Diana L Barrigar,1 David C Flagel,2 and Ross EG Upshur3
1PGY-1 McGill University, Faculty of Medicine, Montreal, Quebec,
2Department of Humanities and Languages, Hazen Hall, Room 104,
University of New Brunswick, Saint John, New Brunswick, E2L 4L5, Canada
3Primary Care Research Unit, Sunnybrook and Women's College Health
Sciences Centre, Department of Family and Community Medicine and Public
Health Sciences and Joint Centre for Bioethics, University of Toronto,
2075 Bay view Avenue – A 100 Toronto, Ontario, M4N 3M5, Canada
Diana L Barrigar: email@example.com ; David C Flagel:
firstname.lastname@example.org ; Ross EG Upshur: email@example.com
Received September 26, 2001; Accepted October 25, 2001.
The potential for transmission of blood-borne pathogens such as
hepatitis B virus from infected healthcare workers to patients is an
important and difficult issue facing healthcare policymakers
internationally. Law and policy on the subject is still in its infancy,
and subject to a great degree of uncertainty and controversy.
Policymakers have made few recommendations regarding the specifics of
practice restriction for health care workers who are hepatitis B
seropositive. Generally, they have deferred this work to vaguely defined
"expert panels" which will have the power to dictate the conditions
under which infected health care workers may continue to practice.
In this paper we use recent Canadian policy statements as a critical
departure point to propose more specific recommendations regarding
disclosure of transmission risks in a way that minimizes practice
restriction of hepatitis B seropositive health care workers without
compromising patient safety. The range of arguments proposed in the
literature are critically examined from the perspective of ethical
A process for considering the ethical implications of the disclosure
of the sero-status of health care workers is advanced that considers the
varied perspectives of different stakeholders.
The ethical issues surrounding health care workers infected with
blood borne viruses and practice restrictions has drawn increasing
attention. [1-15]. Many of the analyses have dealt exclusively or at
least significantly with the issue of disclosure of seropositivity as a
means for infected HCWs to continue to practice [3-9]. However, most
have focussed on HIV and have not adequately addressed the unique
features of HBV, particularly its preventability and higher
transmissibility, which distinguish it from HIV.
Of the few papers which have focused on HBV-infected HCWs, none have
adequately addressed the issue of disclosure of seropositivity as a
means for infected HCWs to continue to practise. Ristinen and Mamtani
advocate disclosure of seropositivity as a means of allowing patients to
participate in care, however, their discussion is quite superficial and
does not address all of the primary stakeholders in the issue .
Blatchford et al discuss an actual case of an HBV-infected dentist, and
the results of a survey of exposed patients. They also advocate
disclosure of seropositivity, but argue this primarily from the
patient's right to know perspective and do not address the issues from
the HCW's perspective .
Thus, what appears to be missing from the literature is a
comprehensive examination of disclosure of HCW seropositivity and its
role in determining appropriate practice restrictions for HCWs infected
with hepatitis B virus. In this paper we review the arguments from the
literature, including the interests of the at-risk patient, the infected
HCW, and the health care system. We attempt to provide a comprehensive
and practical approach to including disclosure of seropositivity in a
system of practice restriction for HBV-infected HCWs.
Epidemiology of HBV transmission
HBV is transmitted by percutaneous or permucosal exposure to
infectious body fluids, by sexual contact with an infected person, and
perinatally from an infected mother to her infant . It differs from
other transmissible pathogens in several important ways. First, it is
more highly transmissible than HIV or hepatitis C virus (HCV). In fact,
HBV may be transmitted from HCWs to the patient despite full compliance
with universal precautions and correct infection control procedures
. An estimated 240 to 2,400 transmissions occur per million
procedures by an HBV-infected HCW compared to 2.4 to 24 per million
transmission rate by an HIV-infected HCW . Chronic carrier status is
identified serologically by a positive hepatitis B "surface" antigen
(HBsAg) titre. Although it was once thought that only individuals
testing positive for hepatitis B "envelope" antigen (HBeAg) in addition
to HBsAg were at risk of transmitting the infection, it is now known
that surgeons who are carriers of HBV without detectable levels of serum
HBeAg can transmit HBV to patients during procedures .
Seroconversion rates after exposure to the virus in a non-immunized
individual range from 19–30% if the source person is HBeAg positive and
5% if the source person is HBeAg negative .
