A 32-year-old man presents in police custody for bizarre behavior. He was the driver of a vehicle which struck a telephone pole. He was reportedly singing and dancing naked in the street following the motor vehicle collision. The police would like to ask him some questions about what happened. Should the patient talk with the police? What is your role as the emergency physician?

Introduction

Law enforcement officers frequently accompany emergency department (ED) trauma patients or patients who are under arrest or require assistance. At times, law enforcement officers may request assistance from ED staff to gather information or evidence. Ethical dilemmas may arise when balancing the physician’s moral duty to act in their patients’ interests and protect patient confidentiality with the physician’s legal obligations.¹ ACEP’s Policy Statement, “Law Enforcement Information Gathering in the Emergency Department,” provides guidance for these situations. The policy states that physicians can release patient information to law enforcement in three situations:

1. The patient consents to the release of the information
2. The law mandates that physicians report such information
3. Law enforcement officers provide a subpoena or court order²

Confidentiality

Protecting patient confidentiality is an important duty.³ One of the clauses of the Hippocratic Oath states: “Whatever I see or hear in the lives of my patients, whether in connection with my professional practice or not, which ought not to be spoken of outside, I will keep secret, as considering all such things to be private.”⁴ This obligation to protect patient privacy is also iterated in federal and state laws, including the Health Insurance Portability and Accountability Act of 1996 (HIPAA).⁵ Any identifiable information is considered PHI (Protected Health Information). Specific elements considered PHI include:

• Names
• Dates, except year
• Telephone numbers
• Geographic data
• Fax numbers
• Social Security numbers
• Email addresses
• Medical record numbers
• Account numbers
• Health plan beneficiary numbers
• Certificate/license numbers
• Vehicle identifiers and serial numbers including license plates
• Web URLs
• Device identifiers and serial numbers
• Internet protocol addresses
• Full face photos and comparable images
• Biometric identifiers (i.e., retinal scan, fingerprints)
• Any unique identifying number or code

There are important exceptions to confidentiality, to protect the patient and/or the public.⁶ All states have mandatory reporting laws that establish a duty to report certain types of abuse or mistreatment to state and local authorities. Report of other conditions of public health concern also may be required (for example, tuberculosis, gonorrhea, etc.). Most states also have requirements to report specific injuries, such as gunshot wounds and knife wounds.

Evidence Collection

In some cases, the law or subpoena may direct law enforcement to ask the physician to physically obtain evidence from the patient, such as via blood draw or invasive examination. If a procedure or examination is not medically indicated, and the patient does not consent, it is not appropriate for it to be performed against the patient’s will in the ED. If a law enforcement request is in conflict with the patient’s wishes, the institution’s legal counsel should be sought. Further, emergency physicians may conscientiously refuse to carry out or comply with legal orders that violate the rights or jeopardize the welfare of their patients, recognizing that there may be legal repercussions for these decisions.

Conclusion

Emergency physicians may encounter requests for law enforcement information gathering in the ED. Patient confidentiality and patient autonomy should be prioritized.

In this case, the patient’s decisional capacity should be examined. The patient who possesses appropriate decisional capacity has the right to refuse to speak with the police. If the patient lacks decisional capacity, it is appropriate for the emergency physician to advocate for the patient by requesting information gathering at an appropriate time when the patient can consent.

ACEP Policy

Law Enforcement Information Gathering in the Emergency Department

Revised June 2017 and April 2010 and originally approved September 2003

The American College of Emergency Physicians (ACEP) believes that emergency physicians have a fundamental professional responsibility to protect the confidentiality of their patients’ personal health information. Federal and state laws, including the federal health information privacy regulations implemented under the Health Insurance Portability and Accountability Act (HIPAA), articulate and reinforce this responsibility.

ACEP recognizes that law enforcement officials perform valuable functions in the emergency department (ED), and that one of these functions is investigation of criminal acts. As part of these investigations, law enforcement officials may request personal health information gathered in the ED. Emergency physicians may honor these requests only under the following circumstances:

1. The patient consents to release of the requested personal health information to law enforcement officers, or
2. Applicable laws or regulations mandate the reporting of the requested personal health information to law enforcement officers, or
3. Law enforcement officers produce a subpoena or other court order requiring release of the requested information to them.

Law enforcement officers may, in some situations, present search warrants or other court orders as grounds for requesting or directing that emergency physicians perform physical examinations, collect physical evidence, perform diagnostic tests, or conduct body cavity searches on ED patients who refuse these interventions. These situations present emergency physicians with difficult conflicts between obligations to respect patients’ refusals of treatment, to promote trust in the therapeutic relationship, and to protect patients from harm, on the one hand, and obligations to obey legal authorities and to carry out socially imposed mandates to promote public health and public safety, on the other hand. ACEP believes that emergency physicians must make considered judgments regarding which set of obligations is more compelling in these specific situations. Emergency physicians may conscientiously refuse to carry out or comply with legal orders that violate the rights or jeopardize the welfare of their patients, recognizing that there may be legal repercussions for these decisions. These repercussions may include contempt of court or malpractice claims.

In their interactions with ED patients, law enforcement officers may use video or audio recording devices. These recordings may include interaction or communication between ED patients and physicians or other ED staff only with the consent of all parties.

Law enforcement information gathering activities in the ED should not interfere with essential patient care.

Dr. Marco is associate editor of ACEP Now.

Dr. Baker is professor of medical ethics at the University of Toledo College of Medicine and Life Sciences, Toledo, Ohio.

References

1. Simon JR, Derse AR, Marco CA, Allen N, Baker E. Law enforcement gathering in the emergency