TORONTO - The latest guidelines governing pelvic examinations for women under anesthetic leave patients less protected than they were under the previous rules, say legal analysts.
In an article in this week's Canadian Medical Association Journal, law professors say an updated policy statement on the issue requires explicit consent for medical students, such as interns, to perform pelvic examinations on women while they are unconscious.
But the policy does not include medical residents, notes co-author Prof. Elaine Gibson, associate director of the Health Law Institute at Dalhousie University.
A guideline penned in 2006 by the Society of Obstetricians and Gynaecologists of Canada (SOGC) and the Association of Professors of Obstetrics and Gynaecology (APOG) stated that "medical trainees" did not require explicit prior patient consent for pelvic exams performed for educational purposes.
In 2010, a public controversy arose over that policy. Critics argued that it meant women could unknowingly have pelvic exams during a gynecological procedure without having given their prior consent.
Canadian medical schools responded that patients are aware that trainees at teaching hospitals will participate in their care, and that broad consent forms signed by patients on admission include a provision that students may be involved in their surgery, including medically necessary examinations.
Patients have therefore either explicitly or implicitly consented to a pelvic exam by a student, the schools argued.
However, a 2009 study suggested many women were unaware a medical trainee might conduct a pelvic exam while they were under anesthetic for a gynecologic procedure, such as tumour removal, a hysterectomy or a tubal ligation. That study found only 19 per cent of those surveyed were aware that a medical student might conduct a pelvic examination, and 72 per cent thought they would be asked to consent first.
In response to the criticism, the SOGC and APOG revised the guideline in September 2010, dictating that "medical students" must obtain explicit prior consent from patients to perform pelvic exams. But no mention was made of residents, who have earned their degree as medical doctors, said Gibson.
"What has happened is that from their former policy statement, they have improved the requirement of consent for interns," she said in an interview from Halifax. "In other words, interns now need to get consent from the women before performing the pelvic exam while the woman is unconscious.
"But they have reduced its impact on residents."
The authors say there is no logical or legal justification for residents to be exempt from the requirement to obtain patient consent.
Under Canadian law, performing such an invasive exam without consent is considered battery, said Gibson, who co-wrote the critique with fellow Health Law Institute professor Jocelyn Downie.
"We think either residents should be added into the 2010 policy statement or that a separate statement be set out for the residents that would require consent for any pelvic exam performed for training purposes or partially for training purposes," Gibson said.
In a joint statement issued Monday, the SOGC and APOG responded that they disagree with the authors' legal interpretation of their policy statement.
"Virtually all examinations conducted by medical students are for educational purposes. As a result, they require the supervision of an appropriately qualified health-care professional, which could be a resident," say the organizations. "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 SOGC and APOG "feel strongly" that the existing policy statement adequately addresses all concerns expressed by the authors.