In terms of prevalence of HBV infection among HCWs, data from the
most recent U.S. National Health and Nutrition Examination (NHANES) did
not show an increased prevalence of chronic HBV infection among adults
with a medical occupation as compared to the rest of the sample. However
the NHANES study did not separate out specialities within medicine, e.g.
surgeons, where there may be a higher prevalence of HBV infection. This
study estimated a prevalence of HBV infection in the U.S. population of
5.5%, with 0.33% being chronically infected, in the period between 1976
and 1980 compared to 4.9%, with 0.42% being chronically infected,
between 1988 and 1994.
Besides its high transmissibility relative to HCV and HIV, HBV also
differs in its preventability by immunization. In Canada, this consists
of 3 intramuscular doses of a recombinant vaccine, administered in a
series of 3 injections over 6 months (at 0, 1 and 6 months), with a
95–99% protective immune response observed among pediatric and young
adult populations . Immune response to the vaccine series is lower
in adults over age 40 and immunocompromised individuals .
Fractionated anti-HBs immunoglobulin (HBIG) is often used in combination
with the vaccine series for post-exposure prophylaxis, however, there is
no consensus as to how much additional protection, if any, it offers
It is also important to know that hepatitis B is endemic to many
developing countries. The vast majority of chronic carriers worldwide
are individuals who were born in areas of high endemicity (i.e., where ≥
8% of the population is HBsAg-positive) and who contracted the virus
during early childhood or perinatally, i.e., via vertical transmission
from mother to neonate . For example, in East Asian, Southeast Asian
and Pacific Island countries, 35 to 50% of HBsAg-positive women are also
HBeAg-positive. If a mother is HBeAg-positive, her infants have a 70 to
90% risk of becoming infected if they do not receive immunoprophylaxis
at birth, which is not routinely available in most countries where the
virus is endemic. Forty-five per cent of the world's population live in
areas of high endemicity which include Africa, most of Asia (except
Japan and India), most Pacific Island groups, most of the Middle East,
the Amazon Basin of South America, and areas inhabited by special
populations such as native Alaskans, Australian aborigines, and New
Zealand Maoris .
In summary, HBV differs from other transmissible pathogens such as
hepatitis C and HIV by virtue of its higher transmissibility, its
preventability, and its endemicity to many developing countries.
Current policy on practice restrictions for HBV-infected health care
The Laboratory Centre for Disease Control (LCDC) of Health Canada
recently issued recommendations for health care institutions and
individual HCWs regarding transmission of bloodborne pathogens to
patients by infected HCWs . The recommendations are advisory in
nature but represent one of the most authoritative sources of guidance
for Canadian physicians and their provincial/regional licensing bodies.
We will be focusing on the recommendations regarding disclosure of risks
to patients, but we will briefly outline the LCDC approach toward
practice restrictions as this will provide the context for the
According to the LCDC recommendations, HCWs and student HCWs who
perform or will perform "exposure-prone procedures" and who test
positive for HBsAg should be referred to an expert panel for assessment.
If they are HBeAg positive, they should also cease practice immediately,
whereas those who are HBeAg negative may continue to practise pending
the panel's assessment. Those who refuse screening are presumed HBeAg
positive and treated as such. The expert panels are to be established by
the provincial and territorial regulatory bodies, and are responsible
for addressing the issue of whether the HCW is safe to continue
practising exposure-prone procedures. The LCDC advises the expert panel
to consider factors such as the type of infection and viral load;
procedural techniques; skill and experience of the HCW; evidence of
prior transmission by the HCW; the HCW's compliance with universal
precautions and other infection control practices; and the likelihood of
compliance with the practice recommendations. From this list, it appears
as if the LCDC expects the panel primarily to perform a harm-benefit
analysis based on the individual circumstances. LCDC also recommends
that "relevant ethical principles" be considered in the decision making,
but fails to provide further guidance in this area.
The LCDC guidelines also address the protection of HCW privacy and
confidentiality. In the case of physicians, their recommendations
stipulate that the professional regulating body be notified of the
seropositivity of any practising physician, and that others, including
members of the expert panel who will be making practice recommendations,
should be given personal health information "strictly on a "need to
know' basis." Similarly, the LCDC recommended steps to protect the
infected physician's identity when disclosure to patients was
Since disclosure to patients is the focus of this paper, we have
provided the LCDC recommendations on disclosure in full:
"1. Provided that the infected HCWs health status and the
exposure-prone procedures have been assessed by the expert panel and all
the panel's recommendations are followed, disclosure of a HCWs infected
status to patients before an exposure-prone procedure is carried out is
not required as a way of protecting patients from blood-borne pathogens.
