Latex gloves, reason, and balance

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.

Almost every surgeon has a view on which gloves she or he prefers. Challenged on their choice, surgeons, perforce, rely upon subjective justification. Some may reflect on custom and practice (“42 years is a long time”). Others undoubtedly believe, to their core, that their choice is founded on safety, due to optimal sensitivity and comfort. Some have no strong view. These three groups (perhaps more) comprise the national surgical community. They each constitute bodies of reasonable surgeons. Whilst their preferences remain subjective, the integral nature of the gloved hand in the performance of surgery brings, on the balance of probabilities, the surgeon’s choice of the nature of her glove squarely into ‘surgical practice’.

The State, largely through NHS Foundation Trusts, is alarmed by objective data concerning latex sensitivity and hypersensitivity. Such immunopathology can be cumulative, due to prolonged exposure in occupational groups who have either direct contact to latex, or who inhale latex particles, or other modes of accumulation. In patient groups such as those with spina bifida, following incessant catheterisations and other sensitisations, the consequences can be grave. In short, latex allergy is matter of legitimate concern in public health.

Scores of enquiries on this topic have been received in this department from anxious surgeons across the country, dreading an enforced change of their preferred glove to the perceived inferior, perhaps cheaper, option.

How can the apparently countervailing subjective surgical interest be balanced against the stark objective case against latex surgical gloves?

An historic case concerned a man, subjected to electroconvulsive treatment without muscle relaxant or manual constraint, suffering a fracture of his hip when he fell off the couch. The court provided a rule that a doctor is not negligent if acting in accordance with a practice accepted at the time as proper by a responsible body of medical opinion, even though other doctors adopt a different practice. Bolam v Friern Barnet HMC [1957] 1 WLR 582. This is the basis of the ‘standard of care’ in modern clinical practice, and explains why there is often more than one reasonable approach to pathology. A child with uncomplicated appendicitis may be reasonably treated in 2024 in England either with antibiotics alone; open appendicectomy, or laparoscopic appendicectomy.

Reflecting on the dilemma of optimising surgical care whilst responding to the threat that latex poses to public health; on the face of it, Bolam provides reassurance that surgeons who feel strongly about continuing to use latex gloves are acting reasonably. The perfomance of the gloved hand is inseparable from the standard of surgical care. But this reassurance fails to confront or diminish the force of the public health case for ‘latex free’ surgical facilities, since this remains a futile comparison of non-aligned interests; subjective belief versus objective data.

In Bolitho v City & Hackney HA [1997] 4 All ER 771, a doctor’s failure to maintain an infant’s airway caused a hypoxic brain injury. When determining whether the failure amounted to substandard care, the defendant hospital called a number of expert witnesses who asserted that it had been justifiable not to intubate the child in this clinical situation. This supportive ‘responsible body of medical opinion’ ostensibly created a Bolam defence. The court in Bolitho rejected this approach.

Rather than acquiescing to a ‘body of opinion’, the court found that it must satisfy itself that this opinion is founded on a logical basis, and survive forensic scrutiny. Defensible conclusions must be reached, having assessed the comparative risks and benefits pertaining to an action that has or should be taken. Separately, the ‘super specialist’ who may be one of a handful in the country may not require the responsible body of opinion to be large, endorsing the notion of standards defined by a subspeciality (De Freitas & O’Brien [1995] 6 Med LR 108).

Taking these cases together, ‘forensic scrutiny’ applied to a factual matrix, either relating to specific anatomical circumstances or a particular speciality will likely, on occasions, lead to the conclusion that latex gloves should be used.

This may be an example of a circumstance where ‘individualised’ medicine, with respect to both patient and surgeon, is particularly applicable. Surgeons, patients, and staff can all reasonably expect their interests to be considered. Public health can be protected and at the same time standards of surgical care maintained.

Mr Robert Wheeler
Department of clinical law