When a woman says "no", she means "no".
Imagine this.
You are a hospital doctor, working in obstetrics. You are called to the Labour Ward by the midwifes. Ms Smith is a 29 year old barrister and is in labour. Her partner, aged 32, and also a barrister, is with her. It is her first baby and she is towards the end of the labour which has been uneventful but a little longer than expected. She declined an epidural. She has, at her own request, had only “gas and air” for analgesia. She has been fully dilated for nearly an hour. She was pushing well at first but, suddenly, she is very tired, and she can no longer push effectively. The foetal heart rate has dropped suddenly and precipitously. The baby’s head is on the perineum, but Ms Smith cannot push it out.Three days later the police arrive at the hospital and arrest you. Ms Smith has made a complaint against you for indecent assault and possible rape.
The baby must be delivered quickly. You tell Ms Smith that she needs to have some help, that you need to do a forceps delivery. She is close tears and exhausted. She agrees. “Yes, please, just deliver my baby as quickly as possible.” Ms Smith is put up in the stirrups. You infiltrate some local anaesthetic, put the forceps on the baby’s head without difficultly and are about to do what the obstetricians (not the patient) would call a “simple lift out”. You start to apply gentle traction on the forceps. The baby’s head begins to move easily. At this point, Ms Smith starts to scream, “No, no, no, stop, take those bloody things out of me now.” Ms Smith’s partner mops her brow. She continues to scream, “Take those bloody things out of me”. You ignore her request saying “it won’t take a minute” and continue to increase traction on the forceps. Ms Smith screams more and keeps saying “take them out, take them out.” Twenty seconds later, the baby’s head is born, and you remove the forceps. Ms Smith stops screaming. The rest of the birth continues without problems. The on-call paediatrician is present. The baby has a low Apgar at one minute but then pinks up very quickly and is handed to the mother alive and well.
How are you going to defend yourself?
Labels: medical rape, when a woman says "no"
89 Comments:
I'd imagine you could argue that she lacked capacity due to labor and that you were acting in her best interests.
John,
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Agree with manc_doc. Your actions saved the life of both the baby and possibly the mother, when she was a) in no fit state to give informed consent and b) there was no time to seek an alternative.
No court would convict on this, and I uspect it would be quite hard for them to get a lawyer to take it on, either
At least you could sleep with a clear concience.
It's very difficult.
Assuming "Ms Smith" is compos mentis - and lets assume on the facts that she is - it is a very difficult problem. It is possible that, as a matter of public policy, the courts would not entertain it. It is hard, however, to mount a defence.
The woman is compos mentis
She is well versed in the meaning of consent
It is her body
As soon as you start saying "when a woman says 'no' she does not always mean it" you are in hot water. I have been hung out to dry on various feminist sites recently for maintain that, whatever is going on her or in similar circumstances, it is not rape in the ordinary sense of the word. There has to be a sexual context and (assuming the doctor is not an extraordinary pervert) there is no sexual context. The feminists see this sort of thing as an "exercise of power" against an unwilling female and as far as I can judge feel therefore that it is a sexual assault.
So I put a hypothetical case (although, to be honest, when I was doing obs, I had similar experiences on a few occasions) to discuss.
A woman has the absolute right to decline a forceps delivery. When and why should she forfeit her right to tell a doctor to stop doing something to her? Even if there is not a sexual offence, is there not an offence of assault?
John
Let's not forget that the Law is an ass. In a life or death situation, a medical professional should do what they feel is right for the benefit of their patient, or patients as in this case.
The alternative is similar to the PCO's who watched a child drown because it wasn't in their remit to jump in the water.
How would you feel personally and professionally watching a baby die unnessessarily.
I agree with Crippo and manc_doc
There is certainly grounds for an accusation of civil or criminal battery.
The fact that delivery involves a particularly intimate (or, loosely, sexual) procedure is surely beside the point, at least until sentencing.
If the procedure was in the patient's interest, consent was obtained and only withdrawn on duress (i.e. pain), and her husband did not think to intervene, any half sensible court would have to let it stand.
John, if you remember an otherwise rather bad episode of the West Wing entitled Swiss Diplomacy:
'you treat the patient in front of you, and take the consequences. That's the deal' during a discussion about the doctor who treated Wilkes Booth (Mudd) after the assasination of Lincoln, and who was then tried for treason and convicted (cleared later, however)
I do remember that episode. And dear old Dr Mudd as well. Trouble is, to the feminists most obstetrician's names will be Mudd.
John
You could easily defend yourself against the indecent assault and possible rape as she had initially given verbal consent to you 'getting the baby out' thus allowing you touch her 'intimately'. However, you may have problems with the measures you took to 'get the baby out'. Had you explained the plan and procedure, plenty of time whilst the stirrups were set-up, pack opened, woman put in lithotomy and local anaesthetic taking effect. Head on the perineum, why not episiotomy, baby may may deliver spontaneously with next contraction, if not ventouse and then forceps? If she had told you to remove the forceps then you should (head would probably deliver then anyway), baby has no rights until born, if woman refuses actions to save unborn baby then you may not continue.
Hi Midwifemuse
Yes, sure, lots of technical things about episiotomies, consent, lithotomy, why not ventouse and so on. I didn't put all that in because I didn't want to complicate the hypothesis. The main issue I was going for was:
"If she had told you to remove the forceps then you should (head would probably deliver then anyway), baby has no rights until born, if woman refuses actions to save unborn baby then you may not continue."
I am sure that you are right. I am equally sure that this is not a sexual offence as the feminists maintain but, on the facts as given, I do not think there is a defence to a charge of assault. I am equally sure that on the facts as given, most doctors would probably continue. I have seen cases like this. I have never heard of the woman complaining afterwards, or of her taking legal action. I suspect that most woman would be glad the the doctor continued for those few extra seconds even though consent had been withdrawn. But it is still legally wrong.
