New Florida Law Requiring Written Consent for Pelvic Exams: Stumbling Towards Trauma-Informed Care

Introduction
On June 18, 2020, Florida Governor Rick DeSantis approved Florida Senate Bill 698, which strictly prohibited and criminalized the non-emergent use of pelvic examinations without written consent of either the patient or legal guardian.¹ The new measure has particular implications for the flow of operations in emergency departments across Florida, as the requirements are a potential source of confusion, additional legal jeopardy, and increased bureaucratic workload. Effective as of July 1, 2020, this legislation has already garnered strong reactions from medical professionals, including the American College of Obstetrics and Gynecology, who believe this serves a “gross intrusion in the patient-physician relationship,” and whose statement is further endorsed by the Florida Medical Association.^2,3 This article describes and expands on the spoken concerns surrounding this bill as they may apply to the emergency clinician. 

Background
The original portion of Senate Bill 698 pertaining to pelvic exams was filed under Senate Bill 1470 (since withdrawn), and was modeled after California’s 2003 Senate Bill AB-663 that protects unconscious, female-assigned patients from receiving medically unnecessary pelvic exams.^3,4 Senate Bill AB-663 was written to address concerns regarding medical students performing pelvic exams without prior patient consent on patients who are under general anesthesia (such as during a surgical procedure) in order to gain a better understanding of the gynecologic pathology. At this time, nine other states have similar bills to California’s enacted, including Virginia (2007), Oregon (2011), Hawaii (2012), Iowa (2017), Illinois (2018), Utah (2019), New York (2019), Maryland (2019), and Delaware (2019).⁵ Although the American College of Obstetricians and Gynecologists endorsed the national need for prior consent in these scenarios beginning in 2011, this consent had not been legally required in most states.^6,7 Consequently, many patients would awaken from anesthesia to learn that this exam had been performed on them without their permission.^8,9 With the knowledge we have today on the importance of trauma-informed care (TIC)–that is, the need to recognize the potential previous sexual traumas of our patients and prevent re-traumatization while under our care – we must act to better protect our patients. The original Florida Senate Bill 698 was aimed at doing just that.

However, the more general verbiage in the final, approved version of Florida’s bill, which was modified and then authorized without medical association guidance, created more broad-sweeping effects than originally intended. The term “female” was removed, and the definition of pelvis was expanded to include the rectum, thus modifying the affected patient population. Furthermore, the language around consent timing and frequency remains unclear. With the addition of criminalization, prosecution, and possible revocation of medical licenses for anyone who fails to abide by this law, emergency medical providers must now take additional precaution in everyday scenarios, some of which are listed below.

Consequences for Emergency Physicians
Written consent may now be required for patients of all genders, including nonbinary, cisgender, and transgender female and male patients for:

• Internal and external pelvic exams
• Rectal exams, including those assessing for tone after initial trauma assessment
• Rectal temperatures of infants
• Pelvic exams to diagnose sexually transmitted infections,
• Pelvic exams via sonography, including those for pregnancy
• Each exam. There is no blanket consent (even for multiple exams during one visit).³
• Each person assessing the patient, student or doctor. They each must be listed on the consent form.
• Catheter sample collections
• Foley insertions

The few exceptions are:

• Court-ordered examinations for the collection of evidence,
• Emergent situations where an exam is necessary to “avert a serious risk of imminent substantial and irreversible physical impairment of a major bodily function of the patient.[1]”

Failure to comply could result in federal disciplinary action against one’s license.

A Step Forward Towards Trauma-informed Care
While Senate Bill 698 is an imperfect step towards building a culture of consent in medicine, the controversy around it highlights an area of growth in medical education and care. TIC has gained recognition over the past three decades in the fields of psychology and social work, and more recently has entered into frameworks for improving medical care, particularly for survivors of sexual violence. In “Trauma-Informed Care: What it is, and Why it’s important,” Dr. Monique Tello writes that:

Principles of TIC guide clinicians to recognize and consider the pervasiveness of trauma — including harms perpetrated in the course of medical care—and tasks them with promoting environments of consent, healing, and recovery, rather than practices that may re-traumatize survivors. These principles include safety, trustworthiness and transparency, peer support, collaboration and mutuality, empowerment of voice and choice, and emphasizing humility around cultural, historical, gender, race, and sexuality issues.¹ Mandating a consent form such as Senate Bill 698 requires only superficially addressing one component of TIC, which calls for a change in organizational culture with emphasis placed on understanding, respecting, and appropriately responding to the effects that trauma can have at all levels.[12]