2. After a significant exposure from any HCW has occurred, the
patient must be notified that he/she was exposed to the blood of a
member of the HCW team (the HCW does not need to be identified by name).
3. The HCW has an obligation to be tested following a significant
exposure to the patient. If the HCW tests positive for HBV, HCV or HIV
the patient has the right to know to which pathogen he/she was exposed
in order to access the appropriate post-exposure protocol."
It is worthwhile knowing the policy positions of other professional
associations in order to serve as a comparison to the LCDC
recommendations on practice restriction and disclosure to patients. The
Canadian Medical Association (CMA) policy recommends that "physicians
who test positive for HBsAg cease activities of their practice that
could expose patients to their body fluids until their practice has been
reviewed by an expert committee" . In terms of practice restriction,
the final decisions are left up to the expert committee, but the CMA
offers some guidance for achieving this. In particular, the CMA
recommends if HBV infectivity could not be reduced to "acceptable
levels", the physician's practice should be restricted by directing the
"to practise only on immune or infected patients when his or her body
fluids could come into contact with those of the patient; and in the
event the patient's immune status is unknown, not to practise specified
procedures during which his or her body fluids could intermingle with
those of the patient".
The CMA does not define what it considers "acceptable levels" of
infectivity. For comparison sake, the U.S. Centre for Disease Control
(CDC) issued recommendations in 1991 which differ from the LCDC
recommendations on the topic of disclosure to patients . These
recommendations stated that
"HCWs who are infected with HIV or HBV (and are HBeAg positive)
should not perform exposure-prone procedures unless they have sought
counsel from an expert review panel and been advised under what
circumstances, if any, they may continue to perform these procedures.
Such circumstances would include notifying prospective patients of the
HCW's seropositivity before they undergo exposure-prone invasive
These CDC guidelines have been subject to much criticism, and we will
be examining those critiques before recommending a policy regarding
practice restriction and disclosure of seropositivity which could be
applied to either U.S. or Canadian health care systems
Ethical problems with the LCDC recommendations on disclosure to
It is worthwhile pointing out some concerns with the LCDC's general
approach to practice restrictions. First, the current recommendations
leave too much discretion in the hands of the elusive expert panels.
More detailed guidelines with regard to practice restriction would do
more to ensure that infected HCWs are treated according to a fair
process, and are not as vulnerable to the particular biases and
experiences of the members of the expert panel overseeing their case. As
well, a New Jersey court case involving a surgeon with AIDS drew
attention to the conflict of interest of colleagues sitting on such a
committee . Their judgement may be influenced by fears of becoming
infected themselves at some point in their career.
As for the LCDC recommendations on disclosure of risks to patients,
they fall short of current legal requirements for informed consent and
have some other ethical drawbacks as well. In terms of an ethical
analysis of these disclosure recommendations, there are three parties
whose interests we must keep in mind: the infected HCW's interests in
keeping his/her career and in performing his/her role to improve the
health of patients, the patient's interest in not contracting a
potentially fatal infection, and society's interest in maintaining an
effective and affordable health care system. This involves addressing
ethical arguments such as the HCW's right to privacy, the HCW's right to
freedom from discrimination, the duty of HCWs to provide benefit for
their patients and not do them harm, and the patient's right to autonomy
and informed choice. In addition, the societal benefits and/or burdens
of any policy should also be considered. Any policy recommendations
should also be legally prudent.
The case for disclosure of serological status
The process of informed choice and its legal requirements have
evolved with the purpose of enhancing and protecting patient autonomy in
medical decision-making. Failure of physicians to disclose "material,
special or unusual risks" regarding a medical treatment or procedure to
which a patient consents may result in a battery or negligence suit
against the physician [3,7,24]. Risks meriting disclosure are determined
in Canadian courts by what a "reasonable person in the patient's
position" would want to know in order to decide whether or not to
undergo a procedure. Risks of 1% or less have been deemed "material" by
Canadian courts if the consequences are adequately serious that a
reasonable person in the patient's position would want to know those
risks before consenting to a procedure [7,24].