John
I would expect the Dr to stop, as the patient withdrew consent. After stopping I would expect the Dr to explain why he/she wanted to continue with this mode of delivery. If the patient continued to withold consent, then you could discuss using vontouse.
Not sure Dr C why you keep revisting this subject... if a woman withdraws consent, you have to explore other options, otherwise in my view, you are committing an assault. It's interesting to read your comments above as you seem to come at issues of this nature as 'Dr knows best' and 'just DO AS I SAY!' There is always more than one way to skin a cat.
If this situation had arisen, I would also expect the delivering Dr to visit the patient before discharge to discuss what happened and why, thus reducing the likelihood of the scenario you describe arising.
Indeed anon, we can always stop, discuss the issues, discuss the options, get an advocate in, hold an MDT meeting, etc.
Plenty of time, no rush...
I have been in this exact situation with some orthpods following an accident. I refused all treatment for a dislocated shoulder. A long story but they tried to treat me without consent on the basis that the ambulance brought me to A&E so I had consented. Yes I threatened the Police, GMC etc. It all got extremely nasty.
My GP told me take my own discharge and she would refer which she did. In the end I needed a complete shoulder reconstruction plus my ankle repinned that had completely cocked that up too. It has left me severe osteoarthirtis in my ankle and only partial use of my right arm.
I took 2 Consultants and 3 Junior docs to the GMC and won my case. The reason I took them to the GMC was over the issue of consent.
They now all have big black marks on their records which they will have to declare every time they apply for a new job. My GP has since told me I absolutely terrified the 2 Consultant.
I only won because I know the system 20 years as an NHS Manager.
My local Trust has since written to myself and my MP (who also took up my case) to say if I ever end up there again they will be immediately transferring to another Hospital Trust! I won I shall frame that letter!
Yes I would do the same again without hesitation.
There is a very very strong chance the woman will win if she involves the GMC.
I am afraid no means no, its that simple.
Renal - sarky comments are unnecessary... Having given birth - have you? - I understood what was being said to me and everything was explained. Had I been in that situation, I would have expected the Dr or a Midwife to explain briefly and quickly what they were doing and why.
I do understand that in some cases there is not alot of time. My first child was a undiagnosed breech which was picked up very late, I was rushed to theatre, lumped onto the table and knocked out. However, the staff explained to me what was happening and afterwards they all came to see me and explained what happened and why.
Patients deserve an explanation and they deserve respect. If you go against the patient's wishes, then at least have the politeness to visit her (in this case) and explain what happened and why. This simple act may save your ass one day...
Ref Anon 6:01 brave steps - well done for having the tenacity to stand your ground!
Your obsession with the female anatomy and the need for internal examinations is the thing which concerns most people. Weird that your obsession is worsening the more people feed you with comments.
anonymous said...
Your obsession with the female anatomy and the need for internal examinations is the thing which concerns most people. Weird that your obsession is worsening the more people feed you with comments.
Saturday, June 21, 2008 6:26:00 PM
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???????????
John
anonymous said...
Your obsession with the female anatomy and the need for internal examinations is the thing which concerns most people. Weird that your obsession is worsening the more people feed you with comments.
Saturday, June 21, 2008 6:26:00 PM
++++++
???????????
John
The doc is also a person - and to err is human.
To forgive - is up to a jury of his/her peers.
The emotional pressure and sense of responsibility on anyone delivering a baby is, I can only imagine, significant, if not huge.
However, the practitioner remains privileged in their position and can assume no rights to administer treatment over the individual's expressed wishes.
The consent issue is fact and is breached.
The incapacity argument is flawed - it is a presumption of fact to declare her as incapacitated. She is undergoing childbirth. (I think you are confusing her with the male of the species who usually think with their genitals). Her ability to make decisions does not automatically become impaired - the information may be limited as she may not know as readily as the medic on the matters in hand.
However, and notwithstanding, as her partner was there at her side the incapacity argument is lost since the medic did not seek an expressed opinion from him (or her, you didn't clearly state). To not ask for his/her direct input is another omission.
A jury (or panel) would need to know the options and probabilities of failure in order to accept the wrong course of action to be the right one.
If the practitioner has other options then they should consider them.
I reviewed the guidance from the GMC -
+++++++++++++
'Best interests' principle
http://www.gmc-uk.org/guidance/current/library/consent.asp
25. In deciding what options may be reasonably considered as being in the best interests of a patient who lacks capacity to decide, you should take into account:
* options for treatment or investigation which are clinically indicated;
* any evidence of the patient's previously expressed preferences, including an advance statement;
* your own and the health care team's knowledge of the patient's background, such as cultural, religious, or employment considerations;
* views about the patient's preferences given by a third party who may have other knowledge of the patient, for example the patient's partner, family, carer, tutor-dative (Scotland), or a person with parental responsibility;
* which option least restricts the patient's future choices, where more than one option (including non-treatment) seems reasonable in the patient's best interest.
+++++++
It is clear the medic did not satisfy all of these criteria and, is in breach of medical guidance.
Your example is complicated with things like live babies and a partner who does not seem to mind the pain his partner is going through. However, the facts remain; consent was withdrawn and the practitioner continued to act against expressed wishes. I will accept the midwife opinion above that continued forceps was perhaps not life-threateningly necessary and therefore the practitioner made an unnecessary decision to continue. An error that constitutes a form of assault.
It is also possible to discuss with the pregnant mother at ante-natal the importance and consequences of "consent" and how it *will* be necessary to consider the choosing of what one says and what one really means.
Was an item unlawfully inside her vagina against her will at any time?
Yes.
Is this rape?
