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EPs interact with law enforcement on a regular basis, with police-escorted prisoners, patients suspected of driving while intoxicated, and victims and perpetrators of assault. Such interactions pose some unique legal risks for EPs.
“Conflicts may arise in a variety of circumstances,” says Catherine A. Marco, MD, FACEP, professor in the department of emergency medicine at Wright State University in Dayton, OH.
If a suspected or convicted criminal arrives in the ED, law enforcement officers are anxious to obtain evidence, interview the patient, or expedite the patient’s discharge. EPs have a different priority — the duty to assess and treat the patient’s medical condition, regardless of the patient’s status with the law.
“EPs should work collaboratively with law enforcement to ensure prioritization of medical treatment,” says Marco, who co-authored a recent paper on this topic.1
Sometimes, there is disagreement between EPs and law enforcement as to the use of force to detain patients. “Law enforcement may wish to detain a patient and enforce medical care, but the physician may judge that the patient has capacity to refuse care,” Marco says.
Similarly, there can be differences of opinion regarding the prioritization of interviews, evidence collection, and medical treatment. The bottom line: EPs always must consider the patient’s best interest. “Medical treatment should always take priority over evidence or information collection,” Marco says, adding that the best approach is to perform procedures and diagnostic tests that are clinically indicated.
Local police, in an attempt to carry out their duty to investigate and prosecute criminal activity, may enter the ED to search and question patients. William M. Mandell, JD, an attorney at Pierce & Mandell in Boston, says, “The ED needs to always be mindful that while it wants to cooperate with law enforcement, it has other legal and ethical duties to uphold patients’ rights.”
These include the patient’s right to privacy. “This is a constant balancing act that needs to be looked at,” Mandell stresses. “If you don’t get this right, it can be a cause of liability.”
Some EPs have been sued for acting as the extension of law enforcement in illegal searches and seizures. “This can occur if an ED clinician obtains a blood alcohol level in a patient suspected of a DUI,” Mandell says.
EPs can find themselves “in the middle” of DUI cases, he explains. This happens when alleged DUI perpetrators are brought to the ED after motor vehicle accidents. Massachusetts, like many other states, has an “implied consent law” that applies to drivers who are stopped for suspected DUI. The law provides that all drivers give their implied consent to undergo a blood or breath test if they are lawfully arrested on suspicion of drunk driving.
“But unless the police officer has a warrant to take the driver’s blood, they cannot force the driver to provide a sample of his or her blood,” Mandell explains. However, they can ask a driver to submit to a blood sample, if the driver is an ED patient under arrest for DUI.
“Patients obviously have privacy and Fourth Amendment constitutional rights, as discussed in the most recent Supreme Court case on the matter,” Mandell says.2
HIPAA and most state laws allow for unauthorized minimally necessary disclosures to address ongoing major criminal actions. As for how this applies to an ED patient, Mandell says: “One way to think about it is: Is there an ongoing public emergency or criminal action? Or is it an investigation of a prior alleged action?”
Generally, non-consensual blood samples should be taken at the direction of the police for a patient in custody under arrest with a search warrant. “EDs should weigh this carefully, with the advice of good local counsel who understands the applicability of local and state laws,” Mandell advises.
Financial Disclosure: The following individuals disclose that they have no consultant, stockholder, speaker’s bureau, research, or other financial relationships with companies having ties to this field of study: Arthur R. Derse, MD, JD, FACEP (Physician Editor); Stacey Kusterbeck (Author); David Meyers, MD, FACEP (Author); Jonathan Springston (Editor); Kay Ball, RN, PhD, CNOR, FAAN, (Nurse Planner); and Shelly Morrow Mark (Executive Editor).