Laurence Vick
Posted on 17 Sep 2013

Rethinking the policy on HIV-infected healthcare workers

Employment analysis: How can employers navigate stigma and properly manage HIV-infected healthcare workers? Laurence Vick, head of Michelmores' clinical negligence team, answers questions for LexisNexis.

Related Story: 'A Positive Response for HIV infected healthcare workers'

Consultation: The management of HIV-infected healthcare workers--Government response

The Chief Medical Officer Professor Dame Sally Davies and government ministers have agreed to lift the current restrictions on HIV positive healthcare workers working on exposure prone procedures (EPPs), provided they are on effective combination antiretroviral therapy (cART), with a very low or undetectable viral load, and are regularly monitored by both their treating and occupational health physicians.

The Department of Health (DoH) has now requested Public Health England (PHE) to produce guidance for the NHS to implement the change in policy, and to establish a centralised database to monitor healthcare workers with HIV.

What prompted the consultation?

The UK maintains some of the strictest rules in the world in relation to HIV infected workers, with many of the laws having been formulated in the 1980s. Legislation was drafted on the basis of the prevailing scientific and sociological understanding of AIDS at that time. Campaigners have argued that this stance reinforces the stigma surrounding the disease, discourages diagnosis and, as a result, puts patients at risk.

There have been huge advances in prevention and treatment of HIV. However, while there have only been four reported incidents worldwide of healthcare worker to patient infection -and none in the UK--there will never be a zero risk of infection to patients. Risk is inherent in a great deal of medical treatment, but in this case the government felt that the actual risks were not reflected in the law.

The increasing sophistication of cART means the infectiveness of a person can be suppressed to very low levels, even between sexual partners or pregnant mothers and their unborn babies. The new rules are intended to reflect the minimal risks infected staff now pose to patients, according to the government's assessment of statistical risk assessments and current epidemiological research.

What are the government's proposals?

The ban on HIV home-testing kits will be removed, with the aim of encouraging early diagnosis of the disease. An HIV-positive healthcare worker must meet strict regulatory criteria in order to be able to carry out EPPs (for instance, be on effective cART drug treatment, such that their viral load is reduced to undetectable levels). There will also be strict requirements for regular check-ups. EPPs are defined by the DoH as procedures 'where there is a risk that injury to the worker may result in exposure of the patient's open tissues to the blood of the worker'. Procedures include:

  • Surgery
  • Obstetrics and gynaecology
  • Some elements of midwifery, and
  • Most dental procedures

The EPP rules barring healthcare workers with other blood-borne viruses, such as hepatitis A and C, remain in force.

What are your predictions for the future?

We hope that the zero-infection rate from healthcare workers to patients continues after the rules  change, and that the regulatory requirements are embraced by both infected staff and management. However, we would suggest that, in terms of protecting patients from infection with blood-borne disease, it is contaminated blood products that are an issue demanding greater legislative attention, as the harm from this in the UK has been extensive and well-documented.

We recently represented over 100 haemophiliacs who had been treated in the 1980s and 90s with contaminated NHS blood supplies, purchased from US pharmaceutical companies, from which they consequently contracted HIV and hepatitis C. Because of the continuing fear of contamination with variant CJD, the NHS continues to source its blood from the US, and, given the history, the recent sale of the UK's blood plasma supplier to a US private equity firm does not feel like a positive step.

Emphasising this point isn't to detract at all from the victory that the change in the law represents for HIV sufferers--it is only a reminder that more needs to be done in a very systemic way.

What should lawyers advising in this area keep in mind?

Ideally, if the findings of the consultation hold true, there should be no new clinical negligence claims relating to HIV transmission to patients, and there should be very little need for recourse to law for new cases. Lawyers should ensure that healthcare clients are proactive in managing the monitoring process. Comprehensive records should be kept to demonstrate due diligence. Maintaining a system where infected staff feel confident in submitting to monitoring is another, more subtle requirement, but one which could really make the difference as attitudes towards HIV gradually develop.

This article was originally published on the Current Awareness service on LexisLibrary on 15 August 2013.

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