I've accepted under current UK legal definition that this is not rape.
But, since it only relies on the act of anatomical penetration and is based on the subjective intent of the perpetrator; the whole affair ignores the more subjective (and devastating) psychological trauma of the victim.
The assertions that rape can only be considered rape if sexual intent is present is akin to the distinction between murder and manslaughter. However, the victim in this case is still alive and has to live with the memory of those events.
I think it is, in this case, that the definition is wrong - not the opinion of the victim. However, the reason the legal definition exists in this fashion is that each qualitative personal experience is incommensurable as you cannot value-judge suffering, trauma or pain.
If you were to proffer the other extreme - that a woman was held down and forcibly under went an invasive medical procedure - or even a male underwent the same thing for a prostate exam - in an extreme case of traumatic violation, and even in the absence of sexual gratification, I would contest that it does satisfy the concept of rape.
Rape is not merely an anatomical invasion; it is a power and control imbalance, it is an abuse of trust, it is the violation of intimate personal bodily areas.
As our current legal system allows for charges to be bartered down; I would suggest we permit the violation of trust to be understood to be significantly detrimental enough to permit a charge of "rape". How they fair after that is up to the circumstances and intent of the perpetrator.
It's disgusting to bring this to court. Still, next time you know what to do, just let the baby die.
anonymous 7:04:00
"It's disgusting to bring this to court. Still, next time you know what to do, just let the baby die."
Unfortunatly, the Law favours the right of a pregnant woman to harm/kill her unborn baby.
mr ian the pompous
I love it!
I know the law favours it, but it's still utterly disgusting for a parent to think that they're so much more important than their child's life. People like that shouldn't be having a child.
Some women are afraid of forceps because of the horror stories which they hear. Of course, these stories maybe right or wrong so, I can't understand why is there no leaflets or the like in maternity wards to explain the different types of deliveries and a little info about each. I think a judge will consider the child's welfare in this case and that the doctor acted in the best interest of both mum and baby. Afterall, a further delay in the delivery may have caused the child further stress or even harm leading to death! We rightly protect animals from suffering so, surely a human baby has the same rights!
BTW,Can the use of forceps cause dyslexia/autism in later life sometimes?
I can't understand why is there no leaflets or the like in maternity wards to explain the different types of deliveries and a little info about each
Haha, when a friend of mine was going to childbirth classes, very little was touched upon in terms of things going wrong - the focus was on the 'beauty' of natural i.e. drug free childbirth, and how you don't want to have an epidural otherwise you'll get all those nasty interventions and be totally disempowered from the process.
As a patient in the situation described, I think I'd be more upset if the doctor just completely ignored me, even an acknowledgement of something like, "I know it's very painful for you, but if I can continue you'll have your baby in the next contraction," would help me mentally to deal with the physical pain. (Easier in retrospect when you're not dealing with the panic of delivering a floppy blue baby)
But carrying on regardless when someone has said no, labouring woman or not is something that doesn't sit comfortably with me at all. Neither does the prospect of being sued due to the result of a hypoxic baby.
Maybe all pregnant women should have a see a solicitor (paid for by the NHS) during pregnancy to draw up a contract as to what will wil/will not agree to during her pregnancy and labour. The solicitor should be there during the labour and delivery of course to deal with unforseen circumstances in case the woman changed her mind as is her perogative. This would maximise her chances of successfully suing the medical staff whatever the outcome.
God forbid that the said medical staff would do what they think is best for that woman and her baby. Who do they think they are!
Rape is a statutory offence (section 1, Sexual Offences Act 2003). The scenario described is not within that section. Under what provision of the 2003 Act does Dr Crippen think this would be capable of amounting to a sexual offence? (See www.opsi.gov.uk for a link to the 2003 Act.)
Cherry
Why only focus on pregnant women though? Colonoscopy for instance, if a patient asks you to withdraw the second you see the lesion you want to biopsy, do you respect their wishes, or go for it anyway? Yes, yes, the life of a baby could potentially be at stake, but if there's debate about someone's physical or even mental state at a time during pregnancy, then surely it goes beyond that to other patients and procedures?
Also, it's worth bearing in mind the potential after effects of leaving someone with the mindset that their doctor is not going to listen to them. Surely a lot of women seek homebirths because of that?
more likely in a typical UK maternity ward there are 3 midwifes to 40 women, 6 to 10 births in progress, and one junior doc on duty
the biggest issue the women have is lack of basic care, and dirt
lack of enough staff to allow reasonable pain relief etc is institutionalised torture
and the dirt and associated issues is a disgrace
NHS maternity wards would be improved significantly if they had to attract patients in advance, rather than the patients having no fucking choice where to go, some competition between medical providers would ramp up all care standards including how the women are treated by the staff
given the shit i have seen dished out by the staff to patients in average NHS hospitals im a amazed the relatives dont deck the staff more often
"Ms Smith has made a complaint against you for indecent assault and possible rape."
Is the assumption here that the obstetrician is male? In the area where I live, half of the obstetricians are female; I can foresee a time when virtually all obs/gyn specialist in the UK will be women. Is it less likely that a female would be accused of indecent assault and rape of another female?
Anon: "BTW,Can the use of forceps cause dyslexia/autism in later life sometimes?"
Perhaps my sarcasm radar is down, but please please tell me you are joking right?
Rooroo - just from the scenario you have chosen, it is unlikely a patient having a colonoscopy is in an condition to say anything; it is a particularly unpleasant procedure & requires a degree of sedation that falls just on the safe side (without airway protection) of general anaesthesia. A few unintelligible moans may be the best you could muster.
It's not just women who object to doctors continuing with invasive procedures after consent has been withdrawn.........
