This story was first published on Wednesday, September 4th, 2019 in Emergency Physicians Monthly
Priorities can be complicated when an officer asks for body searches of suspects.
Dear Director,
We’ve started to have patients brought in custody by the police with a search warrant requesting a body cavity search. I feel like we’re always reinventing the wheel about what to do when this happens. Can you advise us on how to proceed?
Police are commonplace in EDs and, over time, many friendships and relationships have taken place between ED staff and the police. The police are often the ones to respond when we have a violent patient. There is no doubt that we rely on them and respect them for all they do.
Sometimes our friendships with them or our desire to help them may push us to do the wrong things and forget that our obligation is to the patient. Other times, we may be told that failing to comply could result in us getting arrested. Probably all of us saw the 2017 video in 2017 of the Utah nurse who was placed in handcuffs after refusing to let police draw blood on her patient without a warrant. Therefore, it’s critical to understand our responsibilities when faced with this situation.
As clinicians, we need to understand if we’re required to perform a search and what to do if the patient refuses. Sometimes I think docs refuse to perform the exam because they think the whole visit is a waste of ER space. Other times, I think docs just are afraid of the legal process and don’t want to be involved, but most commonly, they just don’t think the exam is clinically indicated.
From a safety perspective, if a patient is a body packer, they definitely are at risk for a bad medical outcome. On the consent side, although a warrant may exist for the search, we’ve been told over and over again, that docs have been charged with battery for doing unwanted procedures to patients with mental capacity who are refusing the test (restraints is still a hot topic with Joint Commission and CMS). This topic is definitely confusing from a doc perspective — trying to balance our oath and patient responsibilities with the court’s request.
Plan Ahead
For medicolegal issues, start by contacting your hospital risk manager. Regardless of whether that person is a lawyer, the risk manager should be your first contact for potential legal issues in the emergency department when a patient in custody presents to the ED. The risk manager may also serve as the liaison to a local judge or may be the one tasked with building an agreement between the hospital and police about how warrants from routine blood draws for blood alcohol levels to body cavity searches may be handled.
The ultimate outcome from working with your risk manager is to design an algorithm that your docs can follow that will allow providers to take care of the patient, document properly, and have an appropriate discussion with the police. Included in this algorithm should also be a real time notification of the risk manager.
The Law and Cases in the News
Just to reiterate, I am not a lawyer, but I have worked with my hospital attorney enough on this subject to have a basic understanding of the law. Warrants authorize law enforcement officers to search for and seize evidence. They are not binding on members of the public, so unless specifically named in a warrant signed by a judge, the physician has no duty when served a search warrant. Even if specifically named, they can get an attorney to try to quash the warrant before complying.
Similar to a police officer trying to force you to search through your neighbor’s house or crack into your neighbor’s safe. So when a patient is brought to the ED for a search, the warrant typically authorizes an agent (you as the ED physician) to complete a search. Since we are not officers of the court or government agents, being authorized does not mandate or require you to complete the search. This is important as the police cannot present a warrant that requests an NG lavage of a patient and expect you to automatically comply. The case of the nurse in Utah was different as the police officer did not have a warrant and wanted to do their own blood draw on a patient. Although she was taken into custody, she was later released, and news reports state the detective was later fired and a settlement was made in the case.
Nonetheless, all of us may be intimidated by a police officer mandating that we comply with a warrant. In a 2016 article by Pilcher, he states he was unable to find any cases of a “lawsuit or other sanctions against a physician refusing to perform a body cavity search on a non-consenting patient when presented with a valid search warrant.” Some states have addressed our role specifically (this is where your risk manager can really help you identify your role in your particular state).
In Washington State, the word “authorized” is used and it does not “compel” a physician to perform a search. While in Maine, the wording is “Nothing in this subsection requires a person authorized to conduct body cavity searches to conduct a body cavity search pursuant to a search warrant.” In Tennessee, a physician complying with a search warrant is protected from liability in most cases (exceptions related to negligence, gross negligence, unlawful conduct, etc…). This is very reassuring, but most states, including my own, the Commonwealth of Virginia, have not specifically addressed the role of the physician.
