The next issue that arises is whether the patient, a minor, can refuse a pelvic examination or a medical forensic examination, even if her parents consent to it. When considering this question, one must understand the difference between consent and assent.3 Informed consent is generally defined as a “legal concept that adults of sound mind should be able to make decisions about their own health care.”3 Most jurisdictions define the age of majority as 18, the minimal age at which consent can be provided, unless the patient is an emancipated minor.
Explore This IssueACEP Now: Vol 38 – No 02 – February 2019
Assent is “the expressed willingness or agreement to participate in an activity (eg, examinations).”3 The older child/adolescent must understand what is going to happen and agree to participate in the medical forensic examination, even if they legally cannot provide consent. For these patients, who are too young to provide informed consent but old enough to understand and agree to participate, the child’s “informed assent” is sought. There is no magic age of assent. It all depends on the ability of the minor to understand what is happening. If informed assent is not granted by the patient, then the examination should not be performed despite the wishes of the parent or guardian. In no instance should the patient be restrained, sedated, or forced to undergo the examination. This is tantamount to assault and battery of the patient.
When a clinician follows the desires and wishes of the minor, the parents may become upset, angry, and threatening. A calm, rational discussion of assent and consent should be conducted with the parents. It may be helpful to involve law enforcement, risk management, or the hospital’s legal counsel in these discussions. This dichotomy between what minors and their parents want can be a source of great dissatisfaction.
The final issue is, can sexual activity/virginity be assessed or determined? The concept of “virginity testing” dates back to medieval times and is still often practiced in at least 20 countries and cultures for religious, marital, and law enforcement purposes. In some countries, this practice is used to determine if a rape occurred. In some cases, these examinations are not performed by a health care professional. In October 2018, the United Nations Human Rights Office, United Nations Women, and the World Health Organization (WHO) stated that virginity testing must end as it is a painful, humiliating, and traumatic practice, constituting violence against women.4
The concept of virginity testing is based on evaluation of the hymen. This is often called the “two-finger test” to assess for vaginal muscle laxity and to determine if the hymen is intact. It is believed that if the hymen is “missing” and/or the fingers can be inserted, it indicates that the woman has been habituated to sexual intercourse. The truth is, there is no way to definitively determine virginity or if sexual activity has occurred.