"Although a rectal exam is part of the routine E.R. evaluation, this patient clearly refused. His life was not in danger. He did not have any signs of abdominal trauma. He had full range of motion and movement of all four extremities. A reasonable analysis of his situation could have been obtained without checking for “rectal tone.”
Dr. Friedman concluded that Mr. Persaud “has been left with extreme anxiety, agitation and depression due to the events at the emergency room.”"
http://cityroom.blogs.nytimes.com/2008/01/16/forced-rectal-exam-stirs-ethics-questions/
Saving the baby seems the most sensible thing to do.
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Wow, judging by some of the comments from the 'feminists', I can safely say I will NOT be specialising in OB GYN - not worth it!
No experience with having babies, but I did have a Dr do a full colonoscopy on me - no sedation no pain relief as was due to only be a flexi sig. I kept asking him to stop and he wouldn't - instead he got someone to hold me down while he continued to push the scope through. Was that assault? No, just a an idiot of a Dr who thought he knew best.
'Anon: "BTW,Can the use of forceps cause dyslexia/autism in later life sometimes?"
Perhaps my sarcasm radar is down, but please please tell me you are joking right?'
I meant for the baby of course. Care to reply?!
"Standard medical practice" - it gets doctors out of almost anything. In many cases it's a good thing, and in many others it's not.
I don't think Dr Crippen is at all obsessed with female patients; what concerns me, as someone with a loved one practicing medicine under UK law, is the issue he raises rather than the distraction of what that tells us about his inner state.
My impression is doctors have to make decisions nearly, if not quite as, tricky as the one in Dr Crippen's scenario quite often, and that many of them are people who would keep revisiting and questioning the choice they made.
And they'd wish they would have had the opportunity to think things over in a relaxed environment, with no time limit, less of a sleep deficit than usual, an internet search machine, and possibly the GMC guidelines on consent open in another browser, before the issue actually arose. Well, here's your chance.
anon1: I figured you meant the baby. And by your repeat of the question I'm guessing you weren't joking.
Please attempt to postulate _any_ suggested mechanism by which forceps delivery (transient albeit high levels of force applied to the baby's head) could cause dyslexia/autism. Apart from the 'fact' that everything seems to cause either of them now. And they are 2 different syndromes.
OMG I completely take that back. I googled it (probably should have done it before I posted a smart-arse reply) & found that, yes, some people (with the ability to write web pages and mostly US lawyers ambulance-chasing for damages) are linking the two. Admittedly it comes in a long list of birth interventions including C-sec, ventouse, prolonged labour etc.
I suppose dead babies aren't able to get dyslexia/autism.
So, anon1, I repeat the question to your question: a postulated mechanism? As forceps are only used at 'difficult' births, usually at the end of protracted labour, how would you separate forceps delivery from other concurrent causative effects? (see many many previous posts regarding the incorrect implication of causation because two things happen together - MMR & autism, autism & the rise of mobile phone use etc.)
Good for the mom. She said no.
DR C why on earth are you continuing this obession with internal examinations and procedures on female patients? Clearly you have been accussed of malpractice and so we are all going to breathe a huge sigh of relief that you won't be anywhere near us with your gloved hand and KY gel! My baby was born six months ago and when the Dr wanted to have a good feel around he did so with a gentle and prfessional manner which you seem unable to discuss.......weird and unprofessional yet again Dr C
I had heard of medical rape for long, long time back in time, basically associate to obstetricians, but this century has made clear it really exists!
This is clearly a catch22 type situation. Being a male student nurse (and therefore not allowed to be placed within a OBGYN environment [Insitutional Sexism = 100% win]) I don't have the precise medical knowledge to guess the consequences of each action. If, like in the scenario, a doctor delivers the baby anyway as the doctor believes it would be the best choice for baby and family, s/he runs the risk of a lawsuit. Presumably, given the 'oath etc, this is also the best choice for the conscience of the doctor.
Otherwise, the doctor stops the forceps delivery and... then what? Tries with a more painful natural birth which could end in damage to mother and baby? How does this weigh on the conscience? And could the doctor also run the risk of legal action for this?
They don't have it easy, these medics.
Additionally, the idea of which gender the doctor in the scenario would be is an interesting one. Given pregnancy effects every woman differently, I'm always amused when misandrists pedal the old idea that anyone lacking a penis would automatically deal with these kind of situations better and more sensitively.
Being a male student nurse (and therefore not allowed to be placed within a OBGYN environment [Insitutional Sexism = 100% win]) I don't have the precise medical knowledge to guess the consequences of each action.
+++++
Jesus H. Christ. I did not know that nonesense still goes on. How are you supposed to learn? Female nurses do urology and STD clinics. Do you mean to say you cannot attend births? Go to gynae clinics? That is absurd, outrageous and ridiculous. Male medical students can. Why can't you.
Time the RCN did something about this
John
"Jesus H. Christ. I did not know that nonesense still goes on. How are you supposed to learn? Female nurses do urology and STD clinics. Do you mean to say you cannot attend births? Go to gynae clinics? That is absurd, outrageous and ridiculous. Male medical students can. Why can't you.
Time the RCN did something about this"
I have to say if any male doctor or nurse student or otherwise came anywhere near me they would get chucked out. If they pressed the issue it would formal complaint GMC,NMMC Complaint too.
I expect to be treated with dignity and my view respected at all times.
"I expect to be treated with dignity and my view respected at all times."
Well then let's hope you are never in a situation where only a MALE nurse/doctor is available but unfortunately has no experience because people like you kicked him out of the room. I suppose it's alright for them to learn on working class people who don't know their rights then? As a woman I am realistic enough to understand that a slight dent in my dignity may help someone else in the future. Get over yourself your pompous ass.
'As a woman I am realistic enough to understand that a slight dent in my dignity may help someone else in the future. Get over yourself you pompous ass.'
