This blog forms part of a series of blogs that showcase the important contributions published in Women’s Birthing Bodies and the Law: Unauthorised Intimate Examinations, Power and Vulnerability (2020). Jonathan Herring’s chapter, ‘Implied Consent and Vaginal Examination in Pregnancy’, offers a much-needed explanation about why implied consent is not an acceptable form of consent for vaginal examinations during labour.
I suspect the primary reason that unwanted vaginal examinations take place during pregnancy and labour is that the medical professionals involved assume they have implied consent to undertake them. They may well assume that a woman in pregnancy or labour consents to ‘any treatment or examination appropriate for her baby’. This is misguided. In my chapter I argue that express consent is required to a vaginal examination in all cases where the patient has the mental capacity to consent.
I am not rejecting the idea of implied consent in other contexts. A person who climbs into a taxi and who asks to be taken to the station will not get very far if they later claim they never explicitly promised to pay for the journey. Their behaviour clearly indicates that they have consented to undertake that obligation. My argument is that implied consent is insufficient for a vaginal examination. Before going any further, I should emphasise it is not my argument that a medical professional who proceeds without having obtained express consent is committing a criminal offence. In most cases they believe they have effective consent and that would be a defence to any criminal charge.
Consent operates to justify an act which would be otherwise wrong. We do not need consent for things which are not wrongful (e.g. to just look at someone’s car) but we need their consent to do things which would otherwise be wrong (e.g. to give them an injection). Consent can ‘transform’ the act from a wrongful one into one which is legally permissible. I will use the terminology ‘a prima facie wrong’ to capture an act which in itself is wrong, but can be justified and permitted if there is a good reason for doing so. Cutting your flatmate’s hair is a prima facie wrong: you cannot just do it for fun. However, it can be justified if they consent to the haircut.
It is generally agreed that a vaginal examination is a prima facie wrong and consent is required. We have a general right to control access to our bodies. In our society most people keep their genitals covered and will expose them only in private. So, looking at another’s genital area without consent shows a lack of respect for their dignity.
How does consent justify a prima facie wrong? I argue that if B consents to A doing an act which is prima facie wrongful it justifies the act if A can rely on B’s assessment that the act is overall in their best interests. A can, in effect say, ‘B knows what is best for themselves. Their consent shows that they have considered the issue and decided that the act will benefit them. I have no reason to disagree and will rely on their assessment.’ If that is accepted as an explanation for how consent ‘works’ to justify the otherwise wrongful act, this has a number of consequences for consent to vaginal examinations:
We are now in a better position to see why implied consent is insufficient to authorise a vaginal examination. Anything short of explicit consent will retain a degree of ambiguity. It cannot lead the health care professional to be secure in assessing that the patient has determined to do their act, that is needed to justify a prima facie wrong. This is all the more so as express consent can easily be obtained to resolve any ambiguity. An analogy can be drawn with sex. Someone wanting to have sex with their partner cannot rely on a guess that their partner would consent, or rely on the fact that they have not voiced opposition. Clear consent is required. So too in the context of a vaginal examination.
Read more from Women’s Birthing Bodies and the Law: Unauthorised Intimate Examinations, Power and Vulnerability