HIV: Protection of Medical Staff (Hansard, 9 October 1990)

§ The Parliamentary Under-Secretary of State, Department of Social Security (Lord Henley)
My Lords. the Government have no plans to authorise HIV tests on surgical patients without their consent.

Lord Campbell of Croy
My Lords, I thank my noble friend for his reply. Nonetheless, do the Government agree that where these risks arise doctors and nurses must be protected from what could be very bad effects?

§ Lord Henley
My Lords, we are aware of and understand the anxieties that exist among surgical and medical staff generally. My understanding is that the Royal College of Surgeons of England will be consulting on draft guidelines on testing for HIV infection on surgical patients. However, it will be for the General Medical Council—the body responsible for the regulation of the medical profession—to ensure that the guidelines are consonant with the ethical basis of the doctor/patient relationship.

§ Lord Mellish
My Lords, the Minister surely agrees that doctors are entitled to protection. How many people have been asked for their consent?

§ Lord Henley
My Lords, I am not sure that I follow the noble Lord.

§ Lord Mellish
My Lords, it is simple enough. How many patients have been asked?

§ Lord Henley
My Lords, tests should not be done without the consent of the patient. I have no figures as to how many patients have been asked for their consent. My understanding is also that the doctors' practise would not vary according to whether or not they knew that the patient was HIV infected.

§ Lord Ennals
My Lords, have the Government decided to accept the advice of Mr. Justice Ognall to settle the claims of haemophiliacs infected by AIDS virus? Does the noble Lord agree with the judge that the department has a moral responsibility to do so without any more ungracious haggling with these unfortunate people?

§ Lord Henley
My Lords, the noble Lord knows perfectly well that that is quite a different question. It is a matter before the courts. The noble Lord should know even better because I understand that he has put down a Question on that very subject for a week tomorrow.

§ Lord Ennals
My Lords, the Question deals with the risk of people being infected with blood. I should have thought that my question was absolutely relevant.

§ Lord Henley
My Lords, I am afraid that I disagree with the noble Lord.

Lord Campbell of Croy
My Lords, noble Lords may remember that I was one of the first people to put down a Question on haemophiliacs about a year and a half ago. I received a very good answer. The Question today is on an entirely different subject. Is my noble friend aware that patients or their families might raise an objection when asked for their consent before a test was made? In those circumstances, in my opinion the surgeons and nurses should come first.

§ Lord Henley
My Lords, I quite understand my noble friend's point. Perhaps I may help him a little further. My understanding is that the Royal College of Surgeons of Edinburgh has issued guidelines on the matter. It too feels that the patients should give consent before they are tested. However, its advice is that if the patient refuses, surgeons should act as though that patient were at high risk of HIV infection.

Lord Winstanley
My Lords, is the Minister aware that in normal circumstances when blood specimens are taken for routine testing with the patient's consent —as is normally the case before all operations, on antenatal and other occasions—the precise nature of the test to be carried out is not usually specified or discussed with the patient? Nor is the patient asked to consent to a variety of different tests. The patient consents to the blood being tested. In those circumstances, has not the time now come when it would be reasonable for all blood specimens to be tested for HIV antibodies?

§ Lord Henley
My Lords, no, because the patient must give his consent. If the patient does not know what the blood is being tested for he cannot give a valid consent. Consent depends on the knowledge that the patient has as to what tests are to be conducted. My understanding is that the doctor should explain what tests are to be conducted before that patient can give his consent.

§ Baroness Masham of Ilton
My Lords, would it not be possible automatically and routinely to test everyone who comes into hospital or who works in a hospital? Could not a patient be infected by a surgeon —who might be HIV infected, and who cut himself —whose blood gets into the patient's wound? All those people should be tested.

§ Lord Henley
My Lords, it is possible that the infection could be passed the other way. We are not aware of any cases except one in America concerning a dentist, about which the noble Baroness might know. However, even that case is not certain. I still believe that the question of consent must arise. The patient must be able to consent to the tests that are being conducted.

§ Lord Walton of Detchant
My Lords, is the Minister aware that two years ago, after the most earnest consideration of the problem and after having taken legal advice, the General Medical Council promulgated advice to the medical profession? It was to the effect that to carry out the test without the patient's explicit consent would not be an ethical procedure. Therefore, the council advised the profession that, while accepting all the anxieties expressed, it is necessary that the patient's consent is obtained in advance of the performance of such a test. Is the Minister further aware that the issue is still under consideration and that to the best of my knowledge no patient has yet refused to give permission for the test when specifically invited to do so?

§ Lord Henley
My Lords, I am grateful for the noble Lord's comments. I am aware of the work of the General Medical Council and of the letter that the noble Lord wrote to the profession about the matter. I should not wish to go further and speculate on the legal point that the noble Lord made. It is my understanding that, in order to give a proper and valid consent, the patient must know to what he is consenting.

§ Lord Ezra
My Lords, as someone who from time to time has been into hospital for surgical purposes and invariably has had blood samples taken in order to carry out certain tests, I cannot understand why the Minister did not accept the reasonable proposition put forward by my noble friend who said that among those tests there should now be an automatic test for HIV. That is now so important that I believe any normal patient would automatically agree. Why should a patient be asked specifically about this aspect of the test but not about all the others?

§ Lord Henley
My Lords, the noble Lord did not follow me. The patient should be asked about all aspects of the test. He must give his consent to the tests that are being conducted, otherwise there is no valid consent.

§ Lord Ezra
My Lords, I have never been asked about the blood tests. They just take the blood and test it.

§ Lord Henley
My Lords, I hope that in future the noble Lord will be asked.

Lord Winstanley
My Lords, is the Minister under the impression that when blood is taken from an accident patient or a driver in a motoring accident and tested for alcohol the patient is first asked for his consent? In fact he is not.

§ Lord Henley
My Lords, I am not aware of other cases. The noble Lord will accept that HIV is different. It usually leads to AIDS for which there is no cure and 146 therefore the whole question must be treated with greater sensitivity. As I have repeated more than once, the patient must consent to the tests being carried out.

§ Lord Ennals
My Lords, will the Minister accept the fact that there is a good deal of anxiety about the subject? In the light of that and recognising that the position of the General Medical Council was taken two years ago, since when the AIDS situation has greatly advanced, will he not ask his right honourable friend to reconsider the matter? Does the Minister accept, as was said by the noble Lord, Lord Ezra, that almost everyone admitted to hospital has a blood test and that the patient is not saying, "I am prepared to be tested for this but not for that"? Surely, whatever the result of a blood test the information is important and the department should reconsider the Answer that the Minister has given.

§ Lord Henley
My Lords, if the noble Lord had listened to some of my answers—

§ Lord Ennals
I did.

§ Lord Henley
Then he would have heard me say that it is a matter for the General Medical Council, which is the body responsible for issuing regulations on such matters to the medical profession. It is for the council to ensure that the guidelines are consistent with the ethical basis of the doctor/patient relationship. I also stress that the General Medical Council is a body statutorily set up and independent of government.

§ Lord McColl of Dulwich
My Lords, does the Minister agree that the real problem is that anyone who has such a test for AIDS finds it impossible to obtain an insurance policy? That is the crucial matter. Even if the test is negative, the fact that one has had it bars one from obtaining life assurance.

§ Lord Henley
My Lords, I thank my noble friend for those comments and for his explanation of the difficulties suffered by those who have the HIV infection or who are tested for it.