Integration of TIC into a medical setting such as the emergency department can include early and respectful trauma screening for all patients when possible, establishment of a social work and mental health service-based internal trauma team on-site to allow for rapid connection to further appropriate care, introductory training for all staff and clinicians, and development of an administrative commitment to integrating a trauma informed institutional culture.¹³ California is once again leading the way with this initiative, with Medi-Cal requiring providers to undergo TIC training and paying those providers who then screen their patients for trauma (effective January 2020).¹¹ It is evident that the United States is beginning to shift towards TIC, and it is necessary that we model our laws under this framework.

Conclusion
While the original form of Senate Bill 698 was undoubtedly a well-intentioned motion towards trauma-informed care, the current form is precipitously vague. For the time being, this move forward towards TIC is certainly a positive; however, we will hopefully see a version of this measure that can be more easily integrated into medical infrastructure in the future. Medical schools and emergency medicine residencies can take steps to integrate trauma-informed care into their curricula.

A template consent form from the Florida Medical Association can be found here.

References

1. Book L, Stewart L. Senate Bill 698 (2020) – The Florida Senate. Flsenate.gov. https://www.flsenate.gov/Session/Bill/2020/698/. Published 2020. Accessed July 13, 2020.
2. Phipps M, Benrubi G. ACOG Statement on New Florida Law Requiring Written Consent for Pelvic Examinations. Acog.org. https://www.acog.org/news/news-releases/2020/06/acog-statement-on-newflorida-law-requiring-written-consent-for-pelvic-examinations. Published 2020. Accessed July 13, 2020.
3. Scott J. Analysis Of Florida’s New Law Regarding Pelvic Examinations. Florida Medical Association; 2020:1-2. https://www.flmedical.org/florida/Florida_Public/Docs/Legis/Legal-Update-Summary-Update-SB-698.pdf. Accessed July 13, 2020.
4. California Senate Bill AB 663. Vol 2281.http://www.leginfo.ca.gov/pub/0304/statute/ch_0601-0650/ch_644_st_2003_ab_663; 2020.
5. Chong A, Monzel A, Hubaishy J, Costella K. Unauthorized Pelvic Exams: Public Engagement Initiative—The Epstein Health Law and Policy Program. The Epstein Health Law and Policy Program. https://www.epsteinprogram.com/pelvic-exams. Published 2020. Accessed July 13, 2020.
6. American College of Obstetricians and Gynecologists. Committee on Education. Committee opinion no. 500: Professional responsibilities in obstetric-gynecologic medical education and training. Obstet Gynecol. 2011;118(2 Pt 1):400-4.
7. Hammoud M, Spector-Bagdady K, OʼReilly M, Major C, Baecher-Lind L. Consent for the pelvic examination under anesthesia by medical students. Obstetrics & Gynecology. 2019;134(6):1303-1307. doi:10.1097/aog.0000000000003560
8. Hsieh P. Pelvic Exams On Anesthetized Women Without Consent: A Troubling And Outdated Practice. Forbes. https://www.forbes.com/sites/paulhsieh/2018/05/14/pelvic-exams-on-anesthetized-womenwithout- consent-a-troubling-and-outdated-practice/#6636449d7846. Published 2020. Accessed July 13, 2020.
9. Goldberg E. “She Didn’t Want a Pelvic Exam. She Received One Anyway.” Nytimes.com. https://www.nytimes.com/2020/02/17/health/pelvic-medical-exam-unconscious.html. Published 2020. Accessed July 13, 2020.
10. Tello M. Trauma-informed care: What it is, and why it’s important. In: Harvard Health Blog 2018.
11. Trauma Informed Care. https://www.dhcs.ca.gov/provgovpart/Pages/TraumaCare.aspx. Published 2020. Accessed July 13, 2020.
12. Substance Abuse and Mental Health Services Administration. (2014). Concept of Trauma and Guidance for a Trauma-Informed Care Approach. In. U.S. Department of Health and Human Services.
13. Corbin TJ, Rich JA, Bloom SL, Delgado D, Rich LJ, Wilson AS. Developing a trauma-informed, emergency department-based intervention for victims of urban violence. J Trauma Dissociation. 2011;12(5):510-525.
14. Harris M, Fallot RD. Trauma-informed inpatient services. New Dir Ment Health Serv. 2001(89):33-46.