• Ethics
• Ethics- Medical
• Obstetrics
• Informed Consent
• Women

van der Pijl et al 1 argue that if ‘stakes are high’ and there is ‘clear conviction by the care provider’ that it is ‘necessary’, episiotomy may be given after ‘opt-out consent’. Here I caution against the applicability of their approach to vaginal examination (VE): another routine intervention in birth to which they suggest their discussion may apply. I highlight three concerns: first, the subjective and unjustified nature of assessments of ‘necessity’; second, the inadequacy of current consent practices in relation to VE; and third, the significant risk of perpetuating under-recognised harms associated with unwanted or unconsented VE. I argue that opt-out consent cannot be ethically justified for VE. Its use would result in further weakening of consent practices, circumvention of individuals’ autonomy, and greater harm for women and birthing people.

At the outset, it is important to recognise that the authors do not claim that their approach should be applied to VE, merely that their discussion may have relevance to consent for other interventions beyond episiotomy ‘where consent is also frequently lacking, and which are under-researched’, including VE.1 Nonetheless, it is easy to assume that episiotomy and VE are sufficiently similar that their analysis might be transferred wholesale. I disagree. There are similarities: both interventions are performed on ‘the most intimate and socially sensitive body parts’1; both can be perceived as invasive, traumatising and distressing.1–3 Both appear to be commonly unconsented: the authors note that ‘43% of women who had an episiotomy in a high-resource setting…report not having explicitly consented’.1 Data from the UK in 2005—the most recent of which I am aware—similarly state that over 42% of women asked felt that they could not ‘always refuse’ a VE in labour, and over 20% did not feel they had always given consent before a VE was carried out.3

Yet, beyond this, we see significant divergence. The authors note that episiotomy is a single incident, usually done very late in labour to facilitate an imminent birth, and indeed they limit opt-out consent further to situations of an unresponsive birthing person and a time-sensitive need to intervene to ‘save a baby’s life’.1 VE, by contrast, is both routine—occurring in almost all labours overseen by healthcarers—but also regularised, occurring at scheduled timepoints throughout labour to assess labour progress by reference to factors such as cervical thinning and dilation.4 Implicit in the use of VE is the concept of sequential examination, with the findings from one forming the baseline against which findings of the next examination will be compared. While no individual VE may reach the authors’ conceptual threshold of immediate singular necessity, each one forms an apparently necessary part of the whole series, with VEs at intervals prescribed in clinical guidelines ‘oriented to as normative’ by healthcarers.5 An assumption of necessity is taken up by both healthcarers and birthing people, with VEs an ‘expected and predictable part of labour’, and birthing people expressing ‘a level of resignation’ when asked about them antenatally.5 This all holds despite the absence of clinical evidence for the intervention’s efficacy as a method of assessing labour progress.4

Recent conversation analysis of how consent decisions are made in UK maternity units highlights the way in which interactions about individual VEs are framed within this normative pattern, with decisions about when (rather than whether) to carry out examinations ‘lying in the…domain’ of healthcarers (here midwives) rather than birthing people.5 The giving of consent is ‘the default choice’,1 with ‘the design of the initiating turns tend(ing) to expect agreement’.5

The researchers in that study suggest that VE decisions follow a common architecture. The inevitably of VEs is pronounced by healthcarers from the start of care (‘So we examine you every 4 hours’), with the next examination presumed and forewarned in relation to how much time has passed since the last.5 Consent for each individual examination in the form of ‘some form of [verbal] response’ is pursued, affording what the researchers call ‘multiple opportunities to participate in decision-making’.5 However, the ‘consent’ interactions recorded are at the thinnest end of simple consent (‘would that be OK to examine you like we planned?’, ‘Are you ready…?’),5 without any of the factors in place which van der Pijl et al suggest might ethically justify it, such as information requirements being met or a minimal risk of harm. The only shared background appears to be an expectation that VEs will happen, making it impossible to differentiate consent from compliance. On this measure, neither the instrumental nor intrinsic purposes of consent are met.

The gap between these documented practices and a form of de facto opt-out consent lacking any of the safeguards van der Pijl et al outline is slim. Explicitly supporting opt-out consent could remove the last vestiges of autonomous consent, for no benefit. The authors’ careful limits around the applicability of opt-out consent to episiotomy do not transfer. VE is rarely, if ever, time-critical, such that it is impossible to wait to seek explicit and informed consent. Alternative ways to judge labour progress are available.4 Yet subjectivity about necessity is likely to be even greater, shaped by practice norms rather than clinical need.

Supporting opt-out consent for VE would also likely perpetuate significant harm. As the authors note, consent is important for demonstrating respect for autonomy and bodily integrity, particularly in the context of labour and genital touching.1 As important as these factors are in relation to episiotomy, they arguably matter even more when considering VE—digital penetration of the vagina. Unwanted and unconsented VEs are often described by those who experience them in terms of ‘sexual assault’ or rape, with the associated long-term trauma responses.2 Even in the absence of overt sexual connotations, birthing people regularly find even consented VEs to be painful, anxiety-provoking and distressing.2 These harms are often underestimated and overlooked and may be unanticipated by the birthing person themselves. This context only serves to emphasise the importance of the intrinsic value of consent for VE and thus the need to focus on how to strengthen, not weaken, consent practices.