Legal and Ethical Issues in HIV Testing, Part 2 Dominick I. Flarey, PhD, MBA, RN, C, CNAA In part 1 of this two-part series, legal and ethical issues in HIV testing were examined, such as the ELISA test, informed consent, confidentiality, and mandatory vs. voluntary testing. In this article, the author presents the most important legal and ethical concerns related to legislation for testing, testing in the workplace, Centers for Disease Control guidelines and recommendations, ethical analysis, and implications for nurse executives. "The aids hysteria is far more contagious than the disease itself."I(pl86) These fears are enhanced because the epidemic is invisible. The majority of HIV-infected individuals display no symptoms until later stages of the disease.2 In response, society turns to the legislative system and public health policy sectors for action to prevent or decrease the spread of disease. We are now witnessing enactment of federal and state statutes to meet society's expectations. To date, hundreds of bills have been proposed in state legislatures regarding HIV.3 "In some states, educational programs in the cautious handling of blood and other bodily fluids are required for all healthcare professionals. In Florida, for instance, physicians, dentists, emergency medical technicians, psychologists, and nurses must take training in prevention of HIV transmission, and failure to pursue the required training may constitute grounds for disciplinary action, including revoking of a professional license."3(p305) Many states have introduced or have legislation to protect an individual's confidentiality regarding HIV test results.4 A new Federal law requires states to adopt specific policies based on guidelines that are "equivalent" to policy developed by the Centers for Disease Control (CDC) .5'6 In response, we are witnessing the emergence of Dominick L. Flarey, PhD, MBA, RN, C, CNAA, Associate Administrator/Patient Care and Chief Nurse Executive, Youngstown Osteopathic Hospital, Ohio.
JONA • Vol. 22, No. 11 • November 1992
many laws, some extremely variant from the CDC's intent. These occurrences will likely require clarification from the CDC in the near future.6
Testing in the Workplace Healthcare agencies face serious concerns related to HIV testing. These include: the need for testing healthcare workers; liability and ethical issues related to iatrogenic transmission of infection from employees to patients; acquired infections from patients to employees; precautions with invasive and exposure-prone procedures; pre-employment HIV screening; strict policies for universal precautions; and the high costs of care and liability associated with HIV infection in the workplace. Mandatory testing of all healthcare workers, unless prohibited by law,7 is not a viable solution to "protect" employees. Studies consistently show that there is a relatively low risk of transmission of HIV infection in the healthcare setting.4 Unlike many other infectious diseases, the transmission of HIV, generally occurs through intimate sexual contact or through blood contact.8 The most likely risk of contracting HIV in the clinical setting is through an accidental needle stick. Despite this fact, recapping needles continues at a rate of 94%.9 Even so, the chance of actually contracting HIV infection from a needle stick is low. "In total, the relative absence of HIV transmission in hospitals, even to those who have received accidental needle sticks from infected patients, is striking and in direct contrast to the high infection rate seen with hepatitis B virus after such accidents."10(P1358) An interesting correlation has been made between the transmission of HIV in the healthcare setting. ". . . If there were a significantly increased risk of AIDS to healthcare workers because of occupational exposure, one might expect a higher percentage of persons with AIDS to be
27
employed in healthcare when compared with other professions. Statistics based on the first 50,000 cases for which data have been reported to the CDC indicate that only about 6% of those infected had been or were employed in the healthcare field before at the time of diagnosis. It is possible that all or some of these people may not have been infected in the workplace." (Schimer M, Legal Issues in HIV Testing, Unpublished manuscript, Ohio Universities College of Medicine, 1991, p. 8).
Mandatory screening in the workplace is not ethical because its usefulness in protecting patients is not supported either epidemiologically or clinically?
