Abstract
While the practice now seems to be relatively uncommon, in the recent past some medical doctors have instructed their students to perform intimate exams on unconscious patients without first securing their informed consent. Concern about the issue has led some American states to introduce legislation explicitly banning such exams. We consider if Australian states should do the same. Noting that there is little substantive evidence suggesting that the practice continues in Australia, we argue that the creation of specific laws lacks justification; such exams already contravene existing health law, which prohibits the conduct of any physical exam without first ensuring the patient’s consent. Furthermore, even if the practice continues, additional legislation will do little to address the more fundamental issue; a culture that considers the practice morally acceptable. We therefore argue that professional bodies, including student organisations, should issue formal position statements that not only reject such exams unequivocally, but also offer guidelines for best practice. Teaching hospitals and medical schools should adopt similar policies on the matter and ensure that these are discussed at relevant junctures in the curricula. Such policies should ensure accountability by setting out clear reporting lines that establish clear sanctions for those who instruct medical students to perform such exams.
Key messages
The performance of intimate exams without the consent of the patient is already unlawful.
There is little evidence to suggest that unconsented intimate exams are being performed for education purposes in Australia.
Ensuring that such exams do not occur is not a matter of creating further laws, but of ensuring that the practice is incompatible with the cultural and professional norms of medicine and medical education.
Introduction
The ethical issues associated with medical students performing intimate exams for educational reasons has been the subject of discussion for some time.1 This discourse emerged as it gradually become understood that medical doctors and surgeons have instructed medical students to perform intimate exams on unconscious patients without first ensuring that the patient has given their consent. In some cases, exams have been performed on patients who would not otherwise be the subject of such procedures, meaning that not only is it the case that intimate exams have been performed for educational reasons alone, they have been undertaken despite the fact that patients are undergoing operations unrelated to their genitalia or reproductive system.
Unsurprisingly, there is no real debate on the ethical acceptability of such exams and the conclusions drawn by various authors evince a high degree of uniformity (Bibby et al, 1988; Wilson, 2005; Barnes, 2012; Friesen, 2018; Bruce, 2020; Underman, 2020; McGurgan and Calvert, 2021; Bell and Emmerich, 2022; Friesen et al, 2022). As is the case with any other physical exam or intervention performed by healthcare professionals – or those studying to become healthcare professionals – intimate exams should not take place without first ensuring the fully informed consent of the patient. Furthermore, not only should patients be informed about – and explicitly consent to – any exam or intervention, permission should also be sought for both the presence of students and the possibility that they might repeat the exam for educational purposes. Indeed, best practice indicates that students should secure the patient’s informed consent themselves, not least so that they might be personally assured that it has been given.
While this position would appear to be a relatively clear, it seems that problems continue to arise, particularly in the USA (Caplan, 2018a; 2018b; Goldberg, 2020; Valencia, 2021). Thus, while there are no compelling arguments that would support the continuation of intimate exams performed without the fully informed consent of patients for educational reasons – and despite the fact that such exams would appear to amount to sexual assault on the face of it (Hendricks and Seybold, 2022) – it nevertheless seems that the practice continues to persist. As a result, more than 20 American states have recently introduced legislation that seeks to explicitly address the matter (Friesen et al, 2022). Nevertheless, given that it is already clear that such practices are both morally objectionable and legally unacceptable it is not clear what legislators envision might be achieved by such statutes.
