By Charles Foster and Jonathan Herring
Scene 1: An Intensive Care Unit
Like many patients in ICU, X is incapacitous. He also needs a lot of care. Much of that care involves needles. Late at night, tired and harassed, Nurse Y is trying to give X an intravenous injection. As happens very commonly, she sticks herself with the needle.
Nurse Y is worried sick. Perhaps she will catch HIV, hepatitis, or some other serious blood-borne infection? She goes tearfully to the Consultant in charge.
‘Don’t worry’, he says. ‘We’ll start you on the regular post-exposure prophylaxis. But to be even safer, we’ll test some of X’s blood for the common infections. I doubt he’ll be positive, but if he is, we’ll start you straight away on the necessary treatment. We needn’t take any more blood: there are plenty of samples already available.’
A sample of blood is submitted for analysis.
Scene 2: The Royal Courts of Justice: Argument
Barrister 1, acting for X
Testing without consent was unlawful. X was incapacitous. He had given no prior consent to the taking of his blood. The only justification for any intervention affecting an incapacitous patient is that it is in their best interests. The taking of blood here was not. It was done because it was perceived as being in the interests of Nurse Y. Had the blood been taken specifically for these purposes the taking would have constituted an assault.
This is a plain breach of X’s rights under Article 8 of the European Convention on Human Rights (‘ECHR’). It’s also a criminal offence under s. 5 of the Human Tissue Act 2004, punishable after conviction on indictment with imprisonment of up to 3 years, a fine, or both. The testing was plainly an activity falling within s. 1(1) of the Act, and it could not have been reasonably believed either that it did not fall within that subsection, or that it was done with appropriate consent. Hence the statutory defence under s. 5(1) cannot apply.
Barrister 2, acting for Y
M’learned friend should have read the Act more carefully. I respectfully invite his attention to s. 6. It covers this situation, and says that consent for an activity (in our case testing) shall be deemed to exist if it is done in circumstances of a kind specified by Regulations made under that section. And of course there are Regulations: they are the Human Tissue Act 2004 (Persons Who Lack Capacity to Consent and Transplants) Regulations 2006. Just look at Regulation 3(2): Testing of ‘material from P’s body’ is permitted where it is done ‘for a purpose specified in paragraph 4 or 7 of Part 1 of Schedule 1 to the Act.’ One of those purposes is ‘obtaining scientific or medical information about a living or deceased person which may be relevant to any other person.’ That’s precisely what has been done here.
The Article 8 argument is a non-starter. First, there’s no prima facie breach of X’s Article 8 right. In deciding whether an incapacitous person’s Article 8 rights have been breached, one has to have regard to their best interests or, possibly, applying a substituted judgment approach, what, had they been capacitous, they would have thought their best interests to be. Autonomy and dignity find their home within Article 8, and one can’t talk meaningfully about best interests without talking about autonomy and dignity. It is plainly in X’s best interests for the clinicians to know whether he has a blood borne infection. If he has, the infection might be treatable. Even if Article 8 doesn’t give this result, Articles 2 and 3, which protects X’s right to life and bodily integrity, do.
There is, in any event, an immensely powerful and persuasive article by Herring and Foster, recently endorsed by the Court of Appeal [1], which contends that, properly viewed, it is often in one’s best interests to act altruistically. Here, it is in X’s best interests to help Y. I will enlarge on this argument should his Lordship wish me to do so.
But even if there’s a prima facie breach of Article 8(1), the wider societal interests reflected in 8(2) mean that there is no overall breach. 8(2) provides: ‘There shall be no interference with the exercise of [the right in 8(1)] except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the protection of health or morals, or for the protection of the rights and freedoms of others.’ It is clearly desirable for testing to take place:
– for public safety: to reduce the chance of the needlestick injury affecting Y and anyone with whom she may have contact, and to reduce the chance of X infecting others. Also, if it is known that such testing is lawful, healthcare professionals will be more confident in their treatment of other, potentially infected patients, and that is to the public good.
– for the economic well-being of the country: prevention of infection, and early treatment, may well reduce the burden on a publicly funded health care system.
