In a House of Lords debate on 14 March 2013, Lord Turnburg asked the Government “what is their policy on testing for HIV in patients lacking capacity to give consent following a needlestick injury to a healthcare worker”.

It’s an important question, since source testing can shape the early decisions to administer potent but toxic and unpleasant anti-HIV drugs to the injured person.

The reply, from Earl Howe (Parliamentary Under Secretary of State (Quality), Health; Conservative) was that “Where a person lacks capacity to consent their rights are protected by the Mental Capacity Act 2005, which determines that decisions on behalf of such a person have to be made in their best interests.

The department’s view is that both the taking of samples and the testing of samples previously obtained from a patient who lacks capacity to consent are therefore acts that may only be undertaken if they are in the best interests of the patient. This would include testing a patient for a serious communicable disease such as HIV following a needlestick injury to a healthcare worker.

The department’s view is that determining whether it is in the best interests of a patient who lacks capacity to take and test samples for the purpose of determining what treatment, if any, to offer a healthcare worker with a needlestick injury is a stringent test to pass. It involves assessment of the individual circumstances of the patient on a case-by-case basis.”

That’s a tough call, and one that might be better answered by the Government rather than the patient’s carers. A policy would help, rather than a fudge answer that expects the healthcare team to interpret complex legal matters – in haste – in the knowledge that it may come back and bite them in later High Court action. For the needlestick ‘victim’ that offers no solace.

Neither too does it offer anything to the injured waste handler working as a hospital ancillary and support worker, in the waste management sector or for a Local Authority. For them, a needlestick injury will always be the same result – do we assume the worst and embark on a long and difficult course of ant-HIV medications since the source patient on whom the needle was used, or the user who discarded the needle, will always be unknown.

The Government might have helped with a straightforward yes or no, but regrettably the law is almost never that simple. But for those in eh waste management sectors, the opportunity will not arise anyway. The source is unknown.

On every post-exposure treatment algorithm, this places the injured person in the highest risk category. Other factors are involved such as the likely age of the needle, was it a deep wound from a large hollow bore needle – but did you stop to find out? – but this involves always something of a terrible gamble.

A gamble with a life. Make sure that its not yours or one of your workforce.