Bill Prohibiting Invasive Examinations of Unconscious Patients without Informed Written Consent Advances

Trenton – Legislation sponsored by Senator Fred Madden, that would expressly prohibit health care practitioners from performing invasive examinations of an unconscious patient without informed written consent, was approved by the Senate Health Committee.

“Trust is a vital component in the relationship between patient and practitioner. Invasive examinations should never be performed on someone unknowingly,” said Senator Madden (D-Camden/Gloucester). “The practice of conducting such exams is reprehensible and it is shocking to learn that such a violation of a patient’s body even takes place in any medical facilities today. This legislation would put the patient back in control over what is happening to their body during such a vulnerable moment.”

The bill, S-1771, would prohibit the invasive examination of a patient while the patient is under general anesthesia or otherwise unconscious without the patient providing informed written consent to the invasive examination.

Under the bill, “invasive examination” would include any visual, physically touching, or mechanical inspection of the patient’s reproductive organs, rectal cavity or breasts. “Informed consent” would mean an affirmative authorization to perform an invasive examination, which authorization would not be valid unless the health care practitioner first provides the patient with a full description of the nature and attendant risks associated with the proposed invasive examination.

Currently, many medical students are taught how to conduct pelvic examinations using the bodies of anesthetized, unconscious patients. The practice most commonly affects women, but can also impact other people with vaginas, including transgender men, transgender women, and people who identify outside the gender binary, and may be particularly traumatic for survivors of sexual assault. Evidence suggests it may also disproportionately affect women of color and women with lower incomes, because the majority of safety net hospitals are also teaching hospitals.

Although surveys indicate that between 70 and 100 percent of women expect their consent to be requested prior to a pelvic examination for educational purposes, in the vast majority of cases, women are not asked for, and have not provided, express consent to their bodies being used for teaching purposes. Surveys show a majority of medical students also express discomfort at the practice, but feel pressured not to resist for fear of risking their academic or professional prospects.

The practice of conducting pelvic exams on nonconsenting patients has been banned in ten states, including Delaware, California, Hawaii, Illinois, Iowa, Maryland, New York, Oregon, Utah, and Virginia. Both the American Medical Association and the American College of Obstetricians and Gynecologists have renounced the practice and affirmed the need for informed consent for medical student involvement in patient care.

The bill was cleared from committee by a vote of 6-0.