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The ethics of legally detaining a patient who has tuberculosis

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VOL: 100, ISSUE: 36, PAGE NO: 52

Jennie Negus, RN, DipN, is senior nurse for medicine and rehabilitation

Kerri Viney, MPh, BA, is lead tuberculosis specialist nurse; both at Homerton University Hospital NHS Foundation Trust, London; Graham Bothamley, PhD, FRCP, is lead tuberculosis physician, North East London TB Network

Five months later she was admitted again for a short time with abdominal pain. At that time she was spending £100 on cocaine and £60 on heroin daily. Her urine was also positive for codeine and benzodiazepines.

Ms Green came to casualty fourteen months later with symptoms of breathlessness and a productive cough with haemoptysis (blood in sputum). She had experienced significant weight loss - her dress size had fallen from a size 18 to size 8.

She said she had been unwell for the past two years and this had become worse over the previous six months. Ms Green was still using heroin and funding her addiction by working as a prostitute.

A chest X-ray showed shadowing in the upper zone of her right lung and the whole of the left lung. Tuberculosis was identified in her sputum specimens. This meant she was potentially infectious and so she was notified to the proper officer at the Health Protection Agency, which is a statutory requirement.

Ms Green was not registered with a GP and she smoked 40 cigarettes a day.

We contacted the Drug and Alcohol Service and the social work department for help. However, 10 days after admission to hospital Ms Green left the ward in the early hours of the morning and did not return. Attempts to find her were unsuccessful.

Eight weeks later she returned to A&E with the same symptoms. She said she had been concerned for the safety of her children and that she would only be happy to return to hospital after she had made arrangements for them to stay with her mother. She had needle tracks in her arms.

Isolating the infection

Ms Green was immediately isolated in a negative pressure room. The results from microbiology examinations confirmed that her sputum specimens were still positive for TB. As part of the infection control procedures she was advised not to leave her side room. The TB specialist nurses visited to provide support, expert advice and education, and to start the contact-tracing process.

Ms Green often left the room to use the patients’ smoking area, which created a risk of cross-infection for other patients. We decided to allow her to smoke in her room after the medical gas supply had been sealed. Despite this Ms Green continued to leave her room.

An application was therefore made to the consultant in communicable disease control to obtain enforced isolation under section 38 of the Public Health (Control of Disease) Act 1984. The magistrate agreed to grant this for one month.

Implementing section 38

The act states that ‘any officer of the hospital may do all acts necessary’ to effect the order to detain an infectious person in hospital. The ethical dilemma was how to carry out this order if Ms Green decided to leave. Nurses may not wish to confuse their caring role with a custodial function.

On a previous occasion, before the introduction of the Human Rights Act 1998, a security guard had been employed to implement the order. As the isolation room has a lock we considered if this could be used.

The senior nurse had the following questions:

- Would Ms Green’s rights be infringed by locking her door - especially as the ward was not a secure unit?

- Would Ms Green’s confidentiality be infringed by posting a security guard at the door - especially if she or he were in uniform, as this would draw attention to Ms Green’s detention?

- Would the guard be physically able to detain Ms Green if she tried to leave - considering her infectious state, frail medical condition and the local security services policy regarding hands-on restraint? (This policy regards the hands-on restraint of a patient to be a last resort).

- Would placing a lock on the door constitute a health and safety risk in the event of fire or a similar event?

In view of these concerns, the senior nurse instructed the ward to employ a nurse special to provide one-to-one supervision for Ms Green. This nurse was to encourage Ms Green to stay in her room, accept treatment and to alert other staff if she tried to leave.

Two days after starting this course of action, Ms Green left the ward when the assigned nurse was taking a break and other staff were engaged with patient care.

The senior nurse suggested an urgent meeting with the ward manager, matron, TB specialist nurses and the consultant to discuss developing a protocol for future management if Ms Green returned.

Code of professional conduct

The senior nurse was concerned that she had underestimated the legal implications of this case and questioned her professional accountability.

The Code of Professional Conduct (NMC, 2002) lists seven key values, of which the following were particularly relevant in this case:

- Respect the patient or client as an individual;

- Obtain consent before giving treatment or care;

- Protect confidential information;

- Cooperate with others in the team;

- Act to identify and minimise risk to patients and clients.

The senior nurse was concerned that she may have compromised these as a consequence of the complex nature of this case. She sought further advice from the trust’s director of nursing and chief executive (CE).