This article considers the topic of unconsented intimate exams performed for educational reasons in the Australian context. Following a brief discussion of what might be meant by the phrase ‘intimate exam’ we present an account of the relevant legal position and professional regulation pertaining to such exams in Australia. We question if it would be justified to pursue legislative efforts similar to those enacted by various American states in Australia. We conclude that it would be preferable if various professional associations – and perhaps including the Australian Medical Students Association (AMSA) – were to produce clear statements and guidance on the matter. Subsequently, they should ensure that members are fully aware of, and accountable to, their content, as should already be the case for those (such as the Royal Australian and New Zealand College of Obstetricians and Gynaecologists (RANZCOG)) that have already adopted such guidance. We also argue that it is important for medical schools and teaching hospitals to adopt clear guidance on the matter. This should be taught as part of the formal ethics and law curriculum as well as referenced as part of the teaching of intimate exams and, where they are involved, the education delivered by Gynaecological Teaching Associates (GTA).2
Intimate exams
Generally speaking, an intimate (or pelvic) exam is one which takes place with female patients and involves the healthcare professional inserting one or two (gloved) fingers into the patients’ vagina, allowing various parts of the female reproductive anatomy to be palpated.3 When properly performed, medical doctors can detect a variety of abnormalities. Intimate exams therefore form an important part of medical education and training, and some degree programmes require students to perform a specific number of them prior to graduation.4 Of course, in this context, the terms ‘intimate exam’ and ‘pelvic exam’ are being used somewhat euphemistically and while they are commonly used to refer to vaginal exams the phrase can also be used to refer to rectal exams. Unlike vaginal exams, this something that can and is performed on both male and female patients and involves inserting a gloved finger into the patient’s anal canal. While the analysis advanced in the current literature on this topic (and in this article) generally applies to both vaginal and rectal exams the primary concern is with vaginal exams. This is not simply because they are they more common. It is also because there if far less evidence that medical doctors and surgeons have commonly instructed medical students to perform them on unconscious patients without securing their informed consent.
[A]n examination that a patient or a member of the public may reasonably regard as intimate, usually the breasts, genitalia or an internal examination (vaginal or rectal). The definition of an intimate examination may also be affected by a patient’s cultural values and beliefs.
(Medical Board of Australia, 2018: 7)
Such statements highlight the importance of ensuring that the patient has given informed consent; doctors are only able to determine whether or not a patient considers an exam to be intimate in nature once they have appropriately detailed what it is that is being proposed.
The law and professional regulation in Australia
As Hendricks and Seybold (2022) have recently made clear, performing an intimate exam without securing the informed consent of the patient amounts to sexual assault and may constitute rape. A similar point is made in guidance issued by the MBA, which also notes that an unwarranted physical exam may include instances where ‘others, such as students, [are instructed] to conduct examinations on anaesthetised patients, when the patient has not given explicit consent for the examination’ (Medical Board of Australia, 2018: 5). That this is the case is a matter of basic legal principles that are embedded in most (if not all) jurisdictions. In short, autonomous individuals have a basic legal right to decide what is – or is not – done to their bodies. In the absence of consent (or other authorisation) any physical intervention on the person of another (including medical treatment or examination), amounts to the tort of trespass (to the person). Depending on the nature of the intervention, and the precise way in which the law is written in the relevant jurisdiction, this can rise to level of a criminal offence, including assault (or battery) (White et al, 2018: sec.5.10). It is in this legal context that intimate exams should be understood; when performed without the informed consent of the patient they amount to sexual assault and potentially constitute rape.
A person who strikes, touches, or moves, or otherwise applies force of any kind to, the person of another, either directly or indirectly, without the other person’s consent, or with the other person’s consent if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without the other person’s consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect the person’s purpose, is said to assault that other person, and the act is called an assault.6 (Queensland’s Criminal Code Act 1899 at 245)
- (a)the person has carnal knowledge with or of the other person without the other person’s consent; or
- (b)the person penetrates the vulva, vagina or anus of the other person to any extent with a thing or a part of the person’s body that is not a penis without the other person’s consent; or
- (c)the person penetrates the mouth of the other person to any extent with the person’s penis without the other person’s consent.7 (Queensland’s Criminal Code Act 1899 at 349)
A person is not to be taken to give consent to an act only because the person does not, before or at the time the act is done, say or do anything to communicate that the person does not consent to the act. (Queensland’s Criminal Code Act 1899 at 348)
In short, presuming that consent has been implicitly given is not consistent with the criminal law in Queensland. The fact that the patient is in a teaching hospital and might be expected to be cognisant of this fact does not constitute a reasonable defence. A similar point is also set forth in professional guidelines such as the Australian Medical Council’s (AMC) comprehensive Good Medical Practice (Breen et al, 2016). Not only does it set forth the view that additional care should be taken when conducting intimate exam (sec.5.4) it also makes clear that it is inappropriate to rely on implicit consent (sec.6.2). The RANZCOG statement on Consent and provision of information to patients in Australia regarding proposed treatment is also clear that ‘explicit consent must be obtained for any intimate examination’ (RANZCOG, 2020: 6). Furthermore it goes on to state that the scope of the student’s role should also be made clear, including whether or not they will be examining the patient (RANZCOG, 2020: 6; see also: Medical Board of Australia, 2020: sec.12.4).
