A patient under general anaesthesia on the operating table trusts that only what has been agreed upon will take place. Yet reports from medical students suggest it is not always clear whether patients have given prior consent to a teaching examination. "Medical students must learn to perform vaginal and rectal examinations. A necessary and indispensable part of clinical practice. But even those acting within a training context are bound by the fundamental rights of the patient. And the legal consequences of absent consent are greater than many of those involved appear to appreciate, and may carry serious disciplinary, civil, and potentially even criminal implications."
Writing in Medisch Contact, PhD candidate Quirine Amelink, lecturer in health law Caressa Bol of Erasmus School of Health Policy & Management, professor of health law Martin Buijsen, and lecturer in criminal law and criminal procedure Liselotte Postma of Erasmus School of Law, examine how the expanded role of consent in the new sexual offences legislation also bears on medical practice.
"Consent is not a formality"
The legal foundation is unambiguous: "Every medical procedure requires the patient's consent. This is enshrined in the Medical Treatment Contracts Act, but it also flows from a fundamental right — the right to bodily integrity. Whoever performs an examination without consent violates that right, and fails to meet the professional standard," the authors write.
Exceptions exist. Where a patient lacks decision-making capacity, a legal representative decides. In genuine emergencies, action may be taken without consent where delay would cause serious harm. And for minor, non-invasive procedures, consent may sometimes be assumed. "A teaching examination falls into none of these categories. It is not treatment of the patient; it is an exercise, carried out for training purposes. In that case, medical necessity is absent — and that means: without explicit consent, it cannot take place. Nor is a general notice given at admission, to the effect that medical students may be involved in care, sufficient," the authors stress. "Consent may be given verbally or in writing, provided it is based on adequate prior information."
Unexpectedly far-reaching consequences
The most serious consequence of failing to obtain consent is criminal in nature. On 1 July 2024, revised sexual offences legislation came into force: coercion or force is no longer a prerequisite for an act to constitute a sexual offence. The absence of consent is sufficient, and the responsibility for obtaining that consent lies with the person performing the act.
This has direct implications for teaching examinations. "Vaginal or rectal examination constitutes, in law, penetration of the body. A patient under general anaesthesia cannot give consent. Because a teaching examination is not a medically necessary procedure, the exception that ordinarily applies to medical acts also falls away," the authors write.
This raises the question of whether a teaching examination performed without consent could be characterised as rape within the meaning of the statute. The authors are clear that such a characterisation cannot, as a matter of law, be excluded. "Consent is central, and its absence carries consequences. Whether a prosecution would in fact be brought is a matter for the Public Prosecution Service."
Who bears responsibility?
A medical student rarely performs a teaching examination on their own initiative, but rather at the direction of a supervising clinician or attending physician. It is therefore the supervisor or attending physician who carries primary responsibility for obtaining consent. "If they instruct a medical student to perform a teaching examination without consent having been sought, they act in breach of the patient's rights and may be subject to disciplinary proceedings," the authors write.
The student who carries out the procedure falls outside the scope of disciplinary law, not being registered under the Individual Healthcare Professions Act (BIG-register). "That does not, however, release them from their own responsibility to verify that consent has been obtained before the procedure takes place. Complaints proceedings may be initiated against them under the Healthcare Quality, Complaints and Disputes Act (Wkkgz)," the authors note. They also emphasise the importance of creating space for medical students to raise concerns with their supervisors without reprisal.
Where teaching examinations are conducted without consent, the hospital too bears responsibility and may face civil liability. "When a patient accepts treatment, they enter into a legal relationship with the institution. That relationship obliges the hospital to provide proper care, which includes safeguarding patients' rights. A hospital that systematically permits teaching examinations to be carried out without consent is in breach of that obligation. The patient may accordingly have a civil claim against the institution," the authors argue.
No exemption for training purposes
The law is clear, the authors stress: "Even those acting within a training context are bound by the fundamental rights of the patient." That makes robust consent procedures in teaching hospitals both urgent and necessary. "Patients must be able to trust that their rights are respected, precisely at the moment when they are least able to defend them. And medical students deserve to learn what care looks like in practice, including what it actually means to ask for that consent," the authors conclude.
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