Yes exactly - if you need someone with medical knowledge and need someone now it really doesn't matter if they're little green men from Mars if they've got the knowledge and experience which is needed. Dignity needs to be considered but in life or death situations it really is irrelevant or at least very low down the list of priorities.
This discussion has been conducted in far more sensible fashion than the previous ones. Dr C raises a valid issue here and one which I would have thought was of concern to all medical professionals as well as us lay people. When does consent cease to be consent?
Anon 10:36:00 AM :
'I have to say if any male doctor or nurse student or otherwise came anywhere near me they would get chucked out...I expect to be treated with dignity and my view respected at all times'
What the hell? How does being treated/cared for by a male healthcare professional bear any relation to your level of dignity?
A formal complaint? For trying to help you? God, you are pathetic. I think you've just lost the right to be treated with dignity and respect because you seem to have a lack of dignity and respect for the male population!
When does consent cease to be consent ?
It doesn't, Jilly - medical staff have stood by and watched a young mother exsanguinate post-partum because she refused a blood transfusion.
http://www.guardian.co.uk/uk/2007/nov/05/health.religion
Every instinct of medical staff would have been to try and save her but the patient happened to be a Jehovahs witness, and was deemed competent to refuse treatment.
It is of course possible to be a Jehovahs witness, yet still have capacity [I think].
The formula for assesing capacity is now enshrined in the Mental Capacity Act [2005].
The culture within medicine has always been 'treat now, argue later' [when sufficent doubt exists, about capacity] - I think we should thank doctors for shouldering this responsibilty.
We have similar dilemmas in A&E when patients initially refuse treatment after a serious overdose, such as the need for parvolex after taking paracetamol, etc - sometimes they change their minds, sometimes they don't.
Each case [such as the birthing woman highlighted in Dr Crippens main post] always turns on it's own unique circumstances - not an everyday occurance but not that uncommon either.
"I have to say if any male doctor or nurse student or otherwise came anywhere near me they would get chucked out. If they pressed the issue it would formal complaint GMC,NMMC Complaint too."
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Why? It's no less embarrasing having a female Dr than a male...
I had Gynae poking around under a GA on Tuesday and a male medical student asked me if he could observe, and if he could do the smear. I said of course, you have to practice on someone, and if I'm under a GA you can do what the hell you want.
And after my rectum removal I had male nurses and student nurses looking after me, bed bathing me, changing catheters etc. All has to do be done by someone.
Richie - a patient repeatedly saying no and please stop during a colonoscopy and being ignored was presented to us in an ethics and law class; it was a situation that a medical student had witnessed during their surgical rotation. I know a lot of patients can say a lot of gibberish under conscious sedation, but by the case presented it sounded as if they were quite lucid - oh, and the lesion had just then been seen.
The majority of people in my class said they would have just continued and taken the biopsy.
surely in issues of consent there is a point of no return. if you give consent to go bungee jumping can you withdraw it as you leap off the platform?
what if you have consented to giving bone marrrow and the patient is being conditioned. can you withdraw it?
Jaz
The ignorance of law (indeed contempt for it) displayed here is frightening.
You cannot defend yourself in the hypothetical example given. You have committed assault.
Yes, you can anonymous [at 2:06]- consider this:
Does the mother in her heightened emotional & physical state have full capacity..........maybe ?
But does the doctor have TIME to explain in detail, including the statistical probabilities, or pros/cons associated with various courses of action, including stopping, or continuing which may, or may not result in:
*risk of foetal brain damage.
*risk of foetal death.
*risk of maternal death.
All of which is essential information in order to arrive at meaningful choice.
Lets say the clinician considers that the mother MAY lack capacity - would there time be time to arrange a second opinion if such doubts existed, or if the mother had a history of depression, and needed a psychiatric examination, say ?
The clock is ticking anonymous and the distraught mother and her partner, the now rather anxious 32yr old bra-repairer, are both in a very precarious state - I'm sure a reasonable legal defense [for continuing] could be made in such circumstances ?
Alternatively one would hope that the hospital had a robust enough legal team to protect against subsequent charges, should the mother claim she was 'irrational' and was in no fit state to make a meaningful decision, assuming a catastrophic outcome resulted from her decision to withdraw consent at such a critical time.
Jaz - I would guess that you can decide not to bungee jump right up until you have jumped....! Are you saying that patients aren't permitted to change their minds?
"Had you explained the plan and procedure, plenty of time whilst the stirrups were set-up, pack opened, woman put in lithotomy and local anaesthetic taking effect. Head on the perineum, why not episiotomy, baby may may deliver spontaneously with next contraction, if not ventouse and then forceps? If she had told you to remove the forceps then you should (head would probably deliver then anyway), baby has no rights until born, if woman refuses actions to save unborn baby then you may not continue.
"
See I would argue that the situation was a life saving emergency one wherein th usual rules of consent blur significantly.
As someone has said, int his sitation there is not time to gain full informed consent, asn as such you can argue that she is not informed enough to refuse.
Ritchie - obviously autism and dyslexia are caused by medical mispractice/MMR/food colourings. THey can't just be 'acts of god' now can they?
Who would we sue then?
Richie RE: sedation in colonoscopy
I know this is off topic but:
As a trainee colonoscopist I can tell you that things have moved on in the last twenty years. The sedation we use is not heavy and not just this side of a GA. It is light and the correct level is generally judged to be that at which the patient is still talking to you.
Patients withdrawing consent mid-procedure is a serious issue and one that every endoscopy unit in the country is obliged to tackle (via the GRS ongoing assessment and audit) with a formal policy. All endoscopists are obliged to know the details of their local policy and national guidance from JAG and the BSG.
