Non-Consented Vaginal Examinations: A Hidden Violation?

The law in the UK is clear: a woman or birthing person with mental capacity has the absolute right to consent to, or decline, interventions in maternity care. This is true even if the woman or her foetus may die as a result of her decision (Re MB [1997] 2 FLR 426), or if her decision appears “morally repugnant” (St George’s Healthcare NHS Trust v S [1998] 3 All ER 673). The landmark Montgomery decision made it clear that the law expects women to be supported in informed decision-making with personalised information and discussion about their options and the alternatives. Yet recent research highlights that – five years on from Montgomery – fewer than 50% of women felt that this was reflected in their experience of care.

The Montgomery decision concerns choice of mode of birth; other major cases in maternity concern Caesarean decisions. But does this mean that issues of consent occur only in these situations? Birthrights’ chapter, ‘Non-Consented Vaginal Examinations: The Birthrights and AIMS Perspective’ demonstrates otherwise.

Birthrights was founded in 2013, and has been hearing women’s experiences of non-consented care ever since. In our chapter, we share our reflections of why non-consented vaginal examinations may happen in the first place, why they may fly under the radar, and the issues individuals face when seeking redress. It is vital that these are understood as live issues affecting people’s lives. This point is powerfully illustrated by the case studies from real women such as Jodie in the chapter: these experiences and the frustrations of inadequate support and redress have ongoing and damaging impacts on people’s lives.

Birthrights is often asked how prevalent non-consented vaginal examinations are in the UK. This is a question that we cannot yet answer. There is little data available, and vaginal examinations form a routine part of maternity care. In this context, there are strong indications that many women will not know that they need to consent to – and therefore can decline – vaginal examinations.  Birthrights’ and Birth Companions’ research on the experiences of women facing disadvantage shows that women who might arguably most benefit from maintaining control over their bodies struggle to decline intimate examinations. Other studies describe explicit cases of non-consented vaginal penetration, both for women facing disadvantage and in broader maternity care.

In our chapter, we highlight in particular the lack of options available to women who experience non-consented vaginal examinations, and the struggle for some women to be heard. Women report of the long-term psychological – and sometimes physical – effects as a result of their experiences. At times, the experience of seeking redress seems to add to this burden. Women describe notes going missing when they complain to Trusts, and eyewitness accounts in support of the woman being discounted. A lack of documentary evidence makes appealing to the Parliamentary and Health Service Ombudsman challenging. Complaints to professional regulatory bodies such as the General Medical Council have to meet a very high bar to be investigated, and may be difficult to pursue without proof of recurring patterns of behaviour. In some cases – such as the one described in Birthrights’ recent evidence to the Health and Social Care Select Committee – regulatory bodies’ own experts have given inaccurate advice on consent. Legal routes for redress appear to be limited to cases which meet the bar for clinical negligence.

This leaves women with nowhere to turn and with little-to-no recognition of the harm caused by non-consented vaginal examinations. It also does a disservice to healthcare professionals. Whilst our chapter includes cases of egregious non-consented care, we recognise that there may also be cases where genuine misunderstandings between healthcare professional and woman occur. A lack of appropriate pathways for redress prevents support and training being offered to staff in these situations, to ensure that they are empowered to support women to give or decline appropriate consent in future.

It is vital that women are able to give – or decline – consent to intimate and invasive examinations at all times. The risk of coerced or otherwise non-consented vaginal examination may have increased during Covid-19. Women and doulas have reported that, for infection control reasons, birth partners would only be admitted once the woman was in established labour, determined by vaginal examination.

It is crucial that the fundamental principles of consent and choice are not lost, even when systems are under pressure. Women must retain authority and autonomy over what happens to their body at all times. Birthrights is delighted to be the vanguard of this important issue, ensuring that women receive respectful care at all times and remain the ultimate decision-makers over what happens to their bodies. We look forward to the publication of Women’s Birthing Bodies and the Law and the collective work that comes after.

Birthrights is the UK charity dedicated to improving maternity care through a focus on human rights. We offer free advice and resources to women, their families and healthcare professionals, we train over 1000 healthcare professionals each year, and we conduct our own research, campaign for change and undertake strategic legal intervention where necessary to achieve our goals.

Rebecca Brione, Research and Partnerships Officer, Birthrights