The point of debate is the relative risk of HIV transmission with invasive procedures or exposure-prone procedures. It is asserted that exposure-prone procedures provide a risk of percutaneous injury to a healthcare worker. Further, if such injury occurs, blood from the healthcare worker could contact a patient's organs, tissues, or mucous membranes.7 Although most workers accept the plausibility of this theory, debate ensues over what constitutes an exposure-prone procedure. A recently published definition includes; "digital palpation of a needle tip in a body cavity or the simultaneous presence of the healthcare worker's finger and a sharp object in a poorly visualized or highly confined anatomical site." 7(pll01) Although this definition may be narrow, it provides a basis for determining what constitutes such procedures. Examples of nursing practices that may be exposure-prone are nurses who assist with operative procedures or introduce materials or equipment into the body. Although such examples may not always meet the definition above, they justify further analysis and categoritization. Because of the higher risk of transmitting HIV-infection while performing an invasive or exposure-prone procedure, the CDC recommends that practitioners be aware of their HIV status.7 The American Medical Association recommends that HIV-positive healthcare workers refrain from performing invasive procedures or reveal their se28
ropositive status to patients and obtain informed consent before carrying out the procedure (Schimer M, Legal Issues in HIV Testing, Unpublished manuscript, Northeastern Ohio Universities College of Medicine, 1991). Fraught with debate, in December 1991, the CDC dropped its plan to develop a list of exposure-prone procedures that HIV-positive healthcare workers should not perform.7 It maybe necessary for professional organizations or healthcare agencies to individually develop a list of procedures that, if performed by infected healthcare workers, could bring a risk to patients. The debate on whether healthcare workers should be tested continues. The CDC, along with many professional associations, opposes mandatory testing.6 The opposition has a strong legal and ethical basis. Since the introduction of universal precautions, the incidence of hepatitis B transmission has decreased dramatically. Hepatitis B is 100 times more infectious than HIV, and 10 times more prevalent in healthcare workers.11 We have not instituted mandatory testing of healthcare workers for hepatitis B. Why then should there be mandatory testing for HIV?"8 Besides the legal issue, ethical issues have also surfaced. Mandatory screening in the workplace is not ethical because its usefulness in protecting patients is not supported either epidemiologically or clinically.8 As well, mandatory testing could weaken adherence to infection control guidelines.12 The costs associated with a mandatory testing program need to be evaluated. There are approximately 6.6 million healthcare workers in the United States. The AIDS Action Council estimates that 1.1 million would have close enough contact with patients to warrant regular testing. If those workers were tested 4 times/year, the cost would be approximately $220 million. This cost analysis includes pre- and posttest counseling, administrative costs for record keeping, workers compensation claims, and the testing of patients who had contact with infected employees (Schimer M, Legal Issues in HIV Testing, Unpublished manuscript, Northeastern Ohio Universities College of Medicine, 1991). At this time, it seems best for nurse executives and healthcare agencies to follow the CDC's recommendations. The CDC has advised that healthcare workers who adhere to universal precautions and do not perform invasive procedures, even if they are HIV-positive, do not pose a risk of transJONA • Vol. 22, No. 11 • November 1992
JONA • Vol. 22, No. 11 • November 1992
many laws, some extremely variant from the CDC's intent. These occurrences will likely require clarification from the CDC in the near future.6
Testing in the Workplace Healthcare agencies face serious concerns related to HIV testing. These include: the need for testing healthcare workers; liability and ethical issues related to iatrogenic transmission of infection from employees to patients; acquired infections from patients to employees; precautions with invasive and exposure-prone procedures; pre-employment HIV screening; strict policies for universal precautions; and the high costs of care and liability associated with HIV infection in the workplace. Mandatory testing of all healthcare workers, unless prohibited by law,7 is not a viable solution to "protect" employees. Studies consistently show that there is a relatively low risk of transmission of HIV infection in the healthcare setting.4 Unlike many other infectious diseases, the transmission of HIV, generally occurs through intimate sexual contact or through blood contact.8 The most likely risk of contracting HIV in the clinical setting is through an accidental needle stick. Despite this fact, recapping needles continues at a rate of 94%.9 Even so, the chance of actually contracting HIV infection from a needle stick is low. "In total, the relative absence of HIV transmission in hospitals, even to those who have received accidental needle sticks from infected patients, is striking and in direct contrast to the high infection rate seen with hepatitis B virus after such accidents."10(P1358) An interesting correlation has been made between the transmission of HIV in the healthcare setting. ". . . If there were a significantly increased risk of AIDS to healthcare workers because of occupational exposure, one might expect a higher percentage of persons with AIDS to be
27
employed in healthcare when compared with other professions. Statistics based on the first 50,000 cases for which data have been reported to the CDC indicate that only about 6% of those infected had been or were employed in the healthcare field before at the time of diagnosis. It is possible that all or some of these people may not have been infected in the workplace." (Schimer M, Legal Issues in HIV Testing, Unpublished manuscript, Ohio Universities College of Medicine, 1991, p. 8).
