Written by: Shelby Harriel-Hidlebaugh, M.Ed. and BA
The medical setting is expected to be a sanctuary of dignity and autonomy. However, sensitive exams and other intimate tasks conducted without consent can leave patients feeling violated. Informed consent is a cornerstone of ethical medical practice. It establishes a foundation of trust between patients and healthcare providers and protects patients’ autonomy over their own bodies. However, intimate medical exams and tasks performed without explicit consent continue to undermine these principles.
In order to address concerns about these unauthorized practices, an increasing number of states have passed laws protecting the bodily autonomy of patients. Additionally, the Centers for Medicare & Medicaid Services released revisions and clarifications to the Hospital Interpretive Guidelines for Informed Consent simultaneously with a letter by the Department of Health and Human Services to address medical professionals performing non-consensual intimate exams, particularly on patients under anesthesia.[1] Yet, as bioethicists and others have illustrated, these directives and laws are inadequate.[2]
To illustrate this point, a recent study published in October 2024 involving nearly 300 osteopathic medical students, 93.1% of them indicated that they were unaware of whether their state even has statutes regarding explicit consent for performing pelvic exams on anesthetized patients. Approximately 83.5% considered performing a non-consensual pelvic exam under anesthesia akin to sexual assault. Yet, out of those who acknowledged that they had performed pelvic exams, 74% of them either admitted that they did so without explicit consent or declined to answer the question. And this coming after 99.9% of them expressed a correct understanding of what constitutes informed consent.[3]
State statutes and institutional policies fail in fully protecting bodily privacy and rights for all patients in medical settings. While unauthorized sensitive exams have been garnering an increasing amount of attention from the media, legislators, bioethicists, and the medical community, far less focus has been placed on tasks such as urinary catheter insertions, gown and underwear removal, groin sanitization, pubic hair removal and other such intimately invasive functions conducted during prep for non-intimate elective surgical procedures.[4] These intimate encounters can result in the same psychological harm caused by non-consensual sensitive exams.[5] And given that these tasks are performed under anesthesia and without prior disclosure, they raise significant ethical, legal, and institutional concerns. The reliance on patient incapacitation to perform such tasks does not absolve medical professionals of their ethical and legal responsibilities.
This article explores the legal framework surrounding these practices, emphasizing case law, Federal law, and institutional policies while calling for systemic reform to secure equal protection for all patients from all unwanted and non-consensual intimate encounters before, during, and after elective medical procedures.
Relevant Case Law: Protecting Bodily Privacy
Foundations of Bodily Privacy
According to the American Medical Association’s (AMA) code of ethics, physical privacy is one aspect of patient privacy that medical personnel must protect in all settings as “an expression of respect for patient autonomy and a prerequisite of trust.”[6]
Bodily privacy extends beyond the focus of medical associations and institutions. It is also a fundamental legal principle upheld by multiple judicial rulings. In York v. Story (9th Circuit Court), the court emphasized that the right to privacy over one’s naked body is integral to self-respect and dignity. The decision underscored that any unauthorized exposure or intrusion violates an individual’s constitutional protections.[7]
The right to bodily privacy extends into medical settings, as established in Local 567 American Fed. v. Michigan Council 25 (E.D. Mich. 1986). Here, the court affirmed that hospitalization does not negate a person’s right to bodily privacy when it noted that, “It would be a strange doctrine … that would decree that the sanctity of the right of privacy…fully respected in a public restroom, is forfeited by the fact of falling ill and becoming hospitalized.” It further stated that privacy violation—whether by a healthcare provider or another individual—remains significant regardless of gender.[8]
In Backus v. Baptist Medical Center, the court upheld a hospital’s decision to prevent male nurses from being assigned to labor and delivery units. The ruling recognized that intimately invasive tasks such as intimate hair removal performed by unselected individuals could violate patients’ constitutional right to privacy. The judgment further affirmed that such violations are not mitigated by the healthcare professional’s intent or qualifications, placing the patient’s perception, comfort, autonomy, and well-being at the forefront.[9]
Institutional and Judicial Recognition of Psychological Harm in Medical Settings
The Federation of State Medical Boards (FSMB) defines patient harm as “inclusive of physical and emotional harm, resulting distrust in the medical system and avoidance of future medical treatment, and other related effects of trauma.”[10] Further, the National Council of State Boards of Nursing (NCSBN) states that “Sexual boundary violations result in significant and enduring harm to patients.”[11]
Courts have also acknowledged the psychological harm that results from unauthorized intimate medical contact. The ruling in Backus v. Baptist Medical Center highlighted the emotional and psychological toll of privacy violations, underscoring the need for healthcare providers to prioritize patients’ perceptions of dignity and autonomy over institutional convenience or routine practices.[12]
The potential to inflict lifelong psychological harm underscores the importance of consent.
