S it lawful and ethical to test, without consent, the blood of an unconscious patient for HIV infection if a healthcare worker (HCW) receives a needlestick injury and needs to decide quickly whether or not to start post-exposure prophylaxis (this issue pp.37-39~1)? The Medical Protection Society advises~2: 'Where a patient lacks capacity to consent, it is not possible to obtain consent to test from a third party. Consent can be deemed to exist only in the situation where testing is in the patient's best interests. It is not sufficient for testing to be in the best interests of a third party (eg, a healthcare worker after a needlestick injury).' British Medical Association (BMA) guidance asserts that, when determining the patient's 'best interest', doctors should adopt a 'balance sheet approach'; benefits on one side and detriments on the other3. A clinical benefit will have a 'decisive influence' on the decision to test but the absence of clinical benefit does not rule it out. Accordingly, argues the BMA, a doctor (in England, Wales or Northern Ireland) can, in the absence of contrary evidence, assume that the patient would want to 'do the right thing'; that is, consent to a blood test to safeguard the injured worker~3. The BMA says the Code of Practice to the Mental Capacity Act 2005 (MCA)~4, and a decision of the Supreme Court~5, support the notion that best interests include consideration of what the patient would have wanted, including 'altruistic sentiments and concern for others'~5 - though neither source addresses needlestick injuries.The BMA also points to debates on the Mental Capacity Bill as it passed through Parliament. Government ministers, it says, argued that an 'explicit provision' enabling testing following needlestick injuries was unnecessary as 'testing could already go ahead in these circumstances'~3.
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