Mandatory screening in the workplace is not ethical because its usefulness in protecting patients is not supported either epidemiologically or clinically?
The point of debate is the relative risk of HIV transmission with invasive procedures or exposure-prone procedures. It is asserted that exposure-prone procedures provide a risk of percutaneous injury to a healthcare worker. Further, if such injury occurs, blood from the healthcare worker could contact a patient's organs, tissues, or mucous membranes.7 Although most workers accept the plausibility of this theory, debate ensues over what constitutes an exposure-prone procedure. A recently published definition includes; "digital palpation of a needle tip in a body cavity or the simultaneous presence of the healthcare worker's finger and a sharp object in a poorly visualized or highly confined anatomical site." 7(pll01) Although this definition may be narrow, it provides a basis for determining what constitutes such procedures. Examples of nursing practices that may be exposure-prone are nurses who assist with operative procedures or introduce materials or equipment into the body. Although such examples may not always meet the definition above, they justify further analysis and categoritization. Because of the higher risk of transmitting HIV-infection while performing an invasive or exposure-prone procedure, the CDC recommends that practitioners be aware of their HIV status.7 The American Medical Association recommends that HIV-positive healthcare workers refrain from performing invasive procedures or reveal their se28
ropositive status to patients and obtain informed consent before carrying out the procedure (Schimer M, Legal Issues in HIV Testing, Unpublished manuscript, Northeastern Ohio Universities College of Medicine, 1991). Fraught with debate, in December 1991, the CDC dropped its plan to develop a list of exposure-prone procedures that HIV-positive healthcare workers should not perform.7 It maybe necessary for professional organizations or healthcare agencies to individually develop a list of procedures that, if performed by infected healthcare workers, could bring a risk to patients. The debate on whether healthcare workers should be tested continues. The CDC, along with many professional associations, opposes mandatory testing.6 The opposition has a strong legal and ethical basis. Since the introduction of universal precautions, the incidence of hepatitis B transmission has decreased dramatically. Hepatitis B is 100 times more infectious than HIV, and 10 times more prevalent in healthcare workers.11 We have not instituted mandatory testing of healthcare workers for hepatitis B. Why then should there be mandatory testing for HIV?"8 Besides the legal issue, ethical issues have also surfaced. Mandatory screening in the workplace is not ethical because its usefulness in protecting patients is not supported either epidemiologically or clinically.8 As well, mandatory testing could weaken adherence to infection control guidelines.12 The costs associated with a mandatory testing program need to be evaluated. There are approximately 6.6 million healthcare workers in the United States. The AIDS Action Council estimates that 1.1 million would have close enough contact with patients to warrant regular testing. If those workers were tested 4 times/year, the cost would be approximately $220 million. This cost analysis includes pre- and posttest counseling, administrative costs for record keeping, workers compensation claims, and the testing of patients who had contact with infected employees (Schimer M, Legal Issues in HIV Testing, Unpublished manuscript, Northeastern Ohio Universities College of Medicine, 1991). At this time, it seems best for nurse executives and healthcare agencies to follow the CDC's recommendations. The CDC has advised that healthcare workers who adhere to universal precautions and do not perform invasive procedures, even if they are HIV-positive, do not pose a risk of transJONA • Vol. 22, No. 11 • November 1992
