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Developing a Policy for Sexual Assault Examinations on Incapacitated Patients and Patients Unable to Consent

Published online by Cambridge University Press:  01 January 2021

Mary E. Carr  and
Alda L. Moettus
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Extract

Sexual assault cases are challenging for both the patient and provider, particularly given the emotional and logistic overlays in the majority of these cases. In this article we offer sexual assault programs information and areas for consideration when developing a policy addressing sexual assault examinations on patients who are either incapacitated or otherwise unable to consent to examination. This information is based on our experience in creating and implementing such a policy for our program. We also offer the written policy and associated consent form that we designed (see Figures 1 and 2).

The protocol manual for sexual assault medical forensic examinations authored by the Department of Justice actually recommends that each and every sexual assault nurse examiner (SANE) program have “internal policies based on applicable jurisdictional statutes governing consent for treatment of vulnerable adult patients. In cases of adolescents, the jurisdictional statutes governing consent and access to the exam should be followed.“

Type
Independent
Information
Journal of Law, Medicine & Ethics , Volume 38 , Issue 3 , Fall 2010 , pp. 647 - 653
Copyright
Copyright © American Society of Law, Medicine and Ethics 2010

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References

U.S. Department of Justice Office on Violence against Women, A National Protocol for Sexual Assault Medical Forensic Examinations (Adults/Adolescents), September 2004, at 39–40 [hereinafter U.S. Department of Justice].Google Scholar
Lee, P., “In the Absence of Consent Sexual Assault, Unconsciousness and Forensic Evidence,” British Columbia Centre of Excellence for Women's Health (2001): 1–61, at 26.Google Scholar
Moskup, J. P., “Informed Consent and Refusal of Treatment: Challenges for Emergency Physicians,” Emergency Medicine Clinics of North America 24, no. 3 (2006): 605–618.CrossRefGoogle Scholar
Pierce-Weeks, J. and Campbell, P., “The Challenges Forensic Nurses Face When Their Patient Is Comatose: Addressing the Needs of Our Most Vulnerable Patient Population,” Journal of Forensic Nursing 4, no. 3 (2008): 104–110.Google Scholar
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There is no single reference that pulls together state laws on the age of consent for minors. Each provider should know the age of consent in her individual state. For example, in Minnesota: “MN Statute 144.343 Pregnancy, venereal disease, alcohol or drug abuse, abortion Subdivision 1. Minor's consent valid. Any minor may give effective consent for medical, mental and other health services to determine the presence of or to treat pregnancy and conditions associated therewith, venereal disease, alcohol and other drug abuse, and the consent of no other person is required.” “MN Statute 645.451 Definitions Subd. 2. MINOR. “Minor” means an individual under the age of 18.”Google Scholar
See Moskup, , supra, note 3.Google Scholar
Thomas, A. P., “The CSI effect: Fact or Fiction,” Yale Law Journal Pocket Part 115 (2006): 70–72.Google Scholar
See Lee, , supra, note 2.Google Scholar
General search, “sexual assault nurse examiner” “consent,” Westlaw Allstates Database, available at <http://www.westlaw.com> (last visited July 28, 2010; registration required).+(last+visited+July+28,+2010;+registration+required).>Google Scholar