Consent
Standards of Consent
Federal law provides a clear framework for understanding consent as a "freely given agreement to the conduct at issue by a competent person." Importantly, it stipulates that unconscious, incapacitated, or unaware individuals cannot provide valid consent.[13] Beyond Federal law, state laws and Title IX policies that govern teaching hospitals at associated universities address consent. For example, the University of Iowa’s sexual misconduct policy defines consent as “knowing, voluntary, and clear permission by word or unambiguous action.” This provides a straightforward definition of consent as it applies specifically to intimate areas of the body defined by the policy as “breasts, buttock, groin, or genitals.”[14] The failure to secure explicit consent for intimate tasks—such as gown or underwear removal, pubic hair removal, groin sanitization, or urinary catheterization—contradicts these policies, placing patients at risk of harm and retraumatization.
Implied Consent – A Flawed Justification
Healthcare providers often justify failing to disclose intimate medical tasks by invoking the concept of implied consent, assuming that patients understand and agree to all preparatory procedures associated with a surgery or treatment. However, the invasiveness of manipulating private body parts not directly involved in the procedure renders it unique to the intrusiveness of general procedure. Thus, the implied consent approach undermines the ethical principle of informed consent by creating a significant gap in the important communication process. Patients cannot consent to procedures they are unaware of, and withholding information about intimate tasks denies them the opportunity to make an informed decision with regards to access of their private areas. Without such agreement, intimate functions performed prior to, during, or after non-intimate, elective procedures would theoretically constitute unauthorized and offensive touching regardless of their medical necessity. Legal and institutional definitions of consent for sexual contact directly challenges the medical practice of relying on implied consent for intimate tasks performed without explicit patient knowledge.
While the medical community asserts that it is their professional duty to safeguard their patients’ dignity and bodily privacy, assuming that patients have implicitly consented to intimate preparatory tasks for a non-intimate procedure not only denies them the right refuse treatment but also to safeguard their bodily sanctity themselves while simultaneously forcing patients to adhere to the provider’s concept of dignity, rather than allowing patients to assert their own values. Ultimately, when medical personnel subject patients to intimate procedures and tasks to which they have not truly consented, they deny the autonomy and humanity of their patients, which is a core ethical principle of the medical profession.
The principle is clear: patients must be fully informed and explicitly agree to visual or physical access of the private areas of their bodies outside a medical emergency.
Sexual Misconduct Concerns and Intimate Procedures and Tasks
The absence of explicit consent for intimate medical tasks parallels behaviors classified as sexual misconduct in other contexts. Under Federal law, non-consensual sexual contact—including contact with genitals, breasts, or other intimate areas—either directly or through clothing is classified as sexual misconduct.[15]
State law and universities model their statutes and policies after sexual misconduct Federal laws. So, too, do medical organizations and associations who also address sexual boundary violations. For example, the NCSBN notes that “Clear sexual boundaries are crucial to patient safety” and specifically classifies “Removing a patient’s … clothing, gown or draping without consent, [or] emergent medical necessity” as sexual misconduct.[16] The FSMB bans physical intimate contact “without…explanation of its necessity, and without obtaining informed consent.”[17]
FSNB and NCSBN policies also state that sexual misconduct includes behavior that “can have the effect of embarrassing, shaming, humiliating or demeaning the patient.”[18]
Accommodating Vulnerable Populations
Americans with Disabilities Act (ADA)
The ADA extends additional protections to individuals with PTSD and other disabilities, requiring accommodations to prevent retraumatization.[19] Medical tasks and procedures involving intimate areas without explicit consent can exacerbate psychological harm, particularly for individuals with histories of sexual trauma. Providers – including universities overseeing associated hospitals – who fail to obtain explicit consent for such actions as intimate preparatory tasks denies these patients the opportunity to assert their boundaries, further marginalizing their needs. Thus, they inadvertently violate these legal protections. Comprehensive consent policies that prioritize patient awareness and agreement are essential to fulfilling these obligations.
Recommendations for Reform
Legislative Action
1. Mandating Explicit Consent
- Federal and state governments should enact laws requiring explicit consent for all intimate medical tasks, including preparatory steps like gown removal, pubic hair clipping, groin sanitation, urinary catheter insertion and other such procedures.
- These laws should mandate detailed discussions of these tasks during the informed consent process and require written documentation of patient agreement.
2. Enforcing Accountability
- Oversight mechanisms should be strengthened to ensure compliance with consent standards. Medical boards, institutions, facilities, and universities must be held accountable for violations, with penalties such as fines, suspensions, or revocation of licenses.
Institutional Reforms
1. Revamping Consent Practices
- Universities and hospitals should revise their informed consent processes to include detailed explanations of intimate preparatory tasks. Patients must be informed of all key aspects of their care and given the opportunity to agree or refuse.
2. Promoting Transparency in Medical Education
- Teaching hospitals must disclose the involvement of medical students or residents in procedures – especially those of an intimate nature – and secure explicit patient consent. Transparency is critical to maintaining trust and ethical standards in medical training.
Cultural and Ethical Shift
1. Prioritizing Patient Autonomy
- The medical community must prioritize patients’ perceptions of dignity and autonomy, recognizing that intimate medical tasks are not trivial to those being treated.
