Testing for blood-borne viruses after a needle-stick injury in patients who lack the capacity to consent

A conclusion that a person lacks decision making capacity is not an off-switch for his or her rights¹

It is usual practice after a needle-stick injury for the source patient, with consent, to be tested for blood-borne viruses (BBV) to guide the need for HIV prophylaxis and to organise appropriate follow-up of the recipient. If the source patient cannot give consent and therefore is not tested then this uncertainty can heighten the injury-associated anxiety and result in unnecessary prophylaxis for the recipient. General Medical Council (GMC) guidance states that BBV testing for the sole benefit of a healthcare worker is unlawful and may only be performed if it is in the best interests of the patient.² The GMC, however, does not clearly define the best interests of the patient in this scenario, so the British Medical Association (BMA) issued guidance in 2016 to fill this gap.³ This letter sets out to summarise the ethical arguments that underpin the BMA guidance, illustrate how this guidance could be put into practice and raise debate on this issue.

There are two main strands to the guidance, the first focuses on clinical best interest. It may be argued that for most individuals it is in their best interest to know whether they have a BBV as they are likely to benefit from current or future care of that infection. Often the question asked by the clinician at the time of such an incident is ‘will it influence current management’; however, the guidance encourages the clinician to think more broadly and holistically, which makes the question of the timeliness of testing redundant.

The second strand focuses on the broader best interest of an individual, which encompasses a much more person-centred approach. The limited evidence available suggests that only the minority of patients do not give consent for BBV testing when they do have capacity.⁴ So, why might an individual be tested primarily for the interests of another? There are several ethical imperatives that may explain such altruism and these include altruism in itself, reciprocity of care and recognition of the importance of the relationship between the patient and healthcare worker, for the greater good of all patients as all patients would benefit from the health professional being appropriately treated and being able to continue working and fulfilling the duties of the responsible citizen.

The guidance invites the user to construct a balance sheet of benefits and dis-benefits of testing, diligently following the steps listed in Box 1. In essence, the BMA guidance highlights that testing that benefits a third party and patient best interest are not mutually exclusive and that patients who lack capacity must not have their best interests neglected.

Box 1.

A guide to testing

Does the patient have capacity? Is the lack of capacity likely to be temporary?** Has the patient recently been tested for blood-borne viruses? A thorough search of both primary and secondary care records is necessary before proceeding further. If prolonged lack of capacity, does the patient have an attorney or a deputy with the legal authority to make decisions for him or her?** If there is no legal deputy then speak to friends and family to establish whether the patient would have ordinarily objected to being tested for this purpose? If there is no recent test result available and there is no evidence that the patient would have ordinarily objected then testing can proceed To minimise harm, testing should be performed on a recently stored sample or if a new sample is needed it should be taken at the same time as blood is taken for other clinical purposes. Once the patient regains capacity they should be advised of the needle-stick injury and any testing that was undertaken and appropriate information should be provided so that the patient can make an informed decision about whether to receive the result. It should be accepted that some patients may not want to know the results but it must be remembered that consent is an ongoing process and a patient who declines to receive the result at a certain point may decide otherwise in the future and adequate support should be put into place so that a change in consent can be accommodated.

*There is no specific time frame for ‘temporary’ but a patient undergoing anaesthetic for a surgical procedure should be considered in this category and in other situations clinical judgement should be exercised.

**Being next of kin alone does not confer legal power for decision making

Conflicts of interest

The author has no conflicts of interest.