“Implied” Consent

In today’s Globe and Mail, Andre Picard writes “Time to end pelvic exams without consent.” I read the article, and not one thing about it surprised me. No shock, no horror.

Please don’t misread me. Performing repeated unnecessary gynecological exams on unconscious women without their knowledge is shocking, and horrifying, and absolutely a violation of the highest order. But it’s not surprising to me, and here’s why:

It’s happened to me.

Almost 10 years ago, I’d been in labour for a few days. I was exhausted, not having been able to sleep through the back labour that was doing nothing to actually move the almost-baby out of me.  I went back and forth for a great deal of that Tuesday afternoon at home: can I breathe through this and have the healthy happy home birth I’d planned, or had I just run out of energy to keep going at this rate? I eventually decided that the hospital (and whatever came with it) was the choice I needed to make.

At that time, my midwife didn’t have privileges that extended to maintaining care of a woman after she’s had an epidural started, which made me think about whether I could hold out and not get one after all. After almost falling over from the mega contraction, I agreed to those terms. A nurse came into the labour and delivery room and shoved a piece of paper under my hand and a pen into my hand, saying: “You have to sign this, or we can’t do anything for you.”


I remember so clearly thinking to myself, tears in my eyes from the pain, “If I write in clear letters ‘I AM NOT SIGNING THIS’ on the signature line, what are the chances I’ll get treatment?” Something really bothered me about having to sign this general consent form, because I didn’t feel like I was being given a choice. “You have to agree, or you don’t get health care” – being forced to agree to something isn’t giving consent.

I signed it with my name in the end, because I was tired of fighting. I was resigned to having this baby in the hospital, hooked up to monitors, filled to the gills with drugs. I just wanted it over so I could get the hell out of there with my baby.

Within about 15 minutes of getting the epidural in, I fell asleep for close to an hour. I awoke from my nap to find that my Labour and Delivery nurse was just removing her hand from my vagina. She smiled at me and informed me that I was fully dilated, and could start pushing at any time.

Let’s read that again. I awoke from my nap to find that my Labour and Delivery nurse was just removing her hand from my vagina.

I know that dilation checks are done routinely on labouring women, to determine how the cervix is doing with the contractions. I get it. I think some care providers do it a little too routinely, but that’s not my soapbox today. In spite of the medical sense it makes to do the checks, it is still NEVER OKAY TO DO IT WHEN A WOMAN IS ASLEEP AND CANNOT GIVE CONSENT.

I want to draw your attention the Health Care Consent Act 1996 (emphasis mine):

The following are the elements required for consent to treatment:
1. The consent must relate to the treatment.
2. The consent must be informed.
3. The consent must be given voluntarily.

4. The consent must not be obtained through misrepresentation or fraud. 1996, c. 2, Sched. A, s. 11 (1).

Consent to treatment may be express or implied. 1996, c. 2, Sched. A, s. 11 (4).

Unless it is not reasonable to do so in the circumstances, a health practitioner is entitled to presume that consent to a treatment includes,

(a) consent to variations or adjustments in the treatment, if the nature, expected benefits, material risks and material side effects of the changed treatment are not significantly different from the nature, expected benefits, material risks and material side effects of the original treatment; and

(b) consent to the continuation of the same treatment in a different setting, if there is no significant change in the expected benefits, material risks or material side effects of the treatment as a result of the change in the setting in which it is administered. 1996, c. 2, Sched. A, s. 12.

So, according to the law, I did consent to the continuation of the same treatment. Except that there was a significant change in the expected benefits, and material side effects of the treatment. Rather than simply recovering from a rough birth experience, I also had to deal with the very real feelings of having been violated by someone in a position of trust. For me, the experience of having a stranger’s hand inside my vagina is no less a sexual assault just because she’s in scrubs and getting paid at the time. Had she nudged me awake and let me know that it was going to happen (or, you know, ASKED me for my consent first), I would have said yes. Just like the women polled in the study discussed in the Globe and Mail article. Almost 70% of women polled said they’d say yes to an exam by a student, IF ASKED. And 72% said they’d require/expect to be asked for consent before it happened (which makes me wonder about why the other 28% would be okay with it, but so it goes).

I have no argument with medical students needing to learn practical skills. I do, however, object to the placement of women in this equation. Have any similar studies been done to determine if men are being examined while unconscious in similar numbers? My guess is no. Were it yes, it still would be very very wrong, but my suspicion is that just  like other sexual assault statistics, women are going to be overrepresented in the data.

Oh, btw, I have never ever signed a blanket consent form (for myself or the kids) since, and we’ve never been denied treatment.


1 Comment

  1. January 29, 2010 at 7:41 pm

    […] Living My Social Work – “Implied” Consent […]

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