Blood tests after needlestick
An update from a regular series written by Mr Robert Wheeler, director, department of clinical law, where he considers various aspects of clinical law that our nursing and medical staff rely on when caring for patients.
Surgery and medicine involve sharp pointed objects; ‘needlestick’ injuries remain ubiquitous. It is natural that surgeons and other clinical staff injured in this way seek reassurance that microbial contagion has not occurred, usually by seeking a sample from the patient involved. But the taking, storage and use of tissue, including blood, from the human body is dominated by the necessity for consent. The legal framework for that process is provided by the Human Tissue Act 2004 (HTA 2004). There are very few reported judgements in the English common law related to the control of human tissue, which may indicate the comprehensive nature of the statute. The leading case concerning needlestick is CM v EJ & HM Coroner for the Southern District of London [2013] EWHC 1680 (Fam), which records the moment a doctor, driving home in the early evening, encountered pedestrians gathered around a motionless woman. She lay on the pavement at the front of a tall building. The woman, EJ, was mortally injured; her bleeding profuse. CM stabilised her neck, cleared the airway, and maintained it until an ambulance arrived. Death was declared on the pavement, on 25th May 2013.
Later washing EJ’s blood from her hands, CM noticed abrasions; these were familiar to her, caused by alcoholic hand gel she used between patient examinations in clinic. Now anxious of the risk of infection from blood-borne disease, she sought advice and medication, commencing antiretrovirals. These drugs quickly caused her significant unpleasant side effects. CM wanted to establish whether she was a risk of serious disease, and the local Coroner, who had custody of EJ’s body, was contacted four days later for his cooperation in obtaining the relevant blood samples. The Coroner had no objection to the blood sample being taken and tested, ‘…provided you are satisfied that you have appropriate authorisation to do so’.
In the intervening days the police had established that EJ was a foreign national; and that her mother’s cousin lived in the UK. He reported that EJ’s parents lived abroad but were still oblivious to EJ’s death. He would attempt to get in touch with them but could not say how long that would take. In the meantime, the distant cousin provided permission for the blood to be taken and stored and used, if the court was willing to accept his consent. The Coroner had in the meantime instructed his pathologist to take samples whilst awaiting the decision of a court.
CM, concerned that the specimens would degrade and become unreliable, sought a declaration from the High Court that the Coroner and pathologist would be acting lawfully in testing her samples. Whilst the Coroner can use tissue for any purpose related to coronial functions, he had no power to benefit a person in CM’s position.
The judge considered the HTA 2004; and that EJ’s wishes were unknowable, in respect of the use of her tissue. Furthermore, there was no evidence that she had appointed another person as her ‘nominated representative’ to provide consent, as the Act provides. Although the HTA 2004 sets out a hierarchy of ‘qualifying persons’ who may provide consent, including a wide range of those with a family relationship, a maternal cousin did not qualify. However, the distant cousin did qualify, the court decided, if considered as a ‘friend of longstanding’.
On the sum of the evidence the judge ‘had little hesitation’ in declaring lawful the testing of EJ’s blood and tissues for blood borne disease; not least since CM’s dilemma only arose because of her ‘great humanity’ in attempting to save EJ’s life. By the time the judgement was handed down, the court had been told that the test results were negative. CM had been able to cease the antiretroviral treatment, but not before developing a rare but serious reaction.
Mr Robert Wheeler
Department of clinical law