Should Michigan law require consent before pelvic exams are performed on unconscious patients?

Lawmakers reintroduce legislation prohibiting intimate exams without consent

FILE - A hospital bed is seen in a COVID-19 unit at Providence Holy Cross Medical Center in the Mission Hills section of Los Angeles, Nov. 19, 2020. (AP Photo/Jae C. Hong, File) (Jae C. Hong, Copyright 2020 The Associated Press. All rights reserved.)

In Michigan, it is legal for medical students to practice pelvic and prostate exams on patients who are unconscious or under anesthesia without the patient’s knowledge or consent.

The exams are intended to be educational, but the practice has raised some ethical concerns. These exams were often seen as an effective tool to teach medical students, but some researchers feel it’s a violation of a patient’s bodily autonomy and trust.

Since at least 2019, Michigan lawmakers have been pushing to prohibit this practice. Most recently, a bill was introduced in the Senate. Could this be the legislation to make it to the governor’s desk?

Pelvic exams under anesthesia

In some situations, health care providers must perform a pelvic exam before surgery to fully understand a person’s anatomy. The exams are performed both before and after the person is sedated.

At some teaching hospitals, medical students can participate in pelvic exams on patients who are under anesthesia. This practice becomes controversial when consent is not obtained prior to the exams.

Phoebe Friesen, a bioethicist at McGill University, has written and taught about these procedures for many years.

She told PBS that it is often seen as a “practical” and “efficient” way to teach medical students how to perform a pelvic exam. She said that while there is no intention of violation in these cases, there’s still “a violation of bodily rights and autonomy and trust.”

Could this practice lead to what some have labeled “ethical erosion?” In a 2018 Slate article, Friesen cited research and wrote that “while first-year medical students largely find the idea of practicing pelvic exams on women under anesthetic to be morally problematic, the longer they spend in medical school, the less they see it as an issue.”

Friesen said research also found that 100% of women said they would prefer to be asked before their bodies are used as teaching tools. She wrote that some women said they would feel as though they’d been assaulted if they weren’t consulted before the exam. Most patients who have undergone an invasive exam in this manner may never know it happened to them.

Previous: The issue of consent and performing pelvic exams on women under anesthesia

Will Michigan lawmakers make unauthorized pelvic exams illegal?

There are 21 states that have made unauthorized pelvic exams illegal, according to the Illinois College of Law. That leaves 29 states without regulation. Michigan is one of those 29 states.

There have been several attempts to prohibit unauthorized pelvic exams on patients who are unconscious in Michigan. Despite broad support, no legislation has made it into law.

Former state Rep. Pamela Hornberger (R-Chesterfield Township) introduced House Bill 4958 (2019) and House Bill 4194 (2021). State Sen. Paul Wojno (D-Warren) introduced Senate Bill 1081 (2020) and Senate Bill 0007 (2021). None of these bills made it to the governor’s desk.

“In 2020 both my bill (SB 1081) and Rep. Hornberger’s bill (HB 4958) went to the senate chamber to be placed on the senate calendar for consideration. Rep. Hornberger’s bill passed the House 108-0. It is not uncommon for great legislation not to move through the entire process and need to be re-introduced. As both chambers at that time were under a Republican majority, their leadership had full control as to when these bills could be placed up for a vote,” Wojno said.

On Jan. 26, Wojno introduced Senate Bill 0044 (2023). This bill marks the third time he has worked on introducing this type of legislation.

If Senate Bill 0044 does become law, it would become illegal to perform “invasive bodily examination on an anesthetized or unconscious patient,” except in certain circumstances. The bill is paired with Senate Bill 0045, which adds a definition for “invasive bodily examination.”

“This is a very important issue for both medical students and patients. A survey of 101 medical students from seven major American medical schools found that 92% reported performing a pelvic exam on an anesthetized female patient. Of that group, 61% reported performing this procedure without explicit patient consent. In this survey, a total of 47% of medical students that conducted Exams Under Anesthesia (EUAs) without consent were uncomfortable with how their schools handled these exams,” Wojno said.

The most recent bills were read in the Senate and referred to the Health Policy Committee. Sen. Kevin Hertel (D-St. Clair Shores) is the committee chair. A spokesperson for Hertel said the committee expects to take the bills up in April to coincide with Sexual Assault Awareness Month.

“Hertel is looking forward to working with the bill sponsors and ensuring our state laws work to prevent sexual violence in all forms,” the spokesperson said.

Wojno said if the bills move through the state Senate and into the House, supporters will work with House leadership to move them through the legislative process as quickly as possible.

“I would love full support. In the past, Rep. Hornberger’s bill received full bi-partisan support in the House, and my Senate bill received full bi-partisan support in committee. I can see these bills having strong support on both sides of the aisle when they are voted on,” Wojno said.

The Michigan Health and Hospital Association has supported previous legislative attempts to prohibit unauthorized intimate exams.

“(MHA) has a history of supporting these bills in past sessions as the legislation as written protects patients from bad actors while outlining when appropriate care can be legally performed,” MHA Communications Director John Karasinski said.

The Michigan Coalition to End Domestic and Sexual Violence is a nonprofit organization made up of over 70 agencies that serve survivors of domestic and sexual violence in Michigan.

In a statement, MCEDSV said the organization appreciates and supports this latest legislative effort to “end a powerful form of sexual violence.” The full statement is below:

“Consent is a central tenet for domestic and sexual violence service providers. Further, informed consent is a legal and ethical duty of the medical profession. If performed without consent, invasive bodily examinations create harm, dehumanization, and trauma in the patient. A violation of dignity, especially within the confines of the trusted doctor-patient relationship, can lead to lasting damage and often requires a long road to recovery. There is great value in laws that strengthen and support doctor-patient trust and seek to prevent future violence. MCEDSV appreciates and supports SB 44, SB 45, and the efforts of those that seek to end a powerful form of sexual violence.”

Pelvic exam consent policies in Michigan hospitals

There is no firm data on pelvic exams under anesthesia in medical schools in Michigan, according to Wojno.

“Some schools are changing their standards, like the University of Michigan, which adopted a policy in 2019 requiring consent forms to be signed by a patient. If signed, it then requires medical students to meet patients before performing pelvic EUAs, and requires doctors to explain student involvement,” Wojno said.

Michigan Medicine has a clear and easily accessible institutional policy. Pelvic exams are only performed if it is part of the procedure and requires informed consent before a student performs an educational pelvic examination.

Local 4 reached out to several health systems and requested statements or information about a policy regarding unauthorized pelvic exams on unconscious patients.

Michigan Medicine confirmed the policy linked above and a spokesperson for Henry Ford Health said they have a policy similar to Michigan Medicine’s policy. The five other teaching hospitals Local 4 reached out to have not provided a statement.

Poll: Should unauthorized pelvic exams on unconscious patients be prohibited in Michigan?

View Senate Bill No. 44 (2023)

About the Author:

Kayla is a Web Producer for ClickOnDetroit. Before she joined the team in 2018 she worked at WILX in Lansing as a digital producer.