American hospitals must now obtain written informed consent from patients before they undergo intimate physical exams, including those performed under anaesthesia – otherwise they risk losing their federal funding.
That’s according to new guidance from the US Department of Health and Human Services, referring to breast, pelvic, prostate and rectal exams done outside medically necessary procedures.
For decades, medical students have reported giving unauthorised intimate exams to patients while they are unconscious, sometimes even during unrelated procedures, such as a pelvic exam performed during stomach surgery.
These exams can be used for educational purposes, to give medical trainees a chance to hone their technique on living people. During a colon operation, for example, students might learn how to do a rectal exam by repeating one performed by a surgeon, reports ScienceNews.
But in recent years, outrage over the practice has boiled up in the public, and patients, medical associations, lawmakers and doctors have strongly voiced ethical concerns.
“Such exams are a lingering stain on the history of medical education,” wrote physician Eli Adashi from Brown University in JAMA several years ago.
Those concerns helped drive HHS’ decision to develop the new guidance, says a spokesperson for the department’s Centres for Medicare & Medicaid Services.
The guidance, released last month, clarifies the process of obtaining informed consent from patients before sensitive exams. Informed consent has always been required before sensitive exams, the spokesperson said, but the new guidance now stipulates that hospitals must also obtain written consent.
This updated guidance was described as a “landmark achievement in patients’ rights” by Lori Bruce, a bioethicist at Yale University. Taking the time to ask people, and obtain consent, before doing something to their bodies, she added, upholds one of hospitals’ sacred responsibilities: to respect their patients.
Until now, guidance for hospitals had been somewhat murky. For years, medical associations, including the Association of American Medical Colleges and the American College of Obstetricians and Gynaecologists, have said these exams should happen only with informed consent.
But these were only recommendations: actual legal statutes vary greatly by state.
Current laws represent a hodgepodge of regulations on what exams are covered, who is protected and what is required of examiners.
With the new federal guidance, hospitals must comply or risk their participation in Medicare and Medicaid programmes. That means hospitals would no longer receive money from those programmes, which pay out hundreds of billions of dollars each year.
Tethering funding to compliance is key, says University of Chicago Medicine obstetrician gynaecologist Julie Chor. “It will be even more motivation for people to actually do what is right.”
It’s still unclear exactly how often unauthorised exams occur. There’s no official count from hospitals, and medical student training isn’t always documented in patients’ charts. But Bruce and others in the field have scrutinised the scope of the problem, and it may be more widespread than originally thought.
A 2023 survey of hospitals affiliated with medical schools found that nearly 20% did not explicitly obtain patient consent for pelvic exams done under anaesthesia, researchers reported in the Journal of Women’s Health.
In a national survey of more than 1 000 people published in 2022 in the Hastings Centre Report, Bruce’s team found that 1.4% of respondents had reported receiving unauthorised pelvic or prostate exams within the five previous years.
That might seem small, she says, but when extrapolated to the US adult population, it adds up to more than 3.5m people. “Even that is frankly, very likely to be a conservative estimate,” she said.
Men were slightly more likely than women to report an unauthorised exam, and black respondents nearly four times as often as white people.
Patients generally willing
There’s a simple solution that both respects patients’ bodily autonomy and lets medical students keep up with training: just ask patients for their consent.
There have been concerns in the medical community that patients might say no, limiting teaching opportunities. But in colon and rectal surgeon Lauren Wilson’s experience, most patients understand that trainees are still learning how to practise medicine, and don’t object to being involved in the process.
Having that conversation about consent is crucial, said Wilson, who works at Dartmouth Hitchcock Medical Centre.
Her experience is borne out by data. When asked, almost 86% of nearly 4 000 gynaecology patients consented to receiving a pelvic exam under anaesthesia by a medical student, researchers reported last year, while another study found similar results. Of 274 patients seeking abortions, 88% accepted such exams, the team reported in Contraception.
Though Chor said she finds the argument that requiring written permission will impair student learning abhorrent in the first place, her work helps to debunk it.
“It really refutes the premise that people are not interested in participating in educational exams.”
Informed consent
JAMA article – Teaching Pelvic Examination Under Anaesthesia Without Patient Consent (Open access)
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