The intensive care survey [1] and accompanying editorial [2] on serological testing of the patient lacking capacity following needlestick injury collectively set out the diversity of clinical approach, the ethical and legal dimensions and the initiatives of the Association of Anaesthetists of Great Britain & Ireland (AAGBI). The subsequent correspondence unequivocally sets out the impact on front-line staff of the impasse and the frustration at the apparent inertia of those bodies with the authority to resolve this vexed issue [3–6]. Without wishing to preempt the course of action chosen by the AAGBI Council in response to the Working Party’s recommendations, readers may wish to consider the approach we adopted in 2005, after collaborative liaison with genitourinary medicine. The harm to a needlestick victim caused by being unable to make an informed choice (without a test result) is absolute to that individual and should not be overridden by an arbitrary assessment of risk by the primary patient’s consultant, genitourinary physician, microbiologist or occupational health physician. The harm to society of healthcare practitioners’ not disclosing or acting upon a needlestick injury, if unable to make an informed choice, or limiting invasive interventions on patients with certain risk factors, is a tangible rather than theoretical adverse consequence of the current impasse. In seeking to avoid these harms, we have elected to test patients lacking capacity if the needlestick victim requests this. Given the well-documented hurdles to this course of action, we rely on the same expanded interpretation of best interests, using the substituted judgment and assent of the next-of-kin that was adopted to accommodate, among other interventions, serological testing of a patient as a prelude to non-heart beating organ donation [7]. This principle was endorsed by the Department of Health in 2009 within the publication ‘Legal issues relevant to non-heartbeating organ donation’ [8]. It is now established that the supportive opinion of the next-of-kin towards organ donation, even if the patient never formally registered, can justify interventions to maximise ultimate organ viability for the benefit of a third party, as long as direct patient harm is not occasioned. We ask the next-of-kin whether they believe the patient would have wished to help the needlestick victim make an informed choice on the basis of testing a blood sample already taken for other purposes, or an additional sample taken specifically for this purpose from an indwelling cannula, at a time that sampling would take place for other investigations. If the answer is in the affirmative, they are then asked whether they believe the patient would wish the investigation result to be recorded in the medical notes, and whether the patient would wish to be informed of the test, result and management options, should the result be positive. Given Department of Health guidance that post-exposure prophylaxis should be given ‘ideally within an hour’ [9], where it is anticipated that the next-of-kin would not predictably be available within a 4-h window, testing is carried out on the basis of ‘presumed consent’ with the next-of-kin informed as soon as possible. This is considered reasonable and defensible given the high balance of probability that patients and next-of-kin would support this course of action, as evidenced by a complete record of assent. The concept of ‘presumed consent’ has already been incorporated within statute under the Human Tissue Act, whereby interventions such as splanchnic perfusion are deemed lawful after a diagnosis of death, without either evidence of patient registration as an organ donor or the assent of the next-of-kin. Our strategy has been approved by our Trust multidisciplinary clinical ethics committee and offered as a potential solution to the current impasse within the recommendations of the AAGBI Working Party. The correspondence mentioned above highlights the need to have an explicit strategy in place for what is an inevitably recurrent scenario, pending a definitive resolution. If healthcare professionals are expected to take risks to benefit the population we serve, the population and our employers have a responsibility to help minimise those risks where feasible. There is an imperative for the various representative professional bodies to lobby the Department of Health to parallel the action taken in relation to organ donation. If the Department of Health can provide clarification on what is permissible to benefit a third party on adults lacking capacity, and expects the support of the critical care community for this field of organ donation, it should also extend the same principles to this particular problem. Dr Bell represented the Intensive Care Society on the AAGBI Needlestick Working Party. No external funding and no competing interests declared. Previously posted at the Anaesthesia Correspondence website: http://www.anaesthesiacorrespondence.com.
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May 19, 2020
D Gardiner + 3
Open Access