Is more law the answer?
As the previous section clearly demonstrates, performing intimate exams without securing the informed consent of the patient involved is contrary to established law in Australia. When performed in the absence of informed consent, such exams likely amount to sexual assault or rape. While there is a need to ensure that students have sufficient opportunity to learn how to perform such exams this imperative cannot be used to circumnavigate the patient’s right to (bodily) autonomy. Furthermore, while some might claim that the educational context of teaching hospitals introduces a degree of uncertainty regarding performance of additional or repeated intimate exams for educational purposes (Salwi et al, 2021), it seems that the guidance offered by Australia’s professional bodies contain no such ambiguity. It is incontrovertible that the patient’s permission must be sought for any additional exams performed by medical students.
In this context we might question whether or not the kind of legislative efforts that have been advanced in various American states (Friesen et al, 2022) would be justifiable in Australia. Certainly, there does seem to be legitimate concern regarding the continued conduct of unconsented intimate exams in the US. However, there is not a comparable degree of evidence that the practice continues in Australia and so one might question the value of specific or targeted legislation.8 It may also be worth pointing out that Friesen et al (2022) present #metoo – a social movement that seeks to engage with the fact that women commonly experience sexual exploitation and abuse – as being relevant to the legislative efforts that have been directed towards the matter of unconsented intimate exams performed for educational reasons. While recognising that the issue is certainly apiece with the sort of matters #metoo seeks to engage with, one might also wonder if legislative efforts that focus on intimate exams simply offer elected representatives an opportunity to respond to a #metoo type concern without the need to expend significant political capital, as would be the case if they were to actually address the far broader, more pressing and highly complex questions raised by #metoo as a social movement.
Such criticism aside, one might nevertheless take the view that establishing a specific law regarding unconsented intimate exams does at least offer a clear message to the judiciary and to a system of justice that commonly permits healthcare professionals a great deal of latitude and autonomy. When it comes to matters of clinical expertise – and to what or does not constitute good medical practice – the courts have tended to defer to the standards that self-regulating healthcare professions establish for themselves. This has arguably created an environment in which the judiciary are generally, and perhaps overly, reluctant to become involved in matters that might be seen as falling within the scope of professional self-regulation. Thus, not only might the establishment of specific laws be taken as indicating a disregard for the practice among elected representatives, it might also be taken as clearly indicating that such matters should be directly addressed if and when they are brought before the courts.9
In the context of an ongoing issue, and a reasonably clear sense that the healthcare professions – and, specifically, the medical profession – have failed to remediate the matter at hand, it may be that such steps would be justified. It is, however, far from clear that unconsented pelvic exams performed for educational reasons continue to be a significant issue in Australia or any of its constituent states. As such, introducing such legislation does not seem justifiable. This does not, of course, mean that we can be complacent. It is certain that such exams have taken place in the relatively recent past; it seems reasonably incontrovertible that they took place less than 15 or so years ago (Rees and Monrouxe, 2011). Furthermore, one cannot say with absolute certainty that they no longer take place or that they will never occur in the future. Indeed, there have been recent cases that are at least proximate to the practice of performing unconsented intimate exams for educational reasons.10 Nevertheless, simply creating more legislation in Australia does not seem to have much to recommend it.
What, if anything, should be done in Australia?
While the absence of clear evidence that Australian medical students continue to be instructed to perform intimate exams without the full consent of the patients involved is reassuring, the issue is nevertheless serious enough to warrant attention. Certainly, some professional guidelines on the matter already exist, and they unequivocally reject the practice. Furthermore, they also indicate that full details of any involvement by students should be clearly and explicitly communicated to patients who should then be given an opportunity to refuse their involvement. However, while such guidelines set the right tone, it is also important that this tone is then communicated to medical students and those involved in their instruction in an ongoing manner. Given the historical occurrence of such exams it seems that the culture of medicine and medical education is such that it is hospitable to the practice. Not only is this concerning in itself, it raises the possibility that unconsented intimate exams may make a return.
