Learning Objectives:-

If staff tests a patient's blood without their consent, and this test is solely for the benefit of the healthcare worker who has had the needlestick injury, then it could be argued that this is unlawful under the Human Tissue Act 2004 and the Mental Capacity Act 2005.

However under Article 2 of the Human Rights Act, the healthcare worker's right to know could be deemed greater than the right of the patient not to know.

No such cases have gone to court and so no precedent has been set.

• It is likely to be in the patient's best interest to establish a diagnosis of HIV infection as this enables treatment to commence as soon as possible. Testing a patient who lacks the capacity to consent is therefore lawful. In a low risk patient, would taking blood for BBV testing be in the patient's best interest?
• The patient would be likely to provide consent, if asked, to avoid the healthcare worker having to suffer the side effects of unnecessary medication or the anxiety of not knowing the patient's BBV status. The problem with this argument is that it cannot be assumed that consent would be forthcoming - in fact, a recent paper showed that one patient refused to be tested when they regained capacity (1%).
• It has been argued that the healthcare worker has a right to know the BBV (blood borne virus) status of the patient if they have sustained a needlestick injury. Under Article 2 of the Human Rights Act, the healthcare worker's right to know could be deemed greater than the right of the patient not to know. This duty of care is to the employer to ensure that the rights of the workers is respected. This has not been formally tested in a court of law, but this argument currently appears to be unlawful.

The GMC advises: 'if the patient refuses testing, is unable to give consentcor does not regain full consciousness within 48 h, you should reconsider the severity of risk to yourself...You should not arrange testing against the patient's wishes or without consent other than in exceptional circumstances, for example where you have good reason to think that the patient may have a condition such as HIV for which prophylactic treatment is available. In such cases you may test an existing blood sample taken for other purposes' (paragraph 9)

However doctors must be able to justify their decision if a complaint is made to the local trust or the GMC.

Hospital policy on needlestick injury:

• Assessment of risk. Healthcare professionals are at significant risk of NSIs and thus precautions should be in place (current estimates that 17% all injuries). A PMHx is key, ?past blood transfusion, ?tattoos ?piercings ?drug use ?unprotected sex within the last 3 months
• HIV transmission from artery/vein source is 0.3%, Hep B is 1/3, Hep C is 1/30.
• All bloods/fluids should be treated as potentially infectious thus gloves/gown to be worn as appropriate & safe disposal of equipment
• Hep B immunization as standard for HCP
• All HCP cuts/abrasions should be covered with waterproof plaster

Emergency protocol:

• Encourage bleeding (no sucking)
• Wash with soap/water
• Irrigate with lots of water
• PEP within 1 hour of injury
• Report injury (GP, OH, counselling)

What happens in reality? Burrows & Padkin (2010) surveyed needlestick incidencts in ITU and NSI. In 90% of NSI incidents there was no knowledge of the blood-bourne infection status of the unconscious patients.

64% of patients were subsequently tested at the time of the injury for BBVs without consent, and of these, only 61% were informed of the test on regaining consciousness. Interestingly, 8% of patients were not informed about the test after regaining consciousness. For the remaining patients, it was unknown whether they were informed about the tests that had been conducted.

Of the unconscious patients tested, 25% of those tested had BBVs and was a first diagnosis in 15% of the initial population. 60% was asked consent after waking up for a BBV test. Only 1% when regained consciousness refused BBV testing.

• Royal College of Nursing: Needlestick injuries - The point of prevention
• NHS Scotland: Needlestick injury - Sharpen your awareness
• Burrows LA, Padkin A. "A survey of the management of needlestick injuries from incapacitated patients in intensive care units" Anaesthesia. 2010 Sep;65(9):880-4

newbie says...

This is a really interesting situation, and one which is probably encountered commonly in clinical practice. I didn't realise that there is still no precedent on these types of cases

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