With regards to blood-borne pathogens in particular, an Ontario court
held that the risk (described in evidence as "infinitesimally small') of
contracting hepatitis through a blood transfusion ought to have been
disclosed in a 1989 case [7,24]. The risk of contracting HBV via an
invasive procedure when the serological status of the HCWs involved is
unknown can be calculated by multiplying the prevalence of chronic HBV
infection (0.42%) with the risk of transmission (240–2,400 per million).
This results in a transmission risk of between 1 and 10 per million.
Although very small, this risk is that of acquiring a potentially fatal
disease, and as such it would be very difficult to argue that it should
not be disclosed to patients. The manner of disclosing this risk will
vary with each individual and it is difficult to know if a blanket
statement commonly used by HCWs such as "there is a 1% risk of infection
from this procedure" is adequate, or whether they ought to specify the
source of the infection. Acquiring HBV as a result of an invasive
procedure is certainly a qualitatively different outcome than having
one's recovery complicated by a superficial wound infection.
The more difficult question is whether HCWs who are known to be
HBV-seropositive ought to disclose their serological status to patients
prior to procedures. This changes the risk of transmission from between
1 and 10 per million to between 240 and 2,400 per million. This
represents a 200-fold increase in risk but the absolute risk is still
less than one per cent. Disclosure of this increased risk would enhance
patient autonomy by allowing individual patients to decide whether or
not to have a procedure performed by an infected HCW based on the
significance of the infection risk to the patient. For many patients,
e.g., a young patient undergoing a common and widely available
procedure, this risk will likely be considered very significant and they
probably will choose to have the procedure performed by someone else.
Alternatively, consider a terminally ill patient undergoing a palliative
procedure, for whom the risk of acquiring a blood-borne pathogen with
primarily long-term complications may not be particularly significant.
It may be more important, for example, for such a patient to have the
procedure performed as soon as possible by an HCW with whom they have a
long-standing and trusting relationship. These two scenarios are
illustrative of the different values patients may have, and offering
patients the choice of having a procedure performed by a known infected
HCW allows them to make a decision based on their individual values and
Such an approach is legally prudent as well. In 1993 the Maryland
Court of Appeals, using a "reasonable patient" disclosure standard
similar to Canada's, ruled that a surgeon who was HIV seropositive did
have a duty to warn patients of his/her infected condition or refrain
from operating upon them . The ruling also stipulated patients could
recover damages for their fear of acquiring AIDS for the period of time
between learning of the surgeon's seropositive status and receiving
HIV-negative results. With the higher transmission rate of HBV by an
infected HCW to a patient, it is likely that courts would require the
same duty of HBV-seropositive HCWs.
Further, a 1991 Newsweek poll reported that 95% of the American
public wanted surgeons to be required by law to tell their patients if
they are HIV-infected [7,15]. Ninety-four percent wanted disclosure from
physicians and dentists, and 90% wanted disclosure from all HCWs. Thus,
the seropositive status of HCWs and the risk it poses to patients is
something that "reasonable" patients want to know.
Thus, from the perspectives of promoting patient autonomy and doing
what is legally prudent, there are very strong cases in favour of
infected HCWs disclosing their serological status to patients as a
requirement of performing invasive procedures. However, there are
ethical challenges to such a disclosure policy which need to be
addressed. These come from two different camps – those who argue that
disclosure in and of itself is not sufficient for protecting patients
from significant transmission risks and those who argue disclosure
should not be required for infected physicians to continue to practise.
We will examine these arguments in turn.
The duty of health care workers to benefit their patients and do them
All physicians and most other health care workers will at some time
in their life have heard the potent expression "primum non nocere",
which translated means "above all, do no harm." This phrase is often
quoted, but as Beauchamp & Childress acknowledge, "its origins are
obscure and its implications unclear." However, it provides the
foundation for the ethical principle of nonmaleficience, which "asserts
an obligation not to inflict harm intentionally".
In this vein, Tereskerz et al. argue that infected HCWs not perform
any procedures which present a risk of transmission of blood-borne
pathogens to patients and that there be national policy involving lists
of procedures which health care workers with specific infections should
refrain from performing . They do not consider disclosure of
transmission risk to patients an adequate measure for protecting
patients, however they acknowledge it to be a useful temporary measure
to provide "limited" protection for patients until a more ideal national
policy regarding practice restriction is put in place. They argue that
"patients may find it difficult to evaluate scientific information
concerning risk and may be reluctant to request an alternative physician
when their own physician is infected". Thus, on the basis of
preventing patients from harm, they propose quite strict practice
restrictions which would vary according to the specific pathogen with
which the health care worker was infected and the specific procedures to
While their proposal is noteworthy for its interest in protecting
patients from harm, it may be overly paternalistic when considering
disclosure. Instead of allowing patients to determine for themselves
what degree of risk they are willing to accept, an expert committee
would decide what level of risk is acceptable to patients in the course
of deciding which procedures an infected HCW may perform.
