacy Service for advice. They will be able to talk you through how to raise your concerns, including the possibility of making a complaint to the relevant professional council.

Seeking Compensation

In Australia, if you are concerned that you (or your partner or child) have suffered injury as a result of negligence by health professionals in caring for you in pregnancy or childbirth, including being provided with insufficient information, you may wish to contact a solicitor practicing in medical negligence law in your jurisdiction.

New Zealand has a no-fault compensation scheme. See the Accident Compensation Corporation on their website for more information.

The remainder of this section applies to Australia only.
It is important to seek advice at the earliest opportunity. Most States and Territories have time limits for notifying a potential defendant of your intention to make a claim, and/or lodging a claim in court. The limitation date can be different in different circumstances, and it is important to obtain legal advice on your specific situation as soon as possible. You should not take advice about limitation periods from non-lawyers, even if they have been through a legal claim themselves. The rules can be complex, and exceptions might apply to your particular experience. You could have less or more time than you think (or than someone else you know did when they made a claim).

A solicitor should be able to investigate a potential medical negligence claim. In Australia, you can check the Law Society websites for your relevant State or Territory to identify a law firm practicing in the area:

  • Law Society of the ACT
  • Law Society of NSW
  • Law Society Northern Territory
  • Law Society of South Australia
  • Law Society of Tasmania
  • Law Institute of Victoria
  • Law Society of WA

The Australasian Birth Trauma Association does not endorse or recommend specific law firms.

How much will it cost me to get legal advice?

This is an issue you should discuss with a potential solicitor before retaining them to act on your behalf. It is important that you find a lawyer who is open and upfront with you about the basis on which they plan to charge you, including such issues as:

  • whether they are acting on a “no win, no fee” basis;
  • who will pay for disbursements along the way;
  • who carries the risks;
  • what rates they charge at; and
  • any special conditions that apply.
Your lawyer should present a costs agreement to you, and discuss it with you early on. You are entitled to ask questions, to negotiate, and to seek independent legal advice on the contract with your primary lawyer.
Most lawyers will not charge you anything for a preliminary conversation to discuss whether they can help you, but you should check this.

Donate via PAYPAL Today

Visit our Paypal donation page to give a one-off donation. Donations are tax-deductible and you will receive a receipt for your as soon as it is processed.

Related Links