Litigating Unauthorised Vaginal Examinations

There is no doubt that consent is required for vaginal examination during pregnancy and labour, and that a vaginal examination carried out in the absence of consent is unlawful. However, a woman who experiences unauthorised vaginal examination (UVE) and wishes to bring a civil claim against the hospital or healthcare professional faces legal complexities. For the individual woman, the starting point must be the question of remedies. What, for her, is adequate redress? This is an intensely personal question. Some women may be primarily concerned with obtaining an award of damages, whereas others might want a public acknowledgement of the wrong suffered. Some women might want their ‘day in court’, while for others that might seem like an ordeal that would further exacerbate their suffering. Personal preference is an essential consideration in choosing what litigation strategy to adopt.

There are two primary litigation avenues for a woman who is subjected to UVE: an action in tort law and an action under human rights law. The tort of negligence is the obvious choice for misadventures in the healthcare sphere, but it presents problematic limitations in the context of UVE. Establishing a breach of the duty of care should be straightforward - it would be hard to imagine a body of expert evidence defending the practice of UVE – but problems arise when it comes to damage. As has so often been commented, ‘Damage is the gist of negligence’. If you have not suffered a damage, you have no cause of action in negligence, and the law draws strict limits around what can be considered as ‘relevant damage.’ In the typical fact pattern, a woman who undergoes UVE does not suffer a physical damage, but she may suffer a psychological or emotional injury. Recovery in negligence is limited to those who suffer a recognised psychiatric injury, as opposed to emotional distress. So, while some women who undergo UVE may suffer a recognised psychiatric injury – such as, for example, post-traumatic stress disorder – many other women will not. This demonstrates the difficulty with using negligence to address UVE: it is fundamentally concerned with compensating damage rather than with redressing wrongs, or vindicating rights.

The better tort to tackle UVE may be the tort of battery, a species of trespass to the person that targets bodily contact in the absence of consent. Despite battery’s obvious relevance to the medical sphere, it is rarely litigated, and very much overshadowed by clinical negligence. Battery differs fundamentally from negligence in that it is actionable without proof of damage: actionable per se. This means that a litigant can claim for battery, even where no harm has been suffered. It also allows a claimant to seek purely declaratory relief, which means a claimant would be able to seek a declaration that the UVE was unlawful. This might be especially attractive to a claimant who felt strongly that redress must encompass a court finding that she was wronged. In contrast to negligence, battery is concerned with vindication of rights.

If rights vindication is really what is most important, perhaps the better avenue to redress is via human rights law. In England and Wales, an action may lie under Section 7 of the Human Rights Act 1998. A rich body of case law from the European Court of Human Rights recognises that gynaecological examinations performed without consent will breach Article 8, and potentially Article 3. Most instances of UVE in England and Wales will occur in a public healthcare setting. While human rights cases in the clinical sphere are relatively rare, a claim may lie against an NHS trust under Section 7, as a public authority, for UVE.

An analogous action may arise in Irish law through an action for breach of constitutional rights. While the European Convention on Human Rights has been incorporated into Irish law, the Constitution of Ireland remains the primary and more potent form of human rights protection. UVE likely infringes several constitutional rights, including the right to refuse treatment, the right to bodily integrity and the (recently developed) right to person. An important distinction from the human rights action in England and Wales, however, is that a breach of constitutional rights action can only be taken if the right in question is not otherwise protected by the law of tort. The Irish litigant, therefore, would have to choose between torts action and a human rights action, unlike her English comparator.

A key caveat is that in human rights actions in both jurisdictions, awards of damages are lower than in negligence actions. This may reflect the relative novelty of damages-oriented human rights actions, and the discomfort some courts experience when forced out of their historical comfort zone of the law of torts.

Whichever legal avenue is pursued, there is no doubt that proper redress for UVE must recognise the breach of fundamental rights that lies at the core of UVE. A vindicatory model of redress is essential to ensuring adequate protection for those fundamental rights. In addition, the particular views of the woman in question are central to determining the route to meaningful redress. This, as well as the legal complexities outlined above, will dictate the best litigation strategy.

Dr Andrea Mulligan, Assistant Professor of Law, Trinity College Dublin