Annual rates of adults transported to EDs by law enforcement increased by almost 50% from 2009 to 2016, according to the authors of a recent study.1 “We were drawn to the idea that law enforcement may be saddled with responsibilities that are outside of their primary training. We were struck by the fact that these transports had not been well-characterized before,” says David L. Rosen, MD, PHD, MSPH, the study’s lead author and associate professor of medicine in the division of infectious diseases at University of North Carolina School of Medicine in Chapel Hill.

Of the 136,240 patients brought to EDs by law enforcement during the study period, 43.1% had a mental health diagnosis; 22% of all visits were for involuntary commitments. “In EDs, those transported for involuntary commitments tend to have very long waiting times,” Rosen notes. “There is certainly risk for patients who are in need of psychiatric care, but whose care is delayed.”

ED providers and law enforcement may have conflicting priorities around the use of restraints or the collection of evidence. Another concern is those in need of medical attention experiencing a bad outcome on the way to the ED. “While EMS can provide patient care during a transport, law enforcement is unable. There is an inherent risk in not transporting by EMS,” Rosen says.

Sometimes, EDs are asked to “medically clear” patients brought in by law enforcement, which carries significant legal implications. “What we are seeing more and more is anything and everything that could possibly be an injury, or something that the patient has, is being brought to the ED,” says Christopher B. Colwell, MD, chief of emergency medicine at Zuckerberg San Francisco General Hospital and Trauma Center. “Medical clearance is a terrible term that imposes a lot of liability on emergency physicians. Nobody is really sure what it means. Now, it’s being distorted to cover any potential complaint.”

From the perspective of law enforcement, medical clearance seems to suggest they are offloading their own liability exposure. Some officers tell providers they have been instructed to not bring in anyone without medical clearance. The term does not indicate what the EP has to evaluate, nor does it specify the time frame. “In the ED, we know how limited our evaluation can be,” Colwell says. “Is that person cleared for 12 hours, a day, a week? It opens up a whole can of worms for liability.”

Medical clearance implies all medical issues have been ruled out. This could mean law enforcement feels free to disregard new concerning symptoms (e.g., altered mental status) since the EP already “cleared” the patient. “Law enforcement may say, ‘We are covered, we don’t have to pay attention to this anymore,’” Colwell offers.

Previously, law enforcement brought people to the ED only if there was a specific medical concern. Police wanted to know if a motor vehicle accident victim sustained a fracture, or if someone with altered mental status had a head injury. Now, law enforcement brings in a steady stream of patients with no particular question for the EP.

Instead, law enforcement gives vague concerns such as “He’s been acting a little odd, and might have been drinking. We kind of found him acting strangely, and nobody really knows what happened. We just want him cleared.”

“This is only becoming more common. It happens on every shift, virtually,” Colwell reports. “Even very low suspicion issues are brought to the ED.”

On a recent shift, four patients were brought to the ED for causing a disturbance, likely related to behavioral health problems, at a local business. The business called the police, the police called EMS, and EMS brought the individuals to the ED. Sometimes, the patient is on a legal hold, and sometimes not. “The easiest thing is to take them to the ED and let us deal with it,” Colwell says.

To further complicate matters, most patients brought in by law enforcement have no real chief complaint and no desire to be seen by a clinician. Some are unwilling to participate in the evaluation. In such cases, the provider is asked to do something not for the patient, but for law enforcement, according to Colwell. “They are asking us to relieve them of their perceived responsibility. It’s a really frustrating situation,” Colwell says.

Law enforcement wants assurance that there are no medical concerns whatsoever, which is not possible for the ED. “You can’t do enormous workups on every one of them. We’ve got to pick and choose based on limited information,” Colwell says.

A more preferable term for these cases is medical stabilization. “That’s really what we do in the ED. We evaluate a patient in a particular point in time,” Colwell says.

ED providers can tell law enforcement there is no apparent need for acute medical intervention at the time. Colwell directly addresses the issue by informing law enforcement this way: “We cannot provide medical clearance. We can provide answers to specific questions. Is there an intracranial hemorrhage? Does the laceration need to be repaired? Is there a fracture of the neck? But we can’t give a generalized clearance for patients.”

By engaging in this proactive conversation with law enforcement, the capabilities of the ED are made clear. “Some people have this idea that the ED can do anything medical anytime. That is really not what EDs were designed for,” Colwell says. “We end up getting a lot of patients from law enforcement that are filling up EDs, and we are not able to focus on other patients who need emergency care.”

Providers can explain to law enforcement what reasonable actions staff can take that could help. “We try to manage expectations. Just because someone has been seen in the ED does not mean they are cleared. If other issues come up, you certainly need to seek medical attention,” Colwell explains.

Patients in police custody still have a right to privacy under patient privacy regulations. “But there are some specific exceptions for patients brought in by law enforcement,” says Jordan Barnette, JD, an attorney in the Johnson City, TN, office of Hancock, Daniel & Johnson.

ED providers may disclose protected health information of a suspect in police custody if the officer asserts it is necessary for safety and law enforcement purposes or the continuing treatment of the individual. “If the victim is incapacitated, the ED provider may make disclosures that it believes are in the best interest of the victim only when necessary for immediate law enforcement activity, provided that the requesting officer represents that the information is not intended to be used against the victim,” Barnette explains.

Patients may be in need of mental health treatment. “Mental health screening is important for these patients, who may have experienced recent psychological trauma or present in an acute mental health crisis,” Barnette notes.

The civil commitment process allows for institutions to take temporary custody of mentally ill patients before they can be moved to a more appropriate level of care. “Do not rely on law enforcement to monitor or control a patient after they have been transferred to facility custody,” Barnette advises. Noting an injury’s presentation is “consistent with” someone’s version of events could lead to the ED provider serving as an expert witness. Comments such as “Wounds appear defensive, consistent with patient’s story” can quickly become a focus of attention for trial attorneys. “It is not medical staff’s job to build a case for a patient or state prosecutors,” Barnette says.

It is OK for ED providers to omit narrative details that are not pertinent to treatment, such as where someone was traveling to or from, or who they say they were with when the injury occurred. “Sometimes, those details will be pertinent to treatment. Often, they won’t be,” Barnette says.

REFERENCE

  1. Rosen DL, Travers D. Emergency department visits among patients transported by law enforcement officers. PLoS One 2021;16:e0244679.