Ms Green’s consultant also e-mailed the CE to put forward his concerns about the hospital’s ability to carry out the magistrate’s order to detain the patient.

Devising a management protocol

The CE convened a meeting the next day and instructed the trust’s solicitor to attend. The consultant, senior nurse, head of security, matron and a staff nurse from the ward were also present at the meeting. There was much debate about the interpretation of the Public Health (Control of Disease) Act 1984 against the Human Rights Act 1998 (Box 1).

The security team said their permanent staff accessed occupational health services, but many of their staff were employed on temporary contracts and there was no guarantee they were screened and protected against TB.

Also, a guard would be unable to restrain without a clinical ‘partner’ (a nursing or medical team member able to advise from a clinical perspective). This would therefore require two people to be involved in the detention.

The central theme in the discussion was one of ‘proportion’ - the action to restrain Ms Green must be proportionate to the risk. A protocol was developed from these discussions and agreed by the CE (Box 2).

All parties involved (including the trust’s solicitor) were satisfied with these proposals. The ward staff in particular felt happier.

Local guidelines

The matron drew up local guidelines to ensure the protocol was implemented appropriately. There was concern that the door would be locked if the ward was busy or if a nurse special was not available. It was important that all the staff were aware of the implications and the actions required.

Local guidelines:

- The patient’s nurse special must have appropriate clinical skills and knowledge to care safely for an isolated patient.

- A nurse special is available from 6am-10pm (this is reviewed on a regular basis).

- If the patient presents a risk to themselves or others by attempting to leave the isolation room, then the nurse special will manually lock the door from outside and immediately inform the nurse in charge of the ward. The nurse in charge will decide if the control measure should continue.

- Door sensors are to remain in the active mode at all times, but can be isolated through the key switch to allow authorised access only. One key is to be held by the nurse special and a second key by the nurse in charge of the ward.

- The isolation room will be locked between 10pm and 6am when the nurse special is not on duty. The patient will be checked at least every 30 minutes and this will be recorded in the patient’s records.

- In the event of fire alarm activation the nurse in charge will ensure that the door is unlocked immediately.

- If staff feel threatened at any time, the Security Threat Action Team can be called immediately.


Isolation for patients with multidrug-resistant TB is required until the sputum culture becomes negative. This may take a minimum of two months (Department of Health Interdepartmental Working Group on Tuberculosis, 1998). Side rooms remain a poor substitute for a dedicated isolation facility. Isolation rooms need to have ensuite facilities.

Discussions have started for future developments, which include a secluded garden and isolation bay to make such inpatient stays - whether enforced under the Public Health (Control of Disease) Act 1984 or carried out with the patient’s consent for the safety of the public - as humane as possible.

There is no provision under the Public Health (Control of Disease) Act 1984 to ensure that treatment for TB is taken or completed.

Ms Green improved over the following weeks. Frank talks with ward staff about her health appeared to make her realise how she had to take control and help herself. She took her treatment, did not try to leave, and even discussed the need to address her fears for the future.

The matron obtained an exercise bike for her to use and Ms Green regained much of her lost weight.

Before discharge the staff bought Ms Green some new clothes, and arranged for a fully funded drug rehabilitation placement and temporary accommodation. She attended for directly observed therapy for one week after leaving the ward, but then left her accommodation. It has now been three months since she was last seen and all attempts to locate her have failed.

The ethical dilemmas presented by this case were complex and demonstrated the need to discuss such issues with all relevant parties involved in the patient’s care. Our response to legislation governing Ms Green’s detention reflected the differing interpretations of legal responsibilities and individual rights. The key issue of proportionate action measured against risk steered the decisions that were made.

The new protocol is now in place for future use and all disciplines are aware of the role and challenges that their colleagues face.

There is a need to discuss how the Public Health (Control of Disease) Act 1984 is implemented in hospitals. It seems futile to detain a patient only during the period of infectiousness, if patients are then going to stop treatment and become infectious again.

There is a view that the stipulations should continue for the anticipated full nine months of treatment to achieve a cure. Revision of the law to permit less drastic measures, such as the requirements to be examined, to attend for directly observed therapy and to complete treatment, would be helpful.


A secure unit with adequate facilities for isolation and recreation is needed for those few patients with TB who are unable to help themselves achieve a cure and require a long inpatient stay.

Perhaps outbreaks of other infectious diseases, such as SARS, will focus the need for both legal changes and adequate facilities to support patients’ treatment.

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