Those of us who work within medical schools should, of course, ensure that this possibility does not eventuate. One way to do this is to provide students with instruction on the matter. Indeed, it is not uncommon to find the issue already being addressed as part of the formal ethics, law and professionalism curriculum.11 Another possibility is to adopt institutional policies relating to the presence of medical students in clinical contexts and with regard to observation, interaction and examination. Clear and specific guidance regarding intimate exams should be included in such documents. Given that such policies will largely reiterate what is already expressed within Australian health law, the overarching principles of good medical practice and professional guidelines issued by speciality associations, the creation of such statements need not be considered an overly onerous undertaking.
The creation of formal policies on this topic is also something than could be considered by additional professional associations. For example, it seems to be the case that the Perinatal Society of Australia and New Zealand (PSANZ) does not issue guidelines on the performance of intimate exams, either in general or in regards to best practice when either medical and midwifery students are present.12 Given current concerns surrounding ‘obstetric violence’ in childbirth it would seem appropriate to ensure the proper conduct of intimate exams, both by practicsing professionals as well as all of those who are engaged in professional education and training. The creation and existence of such policies not only provides an opportunity to discuss the topic with students, it also presents those involved in the education of healthcare professionals with a way to demonstrate to students the importance of referring to such guidelines, particularly when one enters new areas of clinical practice as medical students commonly do.
There is a final type of professional association that we might mention in this context, and that is associations of medical students. It is arguably the case that one of the reasons the practice of unconsented intimate exams conducted for educational reasons has continued is that those being asked to perform them are students. The nature of their role is such that they are recipients of instruction issued by those in positions of power and authority, and on whose continuing good will they are dependant. While it does not obviate them of responsibility for their actions, medical students understandably operate on the assumption that their teachers will not instruct them to do something that is illegal or inconsistent with applicable ethical standards. Thus, if they are to question the legality or ethical probity of their instructions it is important that they have an immediate basis for doing so. To a degree, education on this subject can provide the knowledge required. Equally, however, if it was the case that bodies like the AMSA were to create guidelines on the conduct of physical and intimate exams performed by their members (medical students) this would provide further support for those who are placed in an invidious position vis-à-vis conducting an intimate exam for educational purposes without being certain that consent had been granted. In this context it would be particularly useful for guidance to recommend that individual students secure the patient’s informed consent for themselves. The result would be that any student who wishes to question the legitimacy of an intimate exam they are invited to perform can do so by relying on statements issued by a (quasi) professional association to which they belong while also avoiding any unnecessary personalisation of the challenge they present. Of course, relying on guidelines issued by a professional association will not guarantee a positive response. Nevertheless, given that there is never an entirely safe way to challenge those who occupy superior positions in social hierarchies, we should seek the greatest possible degree of protection for students seeking to ensure that they are acting in a manner consistent with the dictates of ethics, law and professionalism, something to which all clinicians and medical educators should also be committed.
Conclusion
We have argued that there is little evidence to suggest that the practice of unconsented intimate exams performed for educational reasons continues to occur in Australia, certainly it does not occur in any widespread or systematic manner. In this context there does not seem to be any justification for further legislation of the sort introduced by various legislative bodies in the USA. Indeed, we have questioned the underlying motivation for such legislative efforts. We have also argued that if we are to ensure unconsented intimate exams performed for educational reasons do not occur then it would be more advisable to undertake initiatives that are more proximate to the location of their occurrence. Thus we recommend that medical schools and teaching hospitals adopt formal policies on the matter that reflect both the current law and existing professional guidelines, such as those issued by RANZCOG and the general standards established the AMC. We also advocate for the creation of further guidelines by relevant professional associations who have not established such instruments. This includes associations of medical students, and while we are wary of placing responsibility onto medical students for a problem that is not of their own making, doing so offers distinct advantages. Nevertheless, we are clear that ensuring the practice no longer occurs in Australia is the collective responsibility of all those involved in medical education.
Notes
In this context an intimate exam primarily refers to a vaginal exam and involves a healthcare professional inserting their gloved fingers into the vaginal canal. See the following section for further explication.
