EDs Need Clarity on Policies for Law Enforcement Interactions
July 1, 2023 5 minutes read
By Stacey Kusterbeck
Emergency providers interact with law enforcement regularly — sometimes multiple times a day. Most of those interactions go smoothly, but EDs struggle with what to do when clinical or ethical obligations conflict with law enforcement requests.
“At this particular cultural and political moment, interactions with law enforcement can be incredibly emotionally charged,” notes Samantha Chao, MD, a former predoctoral fellow in clinical ethics at the University of Michigan Center for Bioethics and Social Sciences in Medicine.
However, EDs often lack specific policies for these tricky situations. “This results in ad-hoc decision-making by the physicians and nurses, potentially violating patients’ desires and rights,” according to Utsha G. Khatri, MD, MSHP, an assistant professor of emergency medicine at Icahn School of Medicine at Mount Sinai in New York City.
Khatri and colleagues surveyed 141 emergency physicians (EPs) about law enforcement activities in the ED.1 Only 13% of EPs were aware of hospital policies for information-gathering by law enforcement officers in the ED. More than one-third of EPs stated law enforcement was present in the ED daily. Only 12% of EPs considered patients’ consent or preferences as relevant to interactions with law enforcement.
“While the specific details of institutional policies will be shaped by the healthcare systems’ operations and local and state law, policies must require patient consent for disclosure of health information or questioning by police,” Khatri notes. “Patients have an expectation of privacy that is both based on medical ethics and codified by state and federal law.”
HIPAA establishes that protected health information (PHI) is shielded from all third parties, including law enforcement officers. “Sharing PHI is only required under state-specific mandatory reporting laws, or when there is a warrant or court order. Outside of these limited scenarios, disclosure of PHI risks putting hospital staff and healthcare institutions in legal liability,” Khatri warns.
Law enforcement might involve ED clinicians in gathering forensic evidence. “Physicians should endeavor to maintain the patient’s personal privacy during physical exam,” says Eileen F. Baker, MD, PhD, FACEP, co-author of a recent paper on ethical and legal issues with ED forensic evidence collection.2
Police officers may not feel comfortable leaving the room, as it may be unsafe to do so. “But the physician can take care to shield sensitive areas from the officer’s view when exposing the patient for physical exam. The physician may request that the law enforcement personnel turn off their body cameras. But again, law enforcement policies may supersede this request,” Baker admits.
Sometimes, EPs are faced with a law enforcement request, warrant, or court order to perform testing or imaging that is not medically indicated, solely for the purpose of obtaining forensic evidence. “If there is no medical indication for this workup and the patient does not consent to having it done, it should not be performed in the ED,” Chao argues.
However, if EPs conscientiously object to complying with legal orders they believe might harm a patient, the EP could face legal repercussions. “The repercussions can depend on the law enforcement officials the physician is interacting with, as well as the state the physician is in,” Chao says.
In theory, everyone should respect the privacy of patients who are in custody or incarcerated, just the same way as for other ED patients. “In reality and in practice, this is often not the case,” Chao asserts.
Law enforcement must ensure safety and prevent the patient from fleeing. Thus, they often are at the bedside or within earshot when a patient provides personal medical information. “There are no clear regulations or guidance that say this should or should not be happening,” Chao laments.
EPs can work with law enforcement to protect patient privacy as much as possible. For example, EPs can ask officers to step out of earshot when taking a patient history, while keeping the patient restrained with another member of the healthcare team in the room.
In Chao’s clinical practice, openly communicating with law enforcement to learn more about their perspective has been helpful. In one instance, an incarcerated patient was brought to the ED with an arm injury. The patient arrived in the resuscitation bay with the arm shackled. Chao approached the officers and acknowledged their goal was to keep the patient secure, but also explained that removing the shackle was important to evaluate the extremity appropriately. “They were willing to remove the shackle, but did have one of their officers stand closer to the patient in case the patient displayed any concerning physical behavior,” Chao reports.
There always is a possibility information documented in the medical record will be used as evidence in court. “With that in mind, emergency physicians should document what is needed to justify their medical decision-making,” Chao says.
EPs do not necessarily need to document things they did not witness. For example, an EP might document “The patient was hit in the head during an altercation” instead of specifying “the patient was hit in the head after they threatened their neighbor.”
Any hospital policy related to patients who are in custody or incarcerated should be developed in conjunction with the relevant law enforcement agencies involved. Otherwise, the hospital policy might conflict with law enforcement policy. “Then, you are still at a stalemate,” Chao says.
When developing these policies, Chao says leaders should establish that patients in custody with capacity are their own medical decision-makers. The policy also should include how to identify an appropriate surrogate decision-maker, if necessary.
Further, determine when shackles can be adjusted or removed when necessary for medical evaluation or treatment, or in situations where the elopement risk is conceivably minimal (e.g., when a patient is sedated, critically ill, or at the end of life). Ensure patient privacy when providing a history or sensitive medical information. Finally, create a process to mediate conflict between physicians and law enforcement. Include contact information for officials higher up the chain of command, such as the warden, if needed.
Jay Brenner, MD, FACEP, says it is important for emergency clinicians to remember that law enforcement officials are professionals just trying to do their jobs. Brenner recommends emergency clinicians introduce themselves to law enforcement, explain their role, and explain any relevant policies and procedures. For example, EPs might explain the policy of taking a proper history with confidentiality by asking for law enforcement to step out of the room, if possible.
“Another example would be examining patients properly, asking for handcuff removal as possible, or having law enforcement turn away for sensitive exams,” says Brenner, medical director of the community ED at SUNY Upstate Medical University.
Good communication can alleviate tension and ameliorate the perception of conflicting priorities. “We are all interested in protecting public health and safety,” Brenner offers. “Establishing that common ground may seem cliché or kitschy, but it is essential to recognize that we are on the same team of creating an environment in which the patient can be properly cared.”
REFERENCES
1. Khatri UG, Kaufman EJ, Seeburger EF, et al. Emergency physician observations and attitudes on law enforcement activities in the emergency department. West J Emerg Med 2023;24:160-168.
2. Simon JR, Derse AR, Marco CA, et al. Law enforcement information gathering in the emergency department: Legal and ethical background and practical approaches. J Am Coll Emerg Physicians Open 2023;4:e12914.
Any hospital policy related to patients who are in custody or incarcerated should be developed in conjunction with the relevant law enforcement agencies. Leaders should establish that patients in custody with capacity are their own medical decision-makers. The policy also should include how to identify an appropriate surrogate decision-maker, if necessary.
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