If a physician chooses to assist law enforcement in executing a search warrant, caution should be used if a patient refuses procedures to obtain the evidence. Interestingly enough, the US Supreme Court addressed this from an evidence collection point of view in Rochin vs. California decision in 1952. In that case, police brought a patient to an ED where the physician inserted a tube into the stomach and gave a medicine to induce vomiting in an effort to retrieve pills.
Although the pills helped support the patient’s conviction, the Supreme Court reversed it and said the search violated the patient’s due process and the behavior “shocks the conscience.” More recently, go ahead and Google “forced colonoscopy” and you can see the $1.6 million impact of aggressively searching a patient when they did not consent. I would have significant concerns about trying to conduct a search on a patient who is refusing, particularly if a complication arose from the procedure—rupture of the esophagus from an NG tube or even rupture of a baggie with release of drugs leading to a fatal overdose from a rectal exam with an attempt to remove palpable contents.
Our Responsibility
As physicians, our duty is to the patient. We must use our professional medical judgement to determine the appropriateness of a test or procedure. An unresponsive patient or one with a life-threatening presentation, whether suspected of body packing or not, requires a full evaluation and the consent is implied (people who have a life-threatening condition would typically give consent for us to save their life).
On the other hand, if the patient is stable and able to make their own decisions, they are capable of refusing treatment. These patients are typically required to have a medical screening exam under EMTALA. As part of this exam, getting a thorough history may help you discuss the risks of non-treatment with the patient and the risks and benefits of a body cavity search should be explained. If that’s the case, we aren’t medically or legally responsible for performing the body cavity search. And like any other patient with a procedure, both consent or refusal should be witnessed and documented.
The risks should be discussed and documented. Patients should be made aware that there are consequences to carrying drugs internally and that death is possible. They should also be made aware that the recommended treatment is to remove any package. Of note, however, while the patient may be able to refuse a body cavity search by us, law enforcement may be able to bring the patient to a jail clinic where they would not be able to refuse a search. Patients typically cannot refuse less invasive testing like blood alcohol levels if the warrant requests it. Although, I’m sure some patients do, I have no doubt that the legal system has a way of handling patients who refuse blood draws.
My Plan
I start by talking to the patient about why they’re in the ED and what the next steps might include. I’m sometimes surprised that patients consent to a search. Other times they refuse, and I discuss getting X-rays. Most patients are agreeable at this point and since these are non-invasive tests, the warrant probably can force the patient to comply (discuss with your risk manager). I typically get X-rays on all these patients as a first step. Of course, realistically getting an X-ray on a patient who won’t hold still isn’t easy or worthwhile. Once the X-rays are done, I’ll discuss the results with the patient and the officer. If the patient appears to have a foreign body, I’ll tell them that for their safety, it’s best that it comes out.
If neither the radiologist nor I see anything on the X-ray, I’ll let the police know that as well. I’ve had officers wait in the ED with the patient for them to have a bowel movement and I’ve watched them take the patient to jail. Waiting doesn’t help our crowded ED and isn’t my preferred choice.
Our obligation is to take care of the patient, but ultimately, I’m also interested in reaching an end point with the patient and the police and being able to discharge the patient. I am aware of at least one case where the patient refused the exam, but ultimately became unresponsive and the physician had to intervene to save his life. Drugs were recovered by the police and all of this was appropriately documented. Separately, I’ve also notified my risk manager from the time the patient arrived and discussed the case with them as the case progressed.
Conclusion
Handling a search warrant in the ED is an infrequent, but high-risk encounter. As a medical director, the best way to reduce the risk and help your team is to plan ahead with your risk manager so you can develop a plan that everyone on your team can understand about the state laws and any local agreements. EMTALA does apply to these patients and the risk of a true medical emergency is possible.
Warrants can generally compel patients to undergo non-invasive testing, and as physicians, we should use our professional judgement to see if more invasive searches should be carried out. At least in our role of emergency physician, we should not perform a body cavity search if the patient refuses. But we should review and document the risks with the patient, have our risk managers involved from the time the patient arrives, and be prepared to discuss our role with the police.
