Background
The ACEP Board assigned to the State Legislative and Regulatory Committee the task of taking action on Amended Resolution 54(21):
RESOLVED, That ACEP advocate for state chapters to create easily accessible transparent toolkits that outline state-specific policies and laws regarding law enforcement presence in the ED, thereby enhancing physician understanding of patient and physician rights in their interactions with law enforcement within the ED as well as their own rights as physicians.
Emergency physicians (EPs) and emergency department (ED) staff often interact with law enforcement personnel for a variety of reasons. Promoting a collegial working relationship between ED staff and law enforcement is in the best interest of EPs to maintain a collegial working relationship with law enforcement. However, officers of the law may not be aware of EPs’ ethical and legal obligations to their patients with regard to patient autonomy, protection of confidentiality and EMTALA. Further, while observing and overhearing patient interactions, police officers and other law enforcement officials may be wearing body cameras or engaging in other forms of investigative activity that may potentially interfere with patient care and other ED operations.
As specific circumstances, such as state law, county or local law enforcement policies and hospital policies vary significantly and are subject to periodic updating, highly individualized recommendations for managing interactions with law enforcement are difficult to provide, as suggested by this Resolution. Individual EDs are thus encouraged to work proactively with local stakeholders to customize policies that optimize patient care. A proactive approach would streamline these interactions and prevent unnecessary conflict or confusion when these interactions occur.
Types of Interaction Between Law Enforcement and ED Staff:
The following outline contains many of the reasons for which law enforcement and ED staff would interact. This list is not meant to be exhaustive, but rather to list the broad categories, in which law enforcement interactions may occur.
- An immediate life-threatening and dangerous situation is occurring in the ED, i.e., the presence of an active shooter.
- A patient or visitor is displaying violent behavior including assaultive behavior against ED staff.
- A patient that has exhibited dangerous or assaultive behavior in the field is en route via Emergency Medical Services with police assistance.
- A patient in the ED is a suspect in a crime. This patient may have been brought in initially by law enforcement or law enforcement arrives later while the patient is undergoing examination or treatment.
- A patient is the victim of a crime or potential crime and law enforcement has arrived in the ED to interview the individual about the crime as part of the investigation. This includes patients with reportable injuries or circumstances (e.g., gunshot wounds, stabbings or other assaults, suspected human trafficking).
- A patient has been arrested and is brought to the ED for “medical clearance” pending incarceration, either due to a verbalized medical concern or as part of local law enforcement policy.
- A patient is brought to the ED accompanied by law enforcement for a forensic blood draw for suspicion of operating a vehicle under the influence of alcohol or other substances.
- Law enforcement arrives in the ED seeking information about an ED patient not currently present that may be either a victim or a suspect in a crime.
Basic Principles:
Regardless of the situation or venue, all emergency physicians should recognize 4 basic principles when dealing with law enforcement personnel in the ED:
1. Autonomy: Patients in custody that have decision-making capacity have rights to informed consent and must be allowed to make independent medical decisions about their health care, including refusal of interventions, similar to other patients. They may also appoint a surrogate decision maker using a written advance directive, medical power of attorney, or verbal designation. In no case should a law enforcement official be allowed to make medical decisions for any patient in their custody. EPs cannot obtain testing without patient consent, regardless of the patient’s criminal legal status, and failure to respect a patient's bodily autonomy and obtain informed consent could make the EP liable for battery.
- Patients under arrest or under investigation, or are victims of a crime, have the right to refuse to speak to any law enforcement official.
- Additionally, adult patients that are victims of violence have the right to refuse law enforcement involvement unless the nature of the injury falls under the state’s or local jurisdiction’s mandatory reporting requirement, e.g., the patient is a gunshot victim
- In some states, implied consent for alcohol or drug testing in individuals brought to the ED for suspected impaired driving is linked to a state-issued driver’s license.
- EPs are not legally required to perform medically unnecessary procedures or tests, including phlebotomy for blood alcohol testing, when requested by law enforcement.
