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Readers vs. Experts on the Question of Informed Consent and Possible Occupational Exposure to HIV

Letter to Readers |
August 10, 2009

Readers vs. Experts on the Question of Informed Consent and Possible Occupational Exposure to HIV

  1. Paul E. Sax, MD

Experts say observe the law; readers say test the patient.

  1. Paul E. Sax, MD

A couple of weeks ago, we posted an Antiretroviral Rounds case about a physician who sustains a needlestick while placing a central line in a patient with waxing and waning mental status and a positive toxicology screen for cocaine and opiates. State law requires written informed consent to perform an HIV test, but the patient refuses to sign, becomes obtunded, and has to be intubated. His only visitor is his girlfriend, and no family member or healthcare proxy is available.

Before providing our readers with the expert opinions that we solicited, we wanted to know what you would do. We asked several questions, but the key one was, Would you test the patient?

To date, we've received 35 “Reader Remarks”— one of the strongest responses that Journal Watch has received since we launched this feature 6 months ago.

Overwhelmingly, respondents favored testing the patient, regardless of what the law states. For example, SSZ noted, “Doctors have rights, too. The interventionist has an obligation to save this patient AND an obligation to his own health as well. Testing should be done while the patient is confused and the interventionist should receive appropriate treatment. The law is not correct for every situation, and . . . I hope sanity would prevail in this case.” And, according to MB, “Our beloved patient is having all kinds of things done without real ‘informed consent' to possibly save his life. We can add HIV testing to possibly save the doctor's life or make it easier. Then find a jury that would convict the doctor or the hospital.”

At least one respondent differed substantially from this view, with VS writing, “Follow post-exposure guidelines for unknown source. Do not test the patient against his will.”

Now we publish the responses of our three experts: an expert on postexposure prophylaxis; an expert on the intersection of HIV, law, and policy; and a bioethicist and practicing physician. And guess what? Although they answer the questions in subtly different ways, they all come out clearly against testing the patient.

For what it's worth, I'm with the readers on this one. To me it seems as if there are two undesirable actions that are in conflict:

  • Test the patient against his consent. No, it's never desirable to do anything against a patient's will, and literally illegal, but at least it can be justified as providing important information for the patient's own health.

  • Provide “empirical” postexposure prophylaxis (PEP) to the intensivist. This forces the clinician to take what is most likely unnecessary (and often poorly tolerated) treatment for 4 weeks, then to go through the 6 months of anxiety waiting to hear whether he is one of the unlucky few who acquires HIV on the job.

Sorry, in my book there's no contest: The second of these choices (no test, empirical PEP) is far worse than the first, and I'm pretty sure OSHA would agree with me. Workers have rights, too. (This is not to say that our experts are wrong — just that I disagree with them!)

Read it all here. It's not too late to weigh in. Just follow the link and scroll to the bottom of the page to leave a remark.

Reader Comments (7)

Barbara L. Keller

This is a classic example of why the law on HIV is terribly out of date. If one examines every other communicable disease and STI, HIV is clearly treated with kid gloves. At the outset, this was fairly justified because of 2 things: HIV was nearly universally fatal and there was extreme stigma. Neither is the case any longer. It is ridiculous at this juncture to continue to handle HIV as a class apart - we do not need informed consent for a urinalysis, a CBC, an RPR, or GC and chlamydia cultures. We do not need it for HIV, ESPECIALLY under the circumstances presented.

Competing interests: None declared

Dr Suresh Amin

I am disturbed to note that none of the readers mentioned to repeal the law. If not totally to repeal the law at least modify substantially, with riders.

Should we test or no test for HIV when patient is incapable of giving consent. Why should family member be asked ?

Is having HIV status known to treating doctor such a stigma ?.

Medical people are not moral policemen. In any case in current social scenerio havinh HIV is not a stigma.

That brings a second issue - should HIV person inform or not his / her own status to new sex partner. It should be the law. Hiding should be punishable. - criminal.

Competing interests: None declared

Norman Bauman

The interventionist should get his own lawyer to protect his interests.

Hospital lawyers protect the hospital's interest, which is not identical. Ethicists can also be advocates for a particular interest or principle, which may conflict with the interventionist's interest.

The interventionist's lawyer could raise the arguments for testing given above.

The experts made assumptions, which a lawyer could challenge. HIV testing might help the patient's treatment. The treating physicians might use substituted judgment. PEP might be more harmful than your expert assumed. There might be a way out. You don't know until you talk to your own advocate.

Competing interests: None declared

Linda L. Pifer

The benefit of testing in this case clearly outweighs the risk of compromising the patient's privacy. Keep in mind that the physician's health and life are at risk. Not testing would place a higher priority on confidentiality than life itself. Why is this even a matter of controversy? It's time to stop the ethical parsing and get real. Medicine exists for the benefit of humanity, not as a philosophical hackey sack to be kicked around as an entertaining or titillating (to some) "what if" worst case scenario. The greater good is obviously served by testing the patient.

Competing interests: None declared

Arthur L. Yeager, DMD,MMH

Since the potential for harm to the needle stuck physician excedes by far the harm to the perhaps HIV infected patient and not unlike life saving blood transfusion for a child whose Jehovah's Witness parents have refused, go before a judge and obtain an order to test.

The ethical criterion of meeting the greater harm and the legal constraint of informed consent are thereby both satisfied.

Competing interests: None declared

Anup Lahiry

I agree with most of the readers comment. Doctors do not have the luxury to deny care to a critically ill patient. If patients have right to privacy then doctors also have the right to protect their health and life, just like anyone else. I agree that the law to protect this secret is against any common sense and needs to change. This law was passed when we did not know much about HIV and there was great stigma about it. Doctors are not going to advertise this fact. This info. can even save the patients life itself. This law only states the insecurity of the time and the law makers. We don't get consent for TB and other STIs. The info. is to be used for saving life and protecting health. The doctor with unknown HIV status may even infect others.

Competing interests: None declared

Marie T InfectionControl

In my >20 yrs in infection control and employee health work, the only person who refused testing was the lawyer of a demented patient without family. My opinion - it's all in the delivery, ask well and you will have informed consent. BTW- same is true for pts exposed to healthcare worker's blood, all be prepared!

Competing interests: None declared

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