There are also other methods of preventing HBV transmission which may
be implemented instead of, or in addition to, practice restrictions. For
example, surgical patients could be offered immunization prior to
elective invasive procedures. This would have the added benefit of
protecting them from contracting HBV via other modes of transmission,
e.g. sexual contact or IV drug use. Current costs of serological tests
and vaccinations may be considered prohibitive factors, but there are
enough proponents of universal HBV vaccination that these costs should
not be difficult to justify. HBV vaccination is currently funded by
provincial ministries of health as part of child immunization programs
(either as infants or at 12 years of age), and is also offered by public
health units to individuals in high risk populations. Providing HBV
vaccination routinely to surgical patients would simply be an extension
of a pre-existing public health program.
It is also worth considering the HCW's own interests in avoiding harm
to their patients. Although there are certainly other benefits to be
gained from a career in health care, the majority of HCWs are at least
partially attracted to their profession by the desire to help people by
improving their health, well-being and/or quality of life. Certainly
most HCWs would feel at least some degree of remorse if they learned
they had transmitted HBV to one of their patients. Surely, they would
also want to avoid the legal difficulties which would ensue.
In addition to the duties to provide benefit and do no harm to
patients, another important role of the HCW is that of educator. Health
care workers are generally regarded with respect by patients and often
have the opportunity to serve as societal role models. If an HCW were to
reveal his/her own seropositivity in a positive manner, this could help
reduce the stigmas and fears associated with HBV and other infectious
In summary, the combination of disclosing seropositivity and offering
vaccination to patients undergoing invasive procedures sufficiently
minimizes the harm to patients to make this approach both ethically and
legally acceptable in terms of protecting patients' interests. It would
also contribute to the role of the HCW as healer and educator. However,
other important interests of health care workers such as their right to
privacy and freedom from discrimination have yet to be addressed.
The discriminatory nature of a disclosure of serological status
Several authors have argued that infected HCWs should not be
discriminated against on the basis of their infective status [1,5,7,26].
Pinching is wary of restricting the practice of infected HCWs, and
points out "those professionals whose work puts them at most risk from
blood-borne infections from their patients are in effect regarded as
having lesser health rights if potential transmission goes the other
way". Norman Daniels considers the conflict between patients' and
HCWs' perceptions of risks and discusses the distinction between
objective and subjective risk. On the one hand, he points out that
patients' perceptions of transmission risks are likely to be
exaggerated, but respecting a patient's right to choose which risks they
will accept for themselves suggests we accept patients' subjective
perceptions of transmission risks. "In contrast," he writes "the
insistence on protecting the rights of handicapped workers is intended
to protect them against the exaggerated or fabricated perceptions of
fellow workers and employers; the tendency is to insist that the
significance of the risks they impose on others be objectively
determined ." Indeed it is this tension between patients' and HCWs'
interests which is at the heart of this debate.
In Canada, legal protection against discrimination on the basis of a
"handicap" can be derived from the Charter of Rights and Freedoms, the
Canadian Human Rights Act, and the provincial Human Rights Codes .
The provincial codes are probably most important in this debate, since
they cover matters within provincial jurisdiction, which includes most
health care settings. Since at least 1992 the Ontario Human Rights
Commission has interpreted protection against discrimination to extend
to all persons infected with HIV, including those who are asymptomatic
. Flanagan summarizes the protection from discrimination of
HIV-infected workers under the Ontario Human Rights Code as being
legally binding unless
"1) the infected worker is reasonably likely to pose a serious risk
to the health and safety of her patients; 2) this risk is not similar to
the other types of risks that are associated with the delivery of health
care and generally tolerated in society; and 3) even after accommodation
the remaining risk to the health or safety of her patients outweighs the
benefits of enhancing equality for the HIV-infected HCW".
Flanagan thus argues that although there is some risk associated with
HIV-infected HCWs continuing to practice, this risk is extremely small
and within the range of risks society has long tolerated in the delivery
of health care.
Daniels and Gostin draw similar conclusions. However, all authors
were considering primarily the case of HIV-infected HCWs. Does the
100-fold greater transmission risk for HBV change their conclusions?
