Vaginal Examinations, Consent & COVID-19

By Anna Nelson (@Anna_Nelson95)

As with all aspects of the NHS, a number of changes have been enacted in the operation of maternity services as a result of the COVID-19 pandemic.  While many of these changes are important and justifiable in order to protect the safety of pregnant people, maternity staff and newborns, it is vital that any (incidental) adverse implications to these policies be addressed

This blog will examine the one such change; the policy which has been implemented by many NHS Trusts (see eg. Nottingham University Hospital and Oxford University Hospitals) which provides that pregnant persons will only be admitted to the labour ward once labour has been “confirmed as established”. Only once a pregnant person has been admitted to a labour ward (therefore only where established labour has been confirmed) will her birth partner be allowed to join her in the labour ward. Where an antenatal ward is available to those in the early stages of labour, pregnant people who choose to wait there must do so alone as birth partners are only permitted on the actual labour ward.

Clearly no doctor or midwife wants to perform a VE against the wishes of the pregnant person and when that is the case would much rather find an alternative means of establishing whether the ‘admission requirements’ for the labour ward are met. But there is a risk that pregnant people will be coerced into consenting to VE if this alternative is not made clear to them. If these policies are not communicated clearly enough they may have the effect of coercing pregnant people into consenting to vaginal examinations (VEs) they do not want, as this is often the method used to establish labour. Though VEs can be seen as the simplest way of confirming labour, there are other methods which can be deployed; the pregnant person’s behaviour can provide midwives with a great deal of information about the progress of labour and some women develop a purplish line which develops from the anus up between the buttocks the length of which often roughly corresponds to dilation.

The Potentially Coercive Nature of COVID-19 Admission Policies

This possible problem arises from coexistence of two policies:

  1. That admission to the labour ward and the right to have one’s birth partner present is contingent on ‘confirming established labour’
  2. That the routine and accepted protocol for confirming established labour is the use of a VE

Though it remains the case that pregnant people have an absolute right to refuse a VE,  the coexistence of these two policies may lead pregnant people to believe that if they wish to have their birth partner with them, they must consent to the VE. In this way these policies may result in pregnant people feeling coerced into consent to these treatments.

While coerced treatment or examination is clearly problematic itself, this is particularly true of coercion to consent to a VE.  This is due to the gravitas of some the reasons which can be the impetus for the refusal of consent to a VE, such as sexual assault, or previous birth or medical trauma.

Not only is perceived coercion distressing for pregnant people, it is legally and ethically problematic.  The validity of informed consent, absent which any touching amounts to an unlawful assault, is undermined when coercion is present; a ‘forced’ choice is not an autonomous one.

This issue has been acknowledged by Birthrights, a leading maternity care charity.  They have created a page of COVID-specific advice to make sure that birthing people are aware of their rights.  This page notes that everyone has an absolute right to refuse a VE.  This implies that Birthrights perceived a real risk that the policies implemented might lead birthing people to believe that they did not have such a right.

Further, Birthrights have entered into communication with NHS Lothian about the use of VEs by this trust ‘to assess whether woman can be admitted and can be joined by partner”.  In doing so, they have expressed the same concern that I seek to highlight here; that pregnant people will feel ‘coerced to accept VE’.

The Importance of the Birth Partner

The potential for pregnant people to feel coerced into accepting such an examination if they believe it is the only way to access their birth partner (or the only way which doesn’t involved a drawn out conflict while labour progresses) is compounded when we understand how important the presence of a chosen birth partner is for many.

The importance of having a trusted birth partner attend labour has been repeatedly emphasised throughout this pandemic by bodies such as the WHO and the Royal College of Obstetricians and Gynaecologists.  The RCOG state that birthing people should be “encouraged to have a birth partner present” during labour as this is “known to make a significant difference to the safety and wellbeing of women in childbirth.”

Many pregnant persons feel very real and very understandable anxiety about being separated from their partner at any point during the birthing processes, especially during the COVID-19 pandemic.  Therefore, the belief that a VE is the only way to ensure their birth partner is permitted to remain with them is a particularly coercive one.

Understanding this Issue in Context

For a long time, there were significant problems in the UK with pregnant persons reporting that they had had VEs imposed upon them during labour, without having been asked for consent or, more worryingly, despite denying consent.  People also highlighted/reported feeling a great amount of pressure from the staff attending their birth to consent to the VEs.

One woman complained to the GMC about having been subjected to two unconsented VE despite having shouted ‘no consent’ repeatedly prior to these occurring.  In her article for the Telegraph, Milli Hill (of Positive Birth Movement) highlighted the troubling experiences of several women.  These highlighted two types of problematic conduct which pregnant persons might find themselves facing; blatant, egregious abuse in which consent was simply ignored or pervasive systematic patterns of routinely not asking for consent prior to VEs.  The former is illustrated by the experience of this woman who commented that she “asked the doctor to stop, several times, and he didn’t”, while the latter is reflected in the experience of this woman who noted that “consent was neither sought nor given when I was in labour.”  Perhaps the most damning statement came from the woman who reported:“I knew I could refuse. I put it in my birth plan. But that was never read. I was told they wouldn’t admit me to the labour ward without one. Then later they just did them without my consent. Consent in childbirth is a joke.”

The failure to understand the critical importance of gaining consent for such an intimate and invasive procedure is further illustrated by the once-routine practice of allowing medical students to ‘practice’ VEs on patients who are anaesthetised for routine gynaecological operations – without ever asking the patient for consent to this.  It is worth noting that while such a practice is no longer widespread, and there is a greater understanding that this is unacceptable, research indicates that it has yet to be completely eradicated.

However, as a result of a laudable concerted effort over the past decade to ensure that pregnant persons are treated with dignity and respect during the birthing experience, a great deal of progress has been made towards ensuring that all VEs are properly consented.  In their 2013 Dignity in Childbirth study Birthrights noted that:

“There was a consensus across the midwives that maternity care practitioners practice had greatly improved in gaining consent (particularly for vaginal examinations) and that it was now rare to fail to obtain consent”

It is incredibly important to acknowledge this contextual background when considering the potential the COVID-19 related policies might result in some pregnant persons being coerced into accepting a VE; there is a real risk that some of the incredible work which has been done in building trust in a maternity service which centres on, and protects, the dignity of the pregnant person might be undone.

Moving Forward

It is vital that we do not assume consent to VEs, in practice or in policy – even during a pandemic.  Not only is this procedure invasive, it can very uncomfortable and can also cause considerable distress for those with history of birth trauma or sexual assault.

Clearly Trusts do not intend to coerce consent; either they have not considered that this is a side effect of the policy they do have (in which case the policy needs to be rethought) or they have simply failed to convey their policy properly, and the language they have used implies a coercive need to consent to such examinations in order to gain admission to the labour ward for themselves and their birth partners which does not actually exist in reality.

It is, therefore, essential to ensure that policies relating to the admission of the pregnant person and their birth partner to the labour ward are worded, understood or communicated clearly. This is necessary to avoid causing considerable excess distress to birthing people at an already anxious time, and to avoid damaging the very trust in maternity services that many organisations and individuals have worked so hard to build.

 

See more blogs by Anna Nelson:

Home-Birthing and Free-Birthing in the era of COVID-19

International Surrogacy During the COVID-19 Pandemic  

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