- There are circumstances in which the state may override the medical decision-making of a patient who is incarcerated. This event may occur if an incarcerated patient refuses the recommended therapy as a means of bargaining or protest. When caring for incarcerated individuals, clinicians should distinguish between a patient’s right to the rational refusal of a recommended treatment and a decision made for potential secondary gain.
2. Constitutional Rights: Incarcerated patients and arrestees have a constitutional right to health care under the Eighth Amendment. In addition, EPs must at all times respect the rights of arrestees and incarcerated patients under the Fourth Amendment (freedom from search or seizure without due process of law) and Fifth Amendment (the right to avoid self-incrimination). This means that EPs should attempt to advocate for patient autonomy and protect patient confidentiality. In particular, EPs should not conduct sensitive body cavity searches for contraband material in the absence of the patient’s voluntary and non-coercive consent. In cases where a law enforcement officer obtains a judicial order or subpoena to conduct a body cavity search of a patient, and the patient refuses, the EP should honor the patient’s wishes and contact the on-call hospital administrator and/or hospital attorney immediately.
- Plain View Doctrine: The “plain view” exception to the Fourth Amendment warrant requirement permits a law enforcement officer to seize clearly incriminating evidence or contraband when it is discovered in a place where the officer has a right to be. Thus, an officer may see private personal belongings in patient care areas, including the trauma or resuscitation bay, and may legally seek information or property from anyone they encounter. For the Plain View Doctrine to apply, the following conditions must be met:
- The officer is lawfully present at the place where the evidence can be plainly viewed;
- The officer has a lawful right of access to the object; and
- The incriminating character of the object is immediately apparent.
The Plain View Doctrine in hospitals is subject to legal scrutiny and specific conditions must be met for it to be valid; officers do not have lawful, unrestricted access to hospitals or EDs. Situations where officer presence may be lawful include:
-
- When called to the ED in response to a concern for public safety or criminal activity
- When accompanying an individual who is in police or correctional custody
- When delivering a warrant
- When employed by the hospital to provide security
- EMTALA: All provisions of the Emergency Medical Treatment and Labor Act apply to incarcerated patients and arrestees without exception. Thus, EPs are obligated to provide a comprehensive medical screening examination to such patients, to check for the presence of an emergency medical condition (EMC). If an EMC is found, the EP has an obligation to stabilize the patient up to the full capability of the ED. Transfer of unstable patients with EMCs are only permitted if the hospital lacks capacity or capability of further stabilizing treatment, which for incarcerated patients is usually the case with community hospitals that lack a secure inpatient unit.
3. Confidentiality: The Health Insurance Portability and Accountability Act of 1996 (HIPAA) governs the disclosure and use of protected health information (PHI) in any form (written, electronic or verbal) for all patients, including those who are incarcerated or under arrest. State-based privacy laws and hospital patient confidentiality policies are also applicable. Officers requesting medical records for patients already discharged from the ED should be referred to the hospital’s medical records department.
Law enforcement personnel do not have an unqualified right to access PHI for any patient who is under arrest, incarcerated or under investigation of a crime. However, HIPAA does have exceptions for law enforcement, which are permissive and not mandatory, and which maintain HIPAA’s requirements to give minimal information, as follows:
- Court-Ordered or Grand Jury Subpoenas, Warrants or Summonses: A hospital may release patient information in response to a warrant or subpoena issued or ordered by a court or grand jury, or a summons issued by a judicial officer. The hospital may disclose only that information specifically described in the subpoena, warrant or summons.
- Administrative Requests, Subpoenas or Summonses: An administrative request, subpoena or summons is issued by a federal or state agency or law enforcement official, rather than a court of law. Patient information may be disclosed only if each of the following 3 requirements are met:
- Relevance: The information requested must be relevant and material to a legitimate law enforcement inquiry;
- Specificity: The request must be specific and limited in scope to the extent possible in light of the law enforcement purpose for which the information is requested; and
- Identifiable Information Necessary: De-identified information could not reasonably be used.