Daniels quotes risks of death due to general anaesthesia as 10 per
million, which by his data was 10 times greater than the risk of being
infected by a surgeon known to have HIV infection, but by newer data
(2.4 to 24 per million) is roughly equivalent. More importantly, what
these authors do not acknowledge is that routinely acceptable risks,
such as the risk of dying from anaesthetic use, are still disclosed to
patients even though the vast majority of patients are willing to accept
these risks. There will always be the rare patient who will refuse
surgical procedures with a high cure rate because of their unwillingness
to accept the low risks of anaesthetic and surgical complications.
Therefore, this is not a good argument for not disclosing transmission
risks, especially since HBV is 100 times more transmissible than HIV.
It should also be acknowledged that many HCWs who are chronic
carriers of HBV acquired the disease by virtue of being born or spending
their early childhood in a region of the world with high prevalence of
the virus. Thus, restricting the practice of these HCWs represents a
degree of discrimination against people from certain regions of the
world or from special populations, such as aboriginal groups. Barring
entry to professional educational programs on the basis of HBV
seropositivity provokes similar ethical debates, although they are
beyond the scope of this paper. Once again, the risks to patients and
coworkers need to be weighed against the negative effects to the
individual and the population group from which he/she comes. Clearly, a
policy which minimizes practice restrictions for these HCWs without
compromising patient safety is preferable to a more restrictive policy.
Several authors consider another argument, which is that the
serological status of an infected HCW is information which need not be
disclosed to the patient because it is private information about the HCW
[1,5,7]. They consider other factors affecting physician performance
such as stress, fatigue, medication side effects, family problems, legal
disputes, etc. which may affect physician performance and cause harm to
patients to the same degree as representing a transmission risk of a
blood-borne pathogen. Do patients have a right to know this type of
private information about HCWs which might affect their consent
decision? What about other private information such as the HCW's
performance on exams, history of malpractice suits, or substance abuse?
Presumably, HCWs performing far below the standard level of care will be
reported within their institution or to their governing body enough
times that corrective action will be taken, but what about the majority
of HCWs who perform slightly below optimal performance? Like the
discrimination argument, the potential harm to patients must be weighed
against the invasion of the HCW's privacy and the resulting consequences
to his/her practice.
The legal precedents here do not bode well for infected HCWs wishing
to keep their privacy. In a 1992 New Jersey case, Behringer Estate v
Princeton Medical Center, a plastic surgeon with AIDS brought suit
against the hospital for invasion of privacy and breach of
confidentiality [3,27]. The hospital was informing patients of his
illness, and as a result his practice declined. The surgeon argued the
risk of transmission was too remote to be disclosed and that the
physical condition of the physician did not need to be disclosed under
the law of informed consent. The court ruled in favour of the hospital,
stating "physicians performing invasive procedures should not knowingly
place a patient at risk because of the physician's physical
condition". The court stated
"a reasonably prudent patient would find information that his
physician is infected with HIV material to his decision to consent to a
seriously invasive procedure because the potential harm is severe and
the risk, while low, is not negligible. Moreover, he can avoid the risk
entirely without any adverse consequences for his health: by choosing
another equally competent physician (where available) he can obtain all
the therapeutic benefits without the risk of contracting HIV from his
physician. The patient, then can demonstrate not only that the
information is material to his decision, but that he would have made a
different decision had he been given the facts" .
In summary, there seem to be sufficient legal precedents in favour of
disclosing the serological status of an infected HCW as part of informed
consent for an invasive procedure. Perhaps there is some line that needs
to be drawn in terms of what personal information about the physician
can be protected from patients, but if it has any bearing on patient
safety the courts will likely rule in favour of the patients, as they
have in every case to date. The only other form of legal protection
would have to come from statutory law, and it is difficult to foresee
this as a priority for legislators.
In ethical terms, it may be helpful to distinguish between
restrictions on an infected HCW's practice which are unfortunate vs
those which are unfair. It would certainly be considered unfortunate if
a surgeon's vision was damaged such that his/her operative complication
rate went up dramatically. Would it be considered unfair if this
surgeon's operating privileges were taken away? It would be unfair if
one surgeon's privileges were taken away for this reason and another
surgeon's privileges were unchanged. The type of fairness being
considered falls under the theoretical term "formal" justice, and
involves treating like cases alike and treating different cases
differently . The other type of fairness or justice that should be
considered is distributive justice, which involves distributing the
benefits and burdens of a policy or decision equally among the different
groups involved. It certainly is unfair if infected HCWs bear all the
burdens of what is a public health problem, but we argue that this
unfairness is best remedied through compensatory measures, i.e.
retraining and/or financial compensation, rather than putting patients
at risk. Accordingly, the recommendations we propose below allow for an
infected HCW to continue to practise invasive procedures on susceptible
patients only if he/she is willing to disclose his/her seropositivity.
