Consent policy on pelvic exams while unconscious inadequate: Experts
Consent policy on pelvic exams while unconscious inadequate: Experts
By Sharon Kirkey, Postmedia News
New guidelines about pelvic exams that are performed while women are unconscious during surgery don't offer enough protection for the controversial practice - which could legally qualify as "battery" - experts are warning.
An article in this country's leading medical journal is criticizing the Canadian new policy on consent, saying it reduces the safeguards that were in the previous 2006 guidelines.
The previous policy covering consent from the patient prior to such an examination applied to "medical trainees" - meaning students as well as residents. However, the new guidelines consistently refer, for the most part, only to "medical students."
The switch isn't trivial, say two professors from Dalhousie University in Halifax in this week's edition of the Canadian Medical Association Journal.
A pelvic exam performed by a resident for training purposes without explicit consent from the woman "arguably constitutes a battery in law," they say.
"The performance of pelvic examinations on women under anesthesia by medical trainees is a long-established practice in Canada and elsewhere," professors Elaine Gibson and Jocelyn Downie, of the Health Law Institute at Dalhousie University, write in the CMAJ.
While many women might be surprised to learn this happens, there's some rationale for doing so, they say.
"One is the importance of training - (medical trainees) need to do pelvic exams at some point so that they're competent doing one," said Gibson, associate director of the Health Law Institute.
Women are under a relaxed state when they're under anesthesia, she added, "so the trainee is able to do the procedure with greater ease without being as worried about whether they are interfering psychologically with the patient at the time of the examination."
Another justification is that women don't experience as much discomfort if they are unconscious, she said.
But the practice created a flurry of controversy in 2010, after Canadian media reports suggested the procedures were potentially happening without the woman's consent.
A 2009 study by Calgary researchers of 102 women - most of whom had undergone gynecologic surgery in the past - found that only 19 per cent were aware that a medical student might conduct a pelvic exam in the operating room; 72 per cent expected to be asked for consent.
Some medical schools said that women treated at teaching hospitals essentially give implied consent to having procedures performed on them by medical trainees by virtue of being treated at a teaching hospital. Patients treated at teaching hospitals sign consent forms upon admission or prior to surgery that acknowledge students might be involved in their care.
But the controversy led the Society of Obstetricians and Gynaecologists of Canada and the Association of Professors of Obstetrics and Gynaecology of Canada to issue an updated policy statement.
But while medical students now "face a more rigorous regime than they did before," the new guideline doesn't explicitly name residents, Gibson and Downie write.
"Residents some of the time are performing these procedures for training purposes, and they should be required to get explicit consent," Gibson said.
In Canadian law, any "nontrivial, intentional physical contact with another person that is harmful or offensive constitutes a battery," the authors say.
"Battery is what is known to most people outside of a specific legal context as assault, and the courts have found that any intentional, non-minor harmful or offensive touching of a person or physical interference with a person is a battery," Gibson said. But if consent is present, that could be a defence to a claim of battery, she said.
"So really, any surgical procedure that is performed without consent constitutes a battery in law," with the exception of cases of a medical emergency, Gibson said.
Similarly, if residents are performing pelvic examinations while a woman is under a general anesthetic for training purposes without consent, "it could well be found to constitute a battery in law," she said.
The Society of Obstetricians and Gynaecologists of Canada, in a statement written in response to the CMAJ article, said that virtually all examinations conducted by medical students are for educational purposes, and, as a result "they require the supervision of an appropriately qualified health-care professional, which could be a resident. Residents are physicians, medical students are not. Consequently, patients must be aware of, understand, and consent to the involvement and roles of medical students in the care they are going to receive," the Ottawa-based organization said.
According to the society, the new policy clearly states,"Consent for the pelvic examination under anesthesia by the gynecologic surgical team, including the medical student, must be obtained."
"The gynecologic surgical team includes the resident," the society said. "This supports the notion that in all settings, the patient's consent must always be obtained before examinations and procedures are conducted by the gynecologic surgical team, which may involve a resident and medical student."
Gibson said the argument misses the point. The fact that residents are doctors doesn't change the fact that they're still in training, she said, "and explicit, specific consent to an exam being performed for training purposes should be obtained."
The updated statement needs to be revised to include residents performing exams for training purposes, or there should be a separate policy for residents, Gibson said.
Gibson said that it's her understanding that there may be rectal exams being performed on men while they're under anesthetic for training purposes, but that she has not looked into what form of consent there is, or is not, for those procedures
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