2. Educating Providers
- Training programs should emphasize the importance of explicit consent and the ethical implications of intimate medical tasks. Providers must understand the psychological and legal consequences of failing to secure patient agreement
Conclusion
Given the fact that Federal and state law acknowledges and protects the special status attached to individuals’ intimate spaces, medical professionals should comply with these regulations because “patients do not think of their intimate regions in a detached or neutral way.”[20] Case law, Federal law, medical associations, and university and institutional policies converge on the necessity of respecting bodily autonomy and securing explicit consent for medical procedures. Despite these established frameworks, systemic failures in enforcement and the reliance on implied consent perpetuate harmful practices that violate patient rights and erode trust in healthcare institutions. Legislative reforms, institutional accountability, and a cultural shift toward prioritizing the patient’s– rather than the provider’s – notion of dignity are essential to restoring trust, preventing harm, and aligning medical practices with ethical and legal standards.
About the Author
Shelby Harriel-Hidlebaugh has an M.Ed. and BA from the University of Southern Mississippi. She is a mathematics instructor at Pearl River Community College. She has a published article on this topic in Voices in Bioethics, November 2023. https://journals.library.columbia.edu/index.php/bioethics/article/view/11927
Copyright © 2024 American Institute of Healthcare Compliance All Rights Reserved
[1] CMS Revisions and Clarifications to Hospital Interpretive Guidelines for Informed Consent. April 1, 2024. Retrieved from https://www.cms.gov/files/document/qso-24-10-hospitals.pdf; HHS Letter to the nation’s teaching hospitals and medical schools. April 1, 2024. https://www.hhs.gov/about/news/2024/04/01/letter-to-the-nations-teaching-hospitals-and-medical-schools.html
[2] Neff G. Comply with Privacy Rights to Avoid Unconsented Intimate Exams. American Institute of Healthcare Compliance. November 12, 2024. https://aihc-assn.org/comply-with-privacy-rights-to-avoid-unconsented-intimate-exams/; Bruce L. A Pot Ignored Boils On: Sustained Calls for Explicit Consent of Intimate Medical Exams. HEC Forum. 2020 Jun;32(2):125-145. doi: 10.1007/s10730-020-09399-4. PMID: 32152870; PMCID: PMC7223770; Friesen P, Wilson RF, Kim S, Goedken J. Consent for Intimate Exams on Unconscious Patients: Sharpening Legislative Efforts. Hastings Cent Rep. 2022 Jan;52(1):28-31. doi: 10.1002/hast.1337. PMID: 35143067
[3] Rachel Cutting, Varsha Reddy, Sneha Polam, Nicole Neiman, and David Manna (2024). Prevalence of pelvic examinations on anesthetized patients without informed consent. Journal of Osteopathic Medicine. DOI: https://doi.org/10.1515/jom-2024-0058
[4] Harriel - Hidlebaugh, S. (2023). Not Just Non-Consensual Pelvic Exams: The Need for Expressed Consent for All Intimate Tasks for Elective Procedures. Voices in Bioethics, 9. https://doi.org/10.52214/vib.v9i.11927
[5] For patient narratives of bodily privacy violations and their effects, see Medical Patient Modesty, www.patientmodesty.org/modesty.aspx
[6] American Medical Association, “Privacy in Health Care,” Chapter 3.1.1; https://code-medical-ethics.ama-assn.org/ethics-opinions/privacy-health-care
[7] York v. Story, https://casetext.com/case/york-v-story
[8] Local 567 American Fed. v. Michigan Council 25, 635 F. Supp. 1010 (E.D. Mich. 1986). https://law.justia.com/cases/federal/district-courts/FSupp/635/1010/1438741/
[9] Backus v. Baptist Medical Ct., https://casetext.com/case/backus-v-baptist-medical-ctr
[10] Federation of State Medical Boards, “Physician Sexual Misconduct”
[11] National Council of State Boards of Nursing, “Practical Guidelines for Boards of Nursing on Sexual Misconduct Cases,” https://ncsbn.org/public-files/Sexual_Misconduct_Book_web.pdf
[12] Backus v. Baptist Medical Ct., https://casetext.com/case/backus-v-baptist-medical-ctr
[13] https://www.law.cornell.edu/uscode/text/10/920
[15] Department of Justice, https://uscode.house.gov/view.xhtml?req=(title:18%20section:2246%20edition:prelim)
[16] National Council of State Boards of Nursing, “Practical Guidelines for Boards of Nursing on Sexual Misconduct Cases,” https://ncsbn.org/public-files/Sexual_Misconduct_Book_web.pdf
[17] Federation of State Medical Board, “Physician Sexual Misconduct,” https://www.fsmb.org/siteassets/advocacy/policies/report-of-workgroup-on-sexual-misconduct-adopted-version.pdf
[18] Federation of State Medical Boards, “Physician Sexual Misconduct”; the NCSBN uses very similar language stating that sexual misconduct includes “contact which may reasonably be interpreted as demeaning, humiliating, embarrassing, threatening, or harming a patient.”
[19] Introduction to the Americans with Disabilities Act, https://www.ada.gov/topics/intro-to-ada/
[20] Bruce L. “A Pot Ignored Boils On”