– for the protection of health: of X, Y and others with whom they may come directly or indirectly into contact. See too all the ‘public safety’ points above.
– for the protection of the rights and freedoms of others: including Y and other people who may become infected. And I repeat again the ‘public safety’ points.
Barrister 1, acting for X
It’s ironic that m’learned friend should suggest that I haven’t read the Act. Section 1(f) (which m’learned friend says enables him to rely on the Regulations), refers to the use of ‘relevant material’. If he’d read the Act properly, he’d have noticed s. 53(1), which provides that ‘relevant material’ means ‘material, other than gametes, which consists of or includes human cells.’ HIV testing is done on serum. That doesn’t include cells (although I acknowledge that a few cells might incidentally be present in the sample being tested). So the Regulations can’t help him.
Barrister 2, acting for Y
Alice, I’m afraid, has started to wander in a forensic Wonderland. The sample used for testing is derived from a blood sample which is plainly ‘relevant material’. Parliament would be astonished and depressed to hear its Act being read as m’learned friend reads it. We need a purposive construction. The Regulations apply, and have the effect for which I contend.
But if the Act doesn’t apply to this material, then there can be no possibility of criminal liability under s. 5. M’learned friend can’t have his cake and eat it. If the Act doesn’t apply, then the only relevant analysis is that under Article 8, and there, I respectfully submit, m’learned friend is hopelessly outgunned.
Scene 3: The Royal Courts of Justice: Judgment
We haven’t written this bit. We thought we’d leave it to you.
You’re the judge. What do you do?
You’re a judge in a court of ethics. What do you do?
References
1. Re G (Children) [2012] EWCA Civ 1233
Acknowledgements
Many thanks to Professor John Saunders, Chairman of the Committee for Ethical Issues in Medicine of the Royal College of Physicians, for his thoughts on this issue, and for his very helpful briefing paper.
Whilst I found Barrister 2’s arguments compelling, I wondered whether I might feel differently if the facts were a little different. Say patient X remains the same, but Y is not a nurse, but his girlfriend who has discovered in the course of his illness that he may have been regularly cheating on her. She is very worried that she may have contracted an STI from him over the course of their relationship and asks for him to be tested.
I think the same arguments above would apply but I am not sure they have the same force . Perhaps the difference might be that nurse Y has particular risks in her job that she has a special right to be protected from, plus is part of the care team that has access to confidential information about him, whereas girlfriend Y, while we feel sorry for her is really in the same situation that anyone in a sexual relationship is, and doesn’t have a special right to be protected from these risks. Or maybe the difference is that at the time of possible infection he did have consent (or maybe my intuitions are wrong).
I may be a bit biased here, being in the health field myself, but I’ll try to keep that put aside.
While my first reaction is to want to protect the nurse, and it seems harmless to test a blood sample already taken, the fact is that you can’t force blood tests on people in other variations of this situation. Irene had a good idea in reframing the situation in terms of sexual exposure, where you can’t force the partner you were with to get tested if a condom breaks for example.
While testing the patient’s blood for disease may have been helpful had they found any, that isn’t the reason it was being performed. Intent is very important in both ethics and in many cases in law. So it was probably a legal and ethical imposition on part of patient X. However, the law does state that this can be waived to protect public safety, and it seems reasonable that in the interests of a nurse who treats members of the public if more information can be gathered than it would be ethically irresponsible to her and her patients not to get this information. This is however only true if evidence supports that starting treatment immediately would show benefits in these cases. Post exposure prophylaxis is intended to protect against the possibility of encountering HIV infection, so I doubt any new treatment would be begun if the patient were found positive. Essentially, if there is evidence to show that starting immediate treatment that would not otherwise be performed would be beneficial in the nurse’s case, I believe the benefits would ethically outweigh the imposition on the patient’s rights, especially given that the blood was already collected. However, if there is no treatment that would or should be begun, it was an unnecessary test.
