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Needlestick injuries and blood-borne viruses: decisions about testing adults who lack capacity

Health professionals who sustain a needlestick injury are at risk of contracting a serious blood-borne virus.

This new guidance provides advice on what to do in situations where the patient lacks the capacity to consent to testing for blood-borne viruses when a health professional has sustained needlestick injury.

Download the full guidance


In brief

  • Where the patient is expected to regain capacity before a decision on testing is needed, testing should not take place until consent has been obtained.
  • If the patient lacks capacity, doctors should determine whether the patient has a valid and applicable advance decision to refuse treatment (ADRT) or whether there is anyone with legal authority to make the decision (eg. in England and Wales, an attorney with the relevant decision-making authority or a court appointed deputy; in Scotland a welfare attorney, a sheriff appointed guardian or a person authorised under an intervention order).
  • Where a patient is not expected to regain capacity before a decision needs to be made, and there is no ADRT, attorney or appointed deputy or guardian etc, doctors are entitled to make a decision whether to test the patient without consent and must do so in accordance with the law in that jurisdiction.
  • The doctor must make that decision by assessing whether testing is in the best interests of the patient (in England, Wales and Northern Ireland) or will benefit the patient and is reasonable in the circumstances to safeguard or promote the physical or mental health of the patient (in Scotland). The doctor must follow a structured decision making process in making the decision, including seeking views from the patient and consulting a range of parties including relatives and those caring for the patient.
  • All relevant circumstances need to be considered by any doctor making that decision but where there is a potential clinical benefit to the patient, it is highly likely that ultimately the 'balance sheet' will indicate that testing should be undertaken and the potential clinical benefit is highly likely to be a 'factor of magnetic importance' that has a decisive influence on the outcome of the best interests assessment.
  • In England, Wales and Northern Ireland, where there is no potential clinical benefit, in the absence of evidence to the contrary it is legitimate for doctors to assume that the patient would want to 'do the right thing' and that this factor weighs in favour of testing.
  • In Scotland where there is no potential clinical benefit to the patient, it is not clear that testing would comply with the legislation and so we advise against testing.
  • Where a decision is taken that it is lawful and appropriate to test and a recent existing sample is available that is suitable for testing, this should be used in preference to taking a new sample.
  • Testing should be undertaken on a pseudonymised basis.
  • If the patient regains capacity, the patient should be informed that the test has been undertaken and given sufficient information to make an informed decision about whether to receive the results of the test.
  • If the patient opts not to know the result, no information about the test should be included in the medical record.


In detail

This guidance offers in depth ethical advice on this issue. The sections are listed below for your reference and the option to download the full guidance.

  • Overview
  • Why testing is important
  • Patients who are expected to regain capacity within a short space of time
  • Adults who lack capacity to consent - England and Wales
  • Adults who lack capacity to consent - Northern Ireland
  • Adults who lack capacity to consent - Scotland
  • Use of existing samples
  • Informing the patient
  • Recording information on the medical record
  • References