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. 2022 Jan;52(1):28-31.
doi: 10.1002/hast.1337.

Consent for Intimate Exams on Unconscious Patients: Sharpening Legislative Efforts

Phoebe Friesen, Robin Fretwell Wilson, Soyoon Kim, Jennifer Goedken

Consent for Intimate Exams on Unconscious Patients: Sharpening Legislative Efforts

Phoebe Friesen et al. Hastings Cent Rep. 2022 Jan.

Abstract

The practice of nonconsensual intimate exams performed on unconscious patients by medical students during their training has received significant attention in the last several years. Clinicians, medical students, bioethicists, lawyers, and the public have called for explicit and specific consent to take place before all educational intimate examinations of unconscious patients. In response, since January of 2019, dozens of bills have been proposed in more than twenty states, and thirteen of these have been signed into law (in addition to six that passed before 2019). Here, we consider the content of these enacted bills, drawing attention to five variable features and offering these five corresponding legislative recommendations, in hopes of narrowing in on the appropriate ethical scope of consent laws surrounding educational intimate exams: (1) use gender-neutral language; (2) include all intimate exams, not solely pelvic exams; (3) focus on unconscious patients; (4) focus on educational exams; and (5) regulate systems, not individuals.

Keywords: clinical ethics; doctor-patient trust; health law; informed consent; intimate examinations; medical education; pelvic examinations.

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References

    1. P. Friesen, “Why Are Pelvic Exams on Unconscious, Unconsenting Women Still Part of Medical Training?,” Slate, October 30, 2018, https://slate.com/technology/2018/10/pelvic-exams-unconscious-women-medi... R. F. Wilson and A. M. Kreis, “#JustAsk: Stop Treating Unconscious Female Patients Like Cadavers,” Chicago Tribune, November 29, 2018. It is important to differentiate between exams performed by students, for whom these exams are purely educational, and residents and fellows, who are qualified as providers and unlikely to perform intimate exams on patients for whom they do not have direct care responsibilities.
    1. J. Goedken, “Pelvic Examinations under Anesthesia: An Important Teaching Tool,” Journal of Health Care Law and Policy 8, no. 2 (2005): 232-39; P. A. Ubel and A. Silver-Isenstadt, “Are Patients Willing to Participate in Medical Education?,” Journal of Clinical Ethics 11, no. 3 (2000): 230-35; S. S. Barnes, “Practicing Pelvic Examinations by Medical Students on Women under Anesthesia: Why Not Ask First?,” Obstetrics & Gynecology 120, no. 4 (2012): 941-43.
    1. J. Valenti, “Let’s Say it Plainly: Pelvic Exams without Consent Are Rape,” GEN, February 24, 2020, https://gen.medium.com/lets-say-it-plainly-pelvic-exams-without-consent-....
    1. For a detailed examination of why consent for these exams matters, see P. Friesen, “Educational Pelvic Exams on Anesthetized Women: Why Consent Matters,” Bioethics 32, no. 5 (2018): 298-307.
    1. H. L. Cundall, S. E. MacPhedran, and K. S. Arora, “Consent for Pelvic Examinations under Anesthesia by Medical Students: Historical Arguments and Steps Forward,” Obstetrics & Gynecology 134, no. 6 (2019): 1298-1302; M. M. Hammoud et al., “Consent for the Pelvic Examination under Anesthesia by Medical Students: Recommendations by the Association of Professors of Gynecology and Obstetrics,” Obstetrics & Gynecology 134, no. 6 (2019): 1303-7.

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