Anon & others; sorry I meant to distinguish between flexi sig & rigid. As far as I'm aware, In most hospitals down here in Aus & NZ (public & private), colonoscopy lists come with an anaesthetist attached (which used to be me) & the end point requested & titrated to used to be just beyond still making sense using a combination of Fentanyl/Midaz & the occasional Propofol bolus. My colleagues run remifentanil infusions now due to its infinite titrateability. This probably reflects a geographical variation rather than a temporal one (I was still at med school twenty years ago!).
Either way, the ability to produce informed consent would still be very dubious &, some may suggest, would represent a failure on the part of the anaesthetist (much as it would if a patient was able to withdraw consent in the middle of an open appendicectomy!). Sorry to perpetuate the topic-stray. The trend towards under-sedation may reflect the lack of training in airway skills on those performing the procedure & the cost of supplying an anaesthetist (no offence intended to trainee colonoscopist but I presume you were never taught to intubate after medical school). I would certainly want a fairly robust sedative regimen if you were looking deep into my colon.
Off topic :
To Anonymous 6:01
re: Refusal by Trust to accept you as patient, after you had complained and won your case
Hi, is there any legitimate grounds on which a trust can refuse to treat a patient?
I recognise that they can put controls round where they treat, or to offer a different member of staff, but I am wondering if they can legally justify a total refusal to treat.
I am speculating and you may not want to give details, but, AFAIK, a legitimate grounds would be threat of violence or actual violence. Are there other legitimate grounds for a total refusal to treat a patient?
Re -"Being a male student nurse (and therefore not allowed to be placed within a OBGYN environment [Insitutional Sexism = 100% win])"
I hazard a guess that this commentator is not in he UK as in all units I know of male student nurses hve placements within all maernity areas. We have male midwives, male obstetricians so 'Institutional sexism' within obstetrics is questionable.
"Patients withdrawing consent mid-procedure is a serious issue and one that every endoscopy unit in the country is obliged to tackle (via the GRS ongoing assessment and audit) with a formal policy. All endoscopists are obliged to know the details of their local policy and national guidance from JAG and the BSG."
What happens, if like with me you don't actually consent for a full scope? I only consented for a flexi sig - not to be held down while they ramed the scope through! Though at the end of the day I can laugh about it - had my colon out the next day anyway!!
anon said:
"more likely in a typical UK maternity ward there are 3 midwifes to 40 women, 6 to 10 births in progress, and one junior doc on duty"
This is utter bullshit. Utter utter crap. A typical unit has 4-5 midwives on a 30 bed AN/PN ward, 7 midwives for labour ward (for a 9 bed LW and an HDU) and an SHO and registrar on the premises and a consultant on call (who may or may not be on the premises).
Along, of course, with two/three HCAs and two domestics, plus assorted students.
Oops, sorry. I meant twp/three CSWs and domestics per ward, not for the whole unit. And the wards will usually have a separate SHO and reg on call, so as not to take them off labour ward.
Ummm....maybe I'm wrong. But looking at the diagram the only way to end a forceps delivery would be to literally let go of the forceps and stand back?
There doesn't appear to be any way (well, sane way) to remove them without the babies head as well.
Could someone confirm/deny?
I have this image of the patient denying consent...and demanding that these Things be removed - but not actually used, and then suing because the physically impossible was not achieved.
“no sedation no pain relief as was due to only be a flexi sig. I kept asking him to stop and he wouldn't - instead he got someone to hold me down while he continued to push the scope through. “ said Anon at12:04:00 AM .
Now we're on to something. It's amazing it hasn't been thought of sooner. Why on earth do we need those silly and expensive anesthetists for any operation? General anesthetic can be dangerous (specially with the increasing incidence of obesity in the population). All that is required is someone with the required “holding the patient down”competencies. Bouncers would be ideal – cheap, and they only work nights so I'm sure they'd love the extra cash for a day job. You'd only need one (maybe two for hip replacements, heart bypass that sort of slightly complex thing) but think of the savings! We all want a cost effective NHS don't we? The patients would understand. One of the lovely nurses could talk to them throughout the operation in a soothing voice and they would of course get a stick to bite on (any wood they ask for, after all patient comfort and choice is of the highest importance and we're not completely heartless).
I mean we're already making great strides in reducing training costs according to Richie who says “The trend towards under-sedation may reflect the lack of training in airway skills on those performing the procedure”. Why not lets go all the way? Think of the savings!
Your life is so wonderful. Reading your article is a kind of enjoyment. Thank you.
Tactical Flashlights
r c helicopter
video game
Tactical Flashlight
Flashlight
Led Flashlight
rc helicopter
helicopter
airplane
Playstation 2
Playstation 3
Nintendo DS
SONY PSP
Anon:
"at the end of the day I can laugh about it - had my colon out the next day anyway!!"
God I love the British sense of humour!
Another anon (4:46am; not the one flogging playstations):
Agree completely. Some of those inhalational agents are quite expensive too. Luckily paralysing agents are fairly cheap (probably cheaper than bouncers) so a slug of that tends to keep you fairly still. Being held down was good enough for the victorians (pre ether) and they built an empire!
Born Today - what a bizzare post! We had forceps passed round at one of my antenatal classes - they come in two pieces and are a rather large and unpleasant looking piece of kit. I assume it's possible to remove one and then the other.
p.s. I think the illustration is of a pre-2008 model of forcep.....
"A much more reasonable and tolerable debate" said Mr Ian with a pompous air.
A&E CN raises the issue that is the crux of decision making in ethics:
But does the doctor have TIME to explain in detail, including the statistical probabilities, or pros/cons associated with various courses of action, including stopping, or continuing which may, or may not result in:
*risk of foetal brain damage.
*risk of foetal death.
*risk of maternal death.
All of which is essential information in order to arrive at meaningful choice.