If privacy is more important to the HCW, then he/she should be given
retraining and financial compensation opportunities. We should also
remember that many HCWs have disability insurance plans of some kind
which are designed to make up a percentage of the lost income due to
health reasons. However, there are many HCWs, particularly physicians,
who do not have coverage, and not all plans will provide compensation
for entities such as HBV infection.
Systemic effects of disclosure vs non-disclosure
There are several utilitarian arguments to be made in favour of
non-disclosure. Daniels argues "we get better protection against HIV
transmission by emphasizing infection controls than we do by isolating
and switching from, or restricting the practice of, HIV-infected
surgeons and other health care workers ." He argues resources are
more effectively utilized in the areas of general infection control
measures and epidemiological research.
Daniels' arguments in this regard are very compelling. Certainly
measures taken to screen for and restrict the practices of infected HCWs
should not be at the expense of education, improvements in infection
control, and epidemiological research. However, we know how much the
courts favour disclosure, thus we are obliged to consider the time and
resources which would be lost in legal disputes if disclosure did not
occur. As well, it may be practically difficult for a HCW to have
imposed practice restrictions and for them not to disclose to patients
and co-workers the reason for the restrictions. The resulting rumours
may end up being worse than the reality.
There are other systemic implications to be considered, in
particular, interference in the delivery of services. Since risks to
HCWs of contracting a blood-borne pathogen are higher than the risks to
patients, more HCWs may refuse to treat sero-positive patients [5,7].
They may demand that patients be screened for blood-borne pathogens and
risk factors prior to performing invasive procedures . HCWs may also
be less willing to undergo serological testing if they fear the
consequences of a positive result .
The current climate of uncertainty as to what happens to HCWs who are
discovered to be HBsAg-positive undoubtedly contributes to the fear that
HCWs who perform invasive procedures must feel. The prospect of having
one's entire career and livelihood decided by an "expert panel" with few
governing guidelines is certainly worthy of fear. If the guidelines were
more directive and allowed HCWs more opportunity to practice under
conditions which did not represent unacceptable compromises for
patients, this would likely relieve some of the fear and anxiety amongst
HCWs who perform invasive procedures.
In summary, it is hard to clearly favour any policy approach over
another in terms of utilizing the least resources or causing the least
interference in the delivery of health care services.
What about retrospective disclosure?
A recent survey of patients in Scotland who had been informed by
letter of their exposure to a HBeAg positive dentist provides support
for retrospective disclosure of exposure to a newly-discovered
seropositive HCW . The survey was mailed to a random sample of 528
patients representing 10% of the patients in 3 of the 4 health board
areas, and 291 (55%) responses were received. Ninety-three percent of
respondents to this survey felt that patients should always be informed
if they have been treated by an infectious health care worker, even if
the risk was very small. Sixty-one percent of respondents agreed they
should have been informed by letter, whereas 29% preferred to be
informed in person.
In the discussion, Blatchford et al. refer to the Association for
Practitioners in Infection Control (APIC) rationale for recommending
retrospective patient notification . They state three purposes
behind such exercises:
"1. It may enable patients infected by disease transmitted from the
health care worker to be identified.
2. Exposed patients may be offered a prophylactic medical
intervention to reduce their risk of subsequently developing the
3. Epidemiological studies to define the risk of transmission of
disease from health care workers to patients may be undertaken."
Blatchford et al. point out a deficit in the APIC statement in that
it does not consider the patient's right to information as rationale for
doing retrospective notification.
Although the patients can no longer make a decision about undergoing
the procedure performed by the infected HCW, because this has already
occurred, the information is important to them for making informed
decisions about the rest of their lives. They will need this information
to get the necessary screening to see if transmission has occurred and
follow-up to avoid complications if transmission has occurred. They
should also be educated about their risk of transmitting the infection
to others and associated prevention measures.
Arguments against retrospective notification of patients are the time
and costs involved, and the creation of undue anxiety, as only a small
minority of patients notified will have contracted the infection.