- Crime Victims: In response to a request by a law enforcement official, a hospital may disclose information to the official about a patient who may have been the victim of a crime, only if the patient agrees to the disclosure. Such agreement should be documented by the EP. If the patient is incapacitated or some other emergency circumstance prevents the hospital from obtaining the individual’s consent, the hospital may disclose information to the law enforcement official only if all of the following requirements are met:
- Not to be Used Against Victim. The law enforcement official represents that such information is needed to determine whether a violation of law by a person other than the victim occurred and such information is not intended to be used against the patient/victim.
- Necessary for Immediate Enforcement Activity. The law enforcement official represents that immediate law enforcement activity depends upon the disclosure of information and such law enforcement activity would be materially and adversely affected by waiting until the individual is able to agree to the release of information.
- Best Interests of Individual. The hospital, in its exercise of professional judgment, believes that the release of information to the law enforcement official is in the best interests of the individual.
- Video Recording: Officers using body-worn cameras should avoid or minimize active recording in patient care areas outside of direct interactions with the specific individual under investigation.
- Consent: In the unique case where an arrestee or incarcerated patient voluntarily gives consent to access their PHI, the EP should document that consent was freely obtained and ensure that it was provided in good faith and is non-coercively on the part of law enforcement personnel.
- Disclosures Related to Patients in Custody: A hospital may disclose to a correctional institution or a law enforcement official having lawful custody of an incarcerated person information about such incarcerated person if the institution or official represents that such information is necessary for any of the following:
- The provision of health care to such individual;
- The health and safety of such individual, other incarcerated persons, officers, employees or others at the institution or involved in transport of the individual;
- Law enforcement on the premises of the correctional institution; or
- The administration and maintenance of the safety, security, and good order of the correctional institution.
- Permissible Hospital-Initiated Disclosure: The HIPAA privacy rule permits hospitals to make disclosures of patient information for reporting purposes that are required by law, without obtaining patient authorization. Examples include:
- Child or elder abuse/neglect
- Certain types of wounds/injuries
- Death caused by criminal conduct
- Criminal conduct on hospital premises
- Criminal conduct offsite if hospital is providing emergency services
- To avert a serious threat to health or safety, such as a prisoner escapee, or in the case of an individual admitting to participation in a violent crime that the hospital reasonably believes may have caused serious physical harm to the victim.
Existing ACEP Policies:
Law Enforcement Information Gathering in the Emergency Department. Revised June, 2023.
Existing AMA Policies:
AMA Policy D-160.919: Increased Use of Body-Worn Cameras by Law Enforcement Officers (2019)
AMA Code of Medical Ethics 9.7.4: Physician Participation in Interrogation (2017)
References:
Chao S, Weber W, Iserson KV, et al. Best practice guidelines for evaluating patients in custody in the emergency department. JACEP Open. 2024; 5:e13143. https://doi.org/10.1002/emp2.13143
Simon JR, Derse AR, Marco CA, Allen NG, Baker EF. Law enforcement information gathering in the emergency department: Legal and ethical background and practical approaches. JACEP Open. 2023; 4:e12914. https://doi.org/10.1002/emp2.12914
Song JS. Policing the emergency room. 134 Harv. L. Rev. 2646 2021. https://harvardlawreview.org/print/vol-134/policing-the-emergency-room/
Georgetown University Health Justice Alliance. Police in the Emergency Department: A medical provider toolkit for protecting patient privacy. 2021 https://www.law.georgetown.edu/health-justice-alliance/wp-content/uploads/sites/16/2021/05/Police-in-the-ED-Medical-Provider-Toolkit.pdf
Stakeholders:
- Emergency Department leadership
- Hospital leadership (including legal counsel if available)
- Hospital Security
- Local law enforcement agencies that frequently visit the Emergency Department
- Local EMS agencies