And herein lies the responsibility of the clinician:
Altho there may be a primae facae case of "assault" in one form or another, the decision made by the medic may be "clinically defensible".
Those who are familiar with the Professional Medical Negligence process will know of the "Bolam Test".
http://student.bmj.com/back_issues/1296/1296ed2.htm
a responsible body of medical opinion that would have acted in the same way: "a doctor is not guilty of negligence if he has acted in accordance with practice accepted as proper by a responsible body of medical men skilled in that particular art."
Simply put, this is a legal principle that suggests all healthcare actions can be justified if they are backed by a panel of peers.
In the UK, as it stands, once a Bolam test has been applied, the outcome is taken as a presumption of fact without legal contest or recourse.
So all you have to do is get a couple of mates to back you up and case closed.
UK doctors are more protected with this than Australian counterparts - as the Bolam test is only considered within the context of the case but does not over ride the rights of determination of the legal authority. (Because they were wise enough to realise that just because 3 other doctors might do it - doesn't make it good practice or legal).
In this scenario then, the test would be applied by asking other "experts in the field" what would be acceptable practice in the circumstance, or, "What would you have expected to be done?"
This is truly a "jury of your peers".
Ergo, it is the case that those who wish to ignore withdrawn consent or to undertake skills outside their remit or to perform outside of clinical governance - they better be able to defend their decisions to do so and hope they're not alone in their opinion.
And why not?
No one clinician is 100% right all the time (sorry, John, it's true) and this is another safeguard to ensure that individual rights are upheld whilst also retaining a sense of perspective.
Yet, not all scenarios can be answered with one answer.
If the clinician in this scenario can adduce statistical evidence or expert witness to state the risks were greater than acceptable - then s/he will likely be understood to have made a "clinically defensible" decision and "withdrawing consent at a crucial clinical time" is no longer the main issue; it becomes, was it reasonable to continue?
If they can't justify this - then they made a bad judgment.
(But lucky we have all these competent highly intelligent doctors and not GCSE-failing quacktitioners or madwives doing the job - as they never make mistakes.)
Unfortunately there can be a 'close-ranks' mentality that often accompanies these medical-peer reviews ("There, but for the grace of this stupid doctor, go I") and often, in cases that hang in the balance, a little bit of embellishment or 'beneficence' is afforded to protect the good name of "medicine" (rather than the individual).
It only works in cases where "shades of grey" are rife and I wouldn't suggest that such self-preservation is beyond understanding or tolerance or indeed happens on every such occasion.
Guaranteed though, in those such times, the process doesn't stop at a failed court case - and contingencies are usually put in place to prevent "it" happening again by governing bodies.
What I think John and others who share his issues in these such scenarios might be still struggling to come to terms with is the loss of Crown Immunity.
No doubt, the leitourgia undertaken by all healthcare practitioners requires some recognition and protection, and for this, Crown Indemnity remains; but it still does not place you, or I, above the law.
"To Anonymous 6:01
re: Refusal by Trust to accept you as patient, after you had complained and won your case
Hi, is there any legitimate grounds on which a trust can refuse to treat a patient?
I recognise that they can put controls round where they treat, or to offer a different member of staff, but I am wondering if they can legally justify a total refusal to treat.
I am speculating and you may not want to give details, but, AFAIK, a legitimate grounds would be threat of violence or actual violence. Are there other legitimate grounds for a total refusal to treat a patient?"
No no threat of violence at all just a very litigious and extremely articulate patient.
Although as a medical friend said you are not asking for anything special just your legal rights to be respected.
Interesting I am in a legal battle with my local PCT over a completely different issue and they are saying I have to go to the Trust whether I like it or not? Even though said Trust don't want me and I don't want to go there under any circumstances. Got a Production Company (prime time TV) working on this at the moment so poor PCT will get a shock.
Please stop using the term feminist as an all encompassing term. I am a feminist and no I don't agree that any of the examples given are rape. The term feminist covers a wide range of views as does terms such as conservative or liberal.
After some of the comments:
I never cease to be amazed how hung up human beings area about their bloody genitals. A source of fun'n'recreation in the right situation they may be, but I would hope and expect that in a medical environment would be perceived as merely another part of the anatomy.
NHSPenpusher... as I've nothing better to do...
but I would hope and expect that in a medical environment would be perceived as merely another part of the anatomy
This is a particularly typical health care worker comment.
The thing being... the medical environment is there for the benefit of the patient...
not - the patient is there for the benefit of the medical environment.
I don't care how the medical environment may wish to perceive my genitalia - they're mine and I they're important to me.
My genitals are rarely exposed to anyone outside of my bedroom - and certainly no other person but my good lady gets to fondle them.
Why should I accept that cos someone went to Uni for a few years they should be trusted with my crown jewels? And why because it's simple anatomy that I should expose it to be poked and prodded?
Will you be so willing at the prostate exam?
NHSpenpusher - I think you need to accept that there are people who don't mind other people seeing their 'bits' and there are others who are not so comfortable with the whole idea. Neither are wrong, they are simply different! :-)
Doesn't the baby have 'yuman' rights as well? Like to be born without brain damage due to lack of oxygen?
I am a feminist too, and I agree with the earlier poster, the term covers a multitude of views. I am of the old school that believes in equality of opportunity and responsibility. And I don't believe all men are rapists or any of that load of old tosh.
Jane
Richie -
Sedation beyond the point of conscious sedation (ie talking) in a colonoscopy radically increases the risks of a perforation.
My airway skills are excellent thank you very much (several years of anaesthetic training before re-training as a gastroenterologist, ALS ATLS APLS and ALSO instructor).
Anonymous 9.52
You are a stain on the human race.
You evil fucking cunt.
You'll get what you deserve you utter bastard.