However, if the patients discovered at a later date that they had been
exposed and not notified of the exposure, this would certainly have
deleterious consequences with regard to their trust in the health care
professions and the patient-HCW relationship.
Recommendations for restricting the practice of HBV-infected HCWs
What we propose below is a set of recommendations to be considered by
governing bodies when making decisions about restricting the practice of
HBV-infected HCWs. These recommendations take into account the
relatively high transmissibility of HBV, the available means of
preventing HBV transmission, and the legal and ethical arguments in
favour of disclosure to patients of transmission risks, including the
elevated risks if an involved HCW is known to be seropositive. The
recommendations do not mandate disclosure or non-disclosure, but offer
infected HCWs further opportunities to practise invasive procedures
without jeopardizing patient safety and autonomy if they are willing to
relinquish some privacy and reveal their seropositive status.
1. All patients undergoing exposure-prone procedures should be
informed of the risk of acquiring a blood-borne pathogen such as HBV
during the procedure, regardless of their HBV status. This should be
disclosed as part of the general pre-operative consent process, along
with other routine risks such as hemorrhage, wound infection, and
2. All patients undergoing exposure-prone procedures should be asked
for documentation of a complete immunization series or of positive HBsAg
serology if previously performed. Patients with no such documentation
should be tested for protective antibodies as part of the pre-operative
workup. Patients who are not immune should be offered the option of
vaccination prior to undergoing an elective or non-urgent procedure.
3. Physicians (or other HCWs) with known HBsAg seropositivity
(regardless of their HBeAg status) should be allowed to perform
exposure-prone procedures on patients with documented immunity to HBV,
either from previous infection or from immunization. They need not
disclose their seropositivity to these patients, as the transmission
risk is no longer an issue.
4. HBV-seropositive HCWs may perform an exposure-prone procedure on a
patient who is not immune to HBV provided the patient is a) informed of
the elevated risk of infection during the procedure due to the HCW's
known seropositivity, b) offered the services of a replacement
seronegative HCW to perform the procedure, and c) after considering
these options, the patient chooses to have the procedure performed by
the infected HCW.
5. When an HCW is discovered to test positive for HBsAg, all patients
who underwent exposure-prone procedures performed by the HCW should be
traced and notified of their now elevated risk of having contracted HBV
during the procedure. They should be offered serological testing and
counselling. This process should be a public health responsibility, and
not the responsibility of the infected HCW.
It should be noted that these recommendations may not be practical
for student HCWs who are HBV seropositive. It will be more difficult for
these to keep their seropositivity confidential as they rotate
frequently through different services. A large number of people would
need to know the practice restrictions which apply to them in order to
avoid putting non-immune patients at risk of contracting HBV. As well,
disclosure opportunities to patients would be more difficult, since
students are often requested to assist in procedures with minimal
advance notice, and students do not have the same type of relationship
with patients as staff HCWs.
Hepatitis B vims is unique amongst transmissible pathogens due to its
high transmissibility and its preventability, and therefore ethically
and legally acceptable practice restrictions for HBV-infected HCWs are
not necessarily equivalent to those for HIV- or HCV-infected physicians.
Policy regarding practice restriction of HBV-infected HCWs should take
into account the interests of patients, HCWs and the implications of any
policy to the health care system at large. The current policy in Canada
leaves too much discretion in the hands of vaguely defined expert
panels, and is likely contributing to fear and anxiety amongst HCWs who
are at risk of acquiring and transmitting infectious pathogens.
Providing vaccination against HBV to patients undergoing elective
procedures reduces transmission risks and complements existing
vaccination programs. Allowing HBsAg-positive HCWs to practise without
restrictions on patients who have already been infected with or
vaccinated against HBV-would allow these HCWs to continue their career
with minimal interference. This also avoids undue discrimination against
these HCWs. The option for these HCWs to disclose their seropositivity
to susceptible patients provides an opportunity for patients to choose
what risks they are willing to accept in the course of their health
care, for HCWs to educate their patients about infectious diseases such
as HBV, and for infected HCWs to perform more exposure-prone procedures.
Retraining and financial compensation should be available for those HCWs
who choose not to disclose.
The authors would like to thank Shari Gruman for help in preparing
the manuscript. Dr Upshur is supported by a research scholarship from
the Department of Family and Community Medicine, University of Toronto
and a New Investigator Award from the Canadian Institutes of Health
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