It was late on a Friday afternoon in November. I was a 21 year-old medical student diligently waiting for an opportunity to practice some medical procedures when a patient was admitted who was happy for a student to “have a go” at taking blood. Cue a bit of anxious excitement (clinical medicine was still new to me) before some inner steeling and a formal consent process. Then, in went the needle, out came the blood. Job done. However, just as I was allowing myself to feel self-satisfied, I noticed some blood on the inside of my latex glove.

The horror stories of healthcare professionals being infected with one of those vicious little blood borne viruses shot through my mind as effortlessly as the patient’s blood had recently spurted from vein to needle to bottle. As Kierkegaard once said, “there comes a moment in a person’s life when immediacy is ripe”; this was one of mine.

As it turned out — and by sheer dumb luck — the needle had penetrated my glove but not my skin and so I was “safe.” Typically, I did not inform anyone of the near-miss — the evidence suggests that many healthcare professionals and students do not report actual needle stick injuries never mind near-misses — and I went my merry (and very relieved) way.

Accidental blood exposure continues to be a pervasive problem in healthcare and needlestick injuries now account for around 17% of accidents in the NHS. Given the invasive nature of some forms of medical care, accidental exposure is never going to be eradicated. However, the risks can be reduced, and health organisations now have a legal obligation to put in place measures to minimize the risk to staff.

Playing ball

When an accidental exposure occurs, healthcare professionals are advised to seek immediate help from an occupational health physician or a doctor working in the Accident and Emergency Department. Part of the goal is to provide reassurance — the actual risk of transmission is very small — but the primary goal is to decide whether special precautions are needed. For example, if the accidental “donor” has HIV the recipient may want to take post exposure prophylaxis.

One way to evaluate the risk is to ask the “donor” whether they have a serious blood borne infectious disease. It also makes sense to test the donor’s blood — not least because about a quarter of patients with HIV are unaware that they are infected.

Most patients are happy to provide whatever information is needed and are also happy to give their permission for their blood to be tested. However, some refuse to play ball — perhaps because of fears about privacy, stigma and discrimination, and implications for jobs and health insurance — and others are unable to consent because they lack the capacity to do so or because they are dead. Whenever a patient refuses or is unable to consent to a blood test in such circumstances, a plethora of ethical, legal and professional conundrums arise.

Just say yes

Let us take the “alive and kicking” patient first. Ethically, one could argue such patients ought to consent to a blood test for a number of reasons. First, the healthcare professional was placed in a risky situation because they were trying to help the patient and so principles of reciprocity, justice and gratitude come into play. Second, the harm to the patient from testing is reasonably small (though not negligible) and the benefit to the healthcare professional (less stress and, potentially, less need to take toxic prophylactic drugs) is reasonably high and so the risk-benefit analysis is favorable. Third, the healthcare professionals’ right to life and health suggest patients have a duty to help if they can.

These kind of arguments will be persuasive to many — which probably explains why most people consent when asked. On the other hand, they do not provide sufficient reason to actually test blood in face of a refusal from a competent patient. This is because it is a fundamental principle of healthcare ethics that competent patients (with very few exceptions) have a right to refuse any examination, procedure, investigation or treatment.

This principle primarily rests on the claim that it is vitally important to protect the rights, autonomy and bodily integrity of patients — especially given the long history of misplaced paternalism in medicine. But it is also based on the need to ensure that patients trust their doctors. For these reasons the right of competent patients to refuse testing is enshrined both in law and in the professional guidance issued by the General Medical Council (GMC).

Eyes wide shut

But what if the patient is incompetent? If the patient is likely to (re)gain capacity very quickly the sensible option is to delay testing. But what if the patient is never likely to (re)gain capacity or is not likely to do so sufficiently quickly? In such circumstances, should healthcare professionals be able to test blood without consent?

It is possible to argue that the very same ethical arguments that provide reasons for thinking patients should consent still apply, and, furthermore, that it is reasonable to test blood on the basis that most patients who have capacity do consent to have their blood taken. But this is moral quicksand. Unless the patient has previously stated their wishes it is impossible to know what they would want to happen now that they no longer have capacity. Simply assuming that the patient would have been a “good egg” is naïve. Testing without consent is also problematic because patients who lack capacity are vulnerable and are especially prone to being used as mere means to other people’s ends.

Interestingly, the GMC previously supported the testing of blood without consent in exceptional situations. But following the introduction of the Human Tissue Act 2004 and the Mental Capacity Act 2005 the GMC changed its guidance to make it abundantly clear that, in their eyes, “current law does not permit the testing the infection status of an incapacitated patient solely for the benefit of a healthcare worker”. It is also worth noting that when this question was recently raised in parliament the response from the government was that testing in such a situation could only be done if it was in the patient’s best interests.

Sickness unto death

So what if the patient has died in the intervening time since the accidental exposure occurred? This may seems a little fanciful, but such injuries often happen during resuscitation or in intensive care or during emergency surgery — that is, in situations when patients can die quite suddenly.

Where the patient has died, the ethical analysis certainly shifts because there is widespread consensus that the dead have fewer interests than the living. Indeed, some argue that the dead have no interests at all. But we the living do have some interest in what happens to our bodies after we die (especially if we hold certain religious beliefs). And most of us care about what happens to the bodies of our loved ones, as the response to the Alder Hay organ-retention “scandal” clearly demonstrates. Still, whether these interests outweigh the interests of living healthcare professionals who might benefit significantly if the tissue samples of the dead were tested, seems very debatable.

The GMC used to state that healthcare professionals could test a dead patient’s blood if there was good reason to think that they had a serious infectious disease and if a healthcare worker had been exposed, but this guidance has now been withdrawn. This is because the law now states that the testing of tissue samples from the deceased for the benefit of healthcare professionals is only acceptable if the patient consented before they died or if the patient had not declared a preference either way and a relative or friend is happy for this to occur.

When I experienced my needlestick near-miss I happened to be reading Kierkegaard’s Sickness unto Death. This did not help my morbid state of mind during those moments of barely controlled panic and it may be argued that my response was melodramatic. But it is important to realize that healthcare professionals who are accidentally exposed to patient’s bodily fluids often suffer significant amounts of anxiety while they await the “outcome” of the incident. They also belong to the same moral community as the patients that they are trying to help.

This does not mean living patients should be tested without their consent, but it does mean that there ought to be a presumption in favor of testing where the will of a recently deceased patient is unknown.

Carwyn Hooper is a lecturer in medical ethics and law, University of London. This article was originally published in The Conversation.