Mr/Ms Colonoscopist, please forgive my unintended sleight upon your airway skills. I am sure you will agree that your possession of such places you in the minority, at least judging by the many urgent calls to endoscopy suite I attended as an anaesthetic reg many years ago in the UK.
I am interested as to your comment that passing the point of conscious sedation increases your risk of perforation as this would seem to be counterintuitive - surely an immobile patient is less likely to back onto your scope (although obviously some degree of patient co-operation is required to reach the distal flexures). Certainly that doesn't seem to be the view of the colonscopists I have worked with in several august institutions down here in the colonies. Perhaps I should amend my anaesthetic practice!
Truly you are an instructor on an impressive range of courses although I must admit I have never heard of ALSO. Perhaps you could enlighten me?
Mr Ian:
I wasn't speaking as a "healthcare worker", merely as a biped.
Anon 606:
I don't "need to accept" anything! I was just voicing a view from my own perspective, not demanding that the rest of the population agree with me!
For pete's sake...
"I am [also] of the old school that believes in equality of opportunity and responsibility. And I [also] don't believe all men are rapists or any of that load of old tosh."
Amen to that! I never believed such rubbish, I actually think alot of male nurses and doctors seem to be better suited to OB/GYN, so cut out the misandrist nonsense.
I also hate the way that these types of discussion always become woman vs baby. Presumably what the woman wants what is in the best interests of the baby also (but don't forget- there is only one patient in this scenario and that is the woman, her life and safety take priority, not the baby, not the wishes of the husband or of the Dr). Could it be in the scenario described that you were actually really hurting her??? Maybe the "gentle traction" wasn't so gentle or the anaesthetic wasn't working?
But no- the assumption is that she is a cold hearted bitch who just wants to kill the baby she has been carrying for nine months right?!
@ Matt
"Unfortunately, the Law favours the right of a pregnant woman to harm/kill her unborn baby."--- No it doesn't, it favours her right to bodily autonomy and integrity over the rights of something which is barely conscious.
Unless you willing to concede the baby has equal rights to the woman-- in which case if there is a conflict, whose life are you going to prioritise? And equally won't this lead to charges of manslaughter for all those docs who didn't spot something on the ultrasound that led to a miscarriage?
I don't believe the scenario counts as rape. It might be assault. As another poster said, consent to a procedure never stops unless specifically revoked and ruminations on incapacity to consent are frankly quite insulting. Just because someone refuses something you think they shouldn't it doesn't mean they lack the capacity to make that decision.
If you accept individual autonomy you should respect it, even when the going gets tough.
Dr C - as for hanging you out to dry (he he!), if the original discussion had been anything like as reasonable as this you would have been applauded. As I recall your initial premise was rather more offensive.
But then what do I know-- I'm just a "coffee shop" feminist. (All the real ones hang out in pubs!)
To the NHS manager. Congratulations on your osteo-arthritis!
Truly, you made the smart choice.
Fecking idiot.
"To the NHS manager. Congratulations on your osteo-arthritis!
Truly, you made the smart choice.
Fecking idiot."
I have to say this decision was the advice of a GP I worked for who knew the local Trust.
He told me not to let them treat me as its not a specialist Orthopaedic unit.
So perhaps you shouldn't be so judgmental when you don't the facts?
From Anonymous 11.05 above:
Further to above it was original Hospital Trust that left me with these disabilities.
They put pins into my ankle joint so I would n't be able to walk. Clinically and radiologically missed a dislocated shoulder. My GP intervened and pointed out their errors then they became absolutely desparate to treat me. Threatening to tell my family my medical history if I did not consent. It then became a extremely serious consent issue. Yes it did goes so far as occurring to me to call the Police.
GP I worked for told me not to let them treat me as they where not a specialist orthopeadic unit. He feared they would make an even bigger mess.
The Royal National Orthopeadic were horrified at the mess they made. Presumably they did not want another hospital treating me as would expose their errors/ negligence.
Yes it really was this bad, this is not exaggerated. Hence why I won my GMC case.
Neither the Hospital Trust or myself want anything to do with each other again. My MP got involved too which is why they wrote to us both to say if I ever taken there they will immediately transfer me. This I am so incredibly pleased about.
Original Hospital Trust is also known to Royal National Orthopeadic Hospital (RNOH) as its very close to them. RNOH term me as one of their local patients. Close enough to go everyday to their outpatient physio and be seen in an emergency etc.
RNOH Consultant sent very damming letter to original Trust critising them.
So I suggest you think before you go telling people they are "fecking idiots".
Apologies if someone has already said this, but the Sexual Offences Act 2003 s1 states:
Rape (1) A person (A) commits an offence if—
(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,
(b) B does not consent to the penetration, and
(c) A does not reasonably believe that B consents
i.e. It is only rape if penetration occurs with a penis.
Assault is a trickier issue, but again, if it ever reached court (probably only by private prosecution) it would probably be met with a necessity defence.
It is an interesting case. As a doctor I still don't understand how you ever could stop if you feel the baby needs to be delivered quickly.
Personally, my husband couldn't look when they tried to deliver my baby with forceps. He had the feeling that I was assaulted, but everything was forgotten when the baby finally was born with a CS. I'm still very thankful to my doctor, without him my baby would have died.
A midwife would have known better than to bring the labour to this disastrous point. You and the rest of your ilk create these horrendous situations so you can use rape instruments to 'save the baby' and make heroes of yourselves. Pathetic really.
And soon to be history! Always a bright side.
Ever worked in obstetrics, nutter?
Or should I say 'troll'...
http://www.womensspace.org/phpBB2/2008/06/27/american-college-of-obstetricians-and-gynecologists-launches-attack-on-home-birth-and-home-birthing-moms/
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