Albany, NY – Assemblymember Amy Paulin (D-Scarsdale) announced that her bill to require the informed consent of the patient for any health care procedure of examination, including those done in the course of medical education or training (A. 4988 / S. 3353), passed the New York State Assembly on Thursday. It will now proceed to the New York State Senate, where Senator Jessica Ramos (D-Queens) is the sponsor.

The bill would make it clear that any health care procedure or examination performed in the course of the education or training of medical students or resident physicians must still require the informed consent of the patient. The bill addresses the still too common training practice of medical students or residents performing pelvic, rectal, or prostate exams on patients who are unconscious and anesthetized for an unrelated surgical procedure and who have not explicitly consented to the exam.

“There’s a surprising disconnect between the culture of medicine, where intimate exams without explicit consent of the patient are considered a defensible, standard practice, and the rest of us, who are horrified that a trainee could be allowed to perform a pelvic or rectal exam without asking,” said Assemblymember Amy Paulin. “Physicians and bioethicists maintain that informed consent is essential to trust in the doctor-patient relationship. We should insist on informed consent for all exams and procedures, including those done for educational purposes, and send a message that patients’ rights are a central value in medical education”

“For decades now, we’ve heard concerns about the practice of pelvic exams being performed on unconscious and unconsenting women, yet the practice is still widespread in teaching hospitals,” said Senator Ramos. “It’s not a surprise that survey after survey shows that women and men want to be asked and have their rights and their autonomy respected, especially in a personal health care setting. By passing this bill, we would make explicit, informed consent the bedrock of academic medicine in New York.”

The questionable ethics and public discomfort with the practice of trainees performing pelvic, rectal or prostate exams on unconscious patients when explicit, informed consent has not been granted has been documented for years in medical journals, news outlets like Forbes, Slate and The Chicago Tribune, and in public hearings at the state and local level, including a hearing before the Federal Trade Commission.

Informed patient consent has been considered a central value of medical ethics for centuries. Although procedures done for the purpose of education and training have sometimes been treated differently on a state-by-state and hospital-by-hospital basis, the ethical and policy guidelines of the American Medical Association (AMA) currently state that “patients’ … refusal of care by a trainee should be respected in keeping with ethics guidance.” The Joint Committee on the Accreditation of Hospitals stated as far back as 1984 that participation in clinical training and education should be voluntary for patients.

Since that time, although the practice has continued in many teaching hospitals, a steady drumbeat of statements by medical professional societies has clearly enunciated the need for change on this issue. In 2001, the AMA Council on Ethical and Judicial Affairs formally recommended that “where the patient will be temporarily incapacitated (e.g., anesthetized) and where student involvement is anticipated, involvement should be discussed before the procedure is undertaken whenever possible.” In 2003, the Association of American Medical Colleges declared that “performing pelvic examinations on women under anesthesia, without their knowledge or approval … is unethical and unacceptable” – a reversal of what had been their prior position on the practice. The Committee on Ethics of the American College of Obstetricians and Gynecologists (ACOG) has also unambiguously stated that exams performed on unconscious patients in support of medical education and training should only take place when “specific informed consent” has been obtained.

In addition to being potential violations of trust and patients’ rights, the practice of avoiding clear requests for consent in educational settings may well be unnecessary. A January 2010 patient survey published in the Journal of Obstetrics and Gynaecology Canada found both that 72% of female patients expected to be asked before their bodies would be subjected to pelvic exams while unconscious, and that 58% would agree to the procedure if asked for their consent.

“Already, California, Virginia, Hawaii, Illinois, and Oregon have made it illegal to perform a pelvic exam on a woman who has been anesthetized and has not given explicit consent to the examination,” said Assemblymember Paulin. “That’s important, but it doesn’t help men who may be subjected to rectal or prostate exams while unconscious that they also didn’t consent to, or any of the other situations where custom and culture have allowed trainees to touch an unconscious patient without their foreknowledge. Our bill protects them as well.  I am grateful to my colleagues in the Assembly for passing this important legislation on behalf of patients’ rights and autonomy, and hopeful that the Senate will join us.”