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It is distressing to read, more than 23 years after the introduction of the Code of Health and Disability Consumers Rights, claims of gynaecological examinations conducted without informed consent.
Let us not forget what led to the development of the code — the Cartwright Inquiry into what was dubbed (by Prof Sir David Skegg, incidentally) the unfortunate experiment at Auckland’s National Women’s Hospital. It was Prof Herbert Green’s study into the natural history of carcinoma in situ of the cervix (CIS) which was under the microscope by Silvia Cartwright’s 1987 inquiry. Although by the mid-1960s CIS was widely accepted as a precursor to cervical cancer, Prof Green doubted this and began studying women with CIS, observing them rather than treating them. Some women died and many went on to develop cancer. None gave consent for this experiment which the then-Judge Cartwright found went on for more than 20 years.
The concern which became public through RNZ reports this week relates to gynaecological examinations being carried out at the Waitemata District Health Board without the consent of patients while they are under anaesthetic, apparently for the purposes of training.
The issue was raised by a North Shore Hospital theatre nurse whistleblower back in 2013, who, upon returning to the hospital last year, considered the situation had worsened. The New Zealand Nurses Organisation has asked the Health and Disability Commissioner to investigate the concerns which relate to junior doctors, midwives and paramedics observing or participating in procedures in a teaching situation. For its part, the board is adamant the union’s concerns are outdated, that it has improved its policies and guidelines since 2013 and says any incident should be seen in the context of handling 120,000 patients a year. This reasoning is dubious.
It seems the NZNO approves of the policies but is not convinced they are translating into good practice. That is the thing about policies. They can be brilliant, but if they are not followed or not followed consistently, they quickly lose their lustre. The DHB’s website says written consent is required if a student is to perform an intimate examination. It has been disconcerting to hear some of the discussion around this where the emphasis appears to be on informing the patient about what is going to take place with less attention paid to the consent side of the situation. Patients have the right to refuse to allow training staff to observe or participate in their treatment.
Whatever the outcome of the decision to refer this to the commissioner, hopefully, the publicity around this case will make other DHBs examine their behaviour in this regard to ensure it is up to par.
It also highlights the importance of whistleblowers in the health system, and not for the first time. It was the treatment of Neil Pugmire, a psychiatric nurse at Lake Alice Hospital, who raised the alarm about the release of dangerous patients, which led to the development of the Protected Disclosures Act 2000 to protect whistleblowers.
While the Act can protect whistleblowers who follow the correct procedure from some retaliation, theirs is still a difficult path.
University of Minnesota bioethicist Prof Carl Elliott, who visited Dunedin recently to address the combined New Zealand Bioethics and Australasian Association of Bioethics and Health Law conference, points out whistleblowers sacrifice much, but if they are not forgotten, they are vilified.
He is sad so many of them have not been properly recognised for what they did. He sees the way New Zealand dealt with the unfortunate experiment as something the rest of the world could learn from, but points out that whistleblowers Bill McIndoe, Jock McLean and Ron Jones have never been honoured for what they did, which he sees as a huge oversight.
Maybe it is time to consider how we might properly celebrate our whistleblowers, wherever they may be.