GTAs are women who provide instruction to medical students on female reproductive anatomy and use their own bodies to do so. Given that GTAs seem to have been in use for some time – over four decades (Kretzschmar, 1978) – their mere existence cannot be considered a panacea for the issue at hand. Equally, however, it is clear that this pedagogical approach to teaching gynaecology and intimate exams has much to recommend it (Janjua et al, 2017) and seems likely to have a positive impact on the ethical concerns under discussion. How widespread the use of GTAs might be is unknown. There seems to be plenty of discussion in the academic and medical literature, and there are efforts to promote the practice more broadly (see, At Your Cervix www.atyourcervixmovie.com). As far as we can ascertain, it is not uncommon to find GTAs being employed within Australian medical curricula. Certainly, we have personal knowledge of the fact that they form part of the medical education delivered at ANU, while the website of the Melbourne Medical School indicates that they have employed them since 2000: medicine.unimelb.edu.au/engage/community/employment_opportunities/cta.
It is worth acknowledging that while the kind of exams we are focused on here involve the female reproductive system, and are therefore predominantly performed on patients who are women, some affected patients may also be men.
It is, perhaps, worth pointing out that students should not be confined to examining the various pathologies they might expect to encounter, they should also have the opportunity to examine patients who do not have a pertinent diagnosis. Ideally, they should also have the opportunity to examine pregnant women (Symonds, 2018).
The ACT was not, of course, created until 1959. However, having previously formed part of NSW, the jurisdiction inherited the previously applicable law. Thus, the Crimes Act 1900 (NSW) became the Crimes Act 1900 (ACT). Subsequent amendments in both NSW and the ACT have, of course, resulted in a degree of divergence and difference.
The Act continues: applies force includes the case of applying heat, light, electrical force, gas, odour, or any other substance or thing whatever if applied in such a degree as to cause injury or personal discomfort.
In this context carnal knowledge means the penetration of the vagina or anus with a penis.
A reviewer notes that patients do not always recognise when they are being wronged. Here one might point to the internal examinations performed during childbirth. Recent work has suggested that while many women feel uncomfortable with such exams, they are often unaware that they can refuse, that their consent should be sought or that they may have been wronged (Pickles and Herring, 2020). The suggestion is that the fact students are not reporting being asked to perform unconsented intimate exams may not mean it does not occur, especially if students have reason to think that they might face negative consequences if they make a report. While we appreciate that we cannot be certain that the practice never occurs in Australia, there does seem good reason to suppose that it is not an ongoing issue as it seems to be in the USA.
It is arguably the case that something like this recently occurred in New South Wales (NSW). In 2021 the Parliament of NSW passed the Crimes Legislation Amendment (Sexual Consent Reforms) Bill 2021. As of 1 June 2022, the NSW Crimes Act (1900) was revised such that various matters relating to sexual consent were clarified and while the fact that consent to sexual intercourse could no longer be given implicitly, the primary function of the changes are to clarify existing law rather than the alter it in any fundamental sense. It is also worth noting that the amendment explicitly excludes intimate exams performed by healthcare professionals in the course of clinical practice from its scope. No doubt this should be taken as an indication of the additional difficulties that such legislation would have faced if its scope had not been delimited in this way, rather than conveying any implication that explicit consent to intimate exams should not be sought from patients in every instance.
For example, a surgeon and anaesthetist were recently suspended for performing a rectal exam unnecessarily and for behaving in an unprofessional manner while doing so (Foster, 2022). In addition, a medical student who performed an unsupervised vaginal and rectal exam on a patient without being instructed to do so and without gloves was acquitted of sexual assault in 2020 (Noyes, 2020).
It is explicitly discussed as part of the MChD curriculum at ANU as part of the ethics, law and professionalism curriculum delivered by one of this article’s authors.
Given the differing structures of these degree programmes it may be that the best practice differs slightly between medical and midwifery students. The latter being far more embedded in practice than the former, particular towards the end of their respective degree programmes. In short, by the end of their degree midwifery students will have acquired a greater degree of legitimacy and their participation in the field of practice is less peripheral than is the case for medical students. On the concept of legitimate peripheral participation see Lave and Wenger (1991).
Funding
The authors received no financial support for the research, authorship, and/or publication of this article.
Conflict of interest
The authors declare that there is no conflict of interest.
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