Why doesn’t this apply in the case of sex then? While it is possible to argue that nurses do have a right to be protected from the risks of their job, why would this not extend to sex workers then? The question in my mind is not “why does this apply to nurses” but “why doesn’t this apply elsewhere?”. Unless there is more law that I’m just not aware of (incredibly likely), with the facts I have available I can say there is no benefit for HIV testing, as you would still perform PEP either way. While generally STIs are treatable, it’s possible that the law actually supports mandatory testing for other diseases if it would change management. However as a case of chlamydia is not seen as lifelong, patients’ rights to refuse testing are usually upheld.
I may be a bit biased here, being in the health field myself, but I’ll try to keep that put aside.
While my first reaction is to want to protect the nurse, and it seems harmless to test a blood sample already taken, the fact is that you can’t force blood tests on people in other variations of this situation. Irene had a good idea in reframing the situation in terms of sexual exposure, where you can’t force the partner you were with to get tested if a condom breaks for example.
While testing the patient’s blood for disease may have been helpful had they found any, that isn’t the reason it was being performed. Intent is very important in both ethics and in many cases in law. So it was probably a legal and ethical imposition on part of patient X. However, the law does state that this can be waived to protect public safety, and it seems reasonable that in the interests of a nurse who treats members of the public if more information can be gathered than it would be ethically irresponsible to her and her patients not to get this information. This is however only true if evidence supports that starting treatment immediately would show benefits in these cases. Post exposure prophylaxis is intended to protect against the possibility of encountering HIV infection, so I doubt any new treatment would be begun if the patient were found positive. Essentially, if there is evidence to show that starting immediate treatment that would not otherwise be performed would be beneficial in the nurse’s case, I believe the benefits would ethically outweigh the imposition on the patient’s rights, especially given that the blood was already collected. However, if there is no treatment that would or should be begun, it was an unnecessary test.
Why doesn’t this apply in the case of sex then? While it is possible to argue that nurses do have a right to be protected from the risks of their job, why would this not extend to sex workers then? The question in my mind is not “why does this apply to nurses” but “why doesn’t this apply elsewhere?”. Unless there is more law that I’m just not aware of (incredibly likely), with the facts I have available I can say there is no benefit for HIV testing, as you would still perform PEP either way. While generally STIs are treatable, it’s possible that the law actually supports mandatory testing for other diseases if it would change management.
In the United States, many jurisdictions have exceptions to the rule of general consent for HIV testing. The occupational exposure of prison guards and healthcare professionals is one such exception.
Illinois law carves out the exception this way: “Informed consent is not required for a health care provider or health facility to perform a test when a law enforcement officer is involved in the line of duty in a direct skin or mucous membrane contact with the blood or bodily fluids of an individual which is of a nature that may transmit HIV, as determined by a physician in his medical judgment.” (410 Illinois Compiled Statutes 305/7) Various jurisdictions do, in fact, have mechanisms to compel HIV testing under certain circumstances, although as Irene points out not if one is worried about a sexual encounter the fact. (Imagine one in which no condom is used.)
Since I don’t want the statute alone to do my arguing, let me also say that I think some general version of this statute above is right in regard to occupational exposures. In the case at hand, there is no one to offer consent to testing. All decisions about the care of an incapacitated individual must be made on his or her behalf. It is not clear to me that HIV or other testing for infectious disease represents a significant departure from what is going on generally. Now, the argument might be that this kind of testing is not to the patient’s benefit, but to the nurse’s. Well, maybe. But if the patient has an undiagnosed infection, learning about it sooner would be better than not learning about it at all.
I also think Steve’s comment is far too strong when he says there is no benefit to the conduct of an HIV test. For a nurse or prison guard to know — after an exposure — that the party in question is not HIV-infected can prove a strong psychological benefit.
In any case, Steve has argued that there is no benefit to HIV testing, since a course of post-exposure prophylaxis would have to go forward anyway.
If I were the judge, I would not be able to deny anyone the opportunity to find out if they had contracted a disease. It’s like saying “You may have the disease, you may not- but we’re not going to let you know for sure”. If the patient in the example were able to consent, I would find it incredibly difficult to understand why he would refuse.
However, and at this point I admit I have very little experience or knowledge in HIV testing, but can the nurse’s own blood not indicate if she is infected?
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