By Phil Pennington of RNZ
North Shore Hospital is being accused of breaching patients' rights by allowing vaginal and uterine examinations without their knowledge or consent.
The New Zealand Nurses Organisation (NZNO) has confirmed the Health and Disability Commissioner is investigating its complaint about junior doctors, midwives and paramedics observing or performing obstetric and gynaecological surgeries on patients under anaesthetic who have not consented to it.
In one email from December last year, released to RNZ under the Official Information Act, a theatre nurse described watching as a registrar performed a routine vaginal examination "then stood back and told the House Officer to do the same".
"I quietly told them that unless they have consent from the patient that under the informed consent policy they cannot use the patient as a teaching body.
"The registrar replied: 'But she is a doctor'."
It did not go ahead.
In the email, titled "Lack of knowledge of WDHB informed consent policy", the nurse wrote: "Again I ask, why has nothing been done and look forward to some answers at our meeting on Tuesday."
The same nurse first blew the whistle under the Protected Disclosures Act six years ago, ringing alarm bells for the DHB's top legal and medical managers.
"A registrar brought a House Officer in to do an examination of a woman's uterus with the stated purpose of teaching. Patient was anaesthetised... No patient consent," the DHB's legal services manager wrote.
"The nurse has raised her concerns ... but feels she is not getting anywhere.
"I am very concerned at the possibility that procedures might be undertaken by students without patient consent."
NZNO professional nursing adviser Kate Weston said the nurse, who declined to be interviewed, returned to work at the hospital last year and reported some problems had worsened.
Weston, who is also on the NZNO national Women's Health College, said the union was aware of numerous cases of a failure to have a simple conversation with a patient.
The DHB asked the nurse to identify problem cases and she had passed on more than 10, she said.
Weston drew a parallel with The Unfortunate Experiment, the subject of the 1987 Cartwright Inquiry into medical procedures done on women without consent.
"You would hope in excess of 30 years [on], that there would be major improvements and that consent would be absolutely foremost in anyone's mind."
The health board has provided multiple documents to RNZ to show it has improved its policies and guidelines since the 2013 case.
In July this year, the chief medical officer emailed all senior and resident medical officers, writing that "there has been some recent discussion about informed consent in the involvement of medical students in patient care ... patient consent is essential."
Then, in August, a top gynaecologist requested instructions be added to the informed consent section in Waitematā's medical handbooks.
"It would be - medical students need explicit consent from the patient to be in theatre and ... consent for them to participate in surgery (like suture)," the gynaecologist wrote.
"All gynae[cology] patients should be consented for vaginal/internal exam under anesthesia as part of the procedure."
Waitematā District Health Board said its informed consent process was up to scratch.
The DHB said external assessments showed its informed consent processes met ethical and legal standards. Any incident must be seen in the context of handling 120,000 patients a year, it said.
NZNO said informed consent where medical students were involved had improved, and the board's policies were robust. The problem was in practice, said Ms Weston, with the DHB pushing back over patient consent by arguing trainee staff were qualified and supervised by seniors.
"There is not a problem with them being there so long as their purpose for being there, and who they are, has been fully explained to the patient - so they have the right to agree, or not.
"If they're an observer that's an explicit consent on its own, but if they are going to be taking part - cutting, stitching - there needs to be a very detailed informed consent process around that."
NZNO wrote to the DHB chief executive in 2016.
"It has been brought to NZNO's attention yet again ... of further incidences occurring in theatres where staff are failing to follow the DHB's policy in regards to obtaining the proper consent from patients prior to procedures/treatment being carried out," the letter said.
It was told consent was taken very seriously and there was regular training.
In 2018, "a number of concerning patient incidents" were raised with the hospital's child, women and family general manager and clinical director, Weston said.
The NZNO wrote to the board chair in April this year, saying "there has been and remains a poor understanding by many medical and nursing staff" of the code of patient rights "with many senior staff being of the view that North Shore is a teaching hospital".
"Therefore [those staff believe,] health professionals in training observing or undertaking procedures or examinations, especially under anaesthetic, is somehow not subject to the legal provision of full informed consent by patients," the union wrote.
This led to a meeting with board members and medical staff. The chair gave them a three-month timeframe for improvement.
NZNO wrote again to the board in July after observing no change, then backed a complaint to the Health and Disability Commissioner, Weston said.
Waitematā DHB did not tell RNZ about these interactions with the Nurses Organisation, despite them being within the scope of an Official Information Act request.
The Medical Council's updated advice on informed consent in September said that in a 'teaching environment', patients must give permission for students or observers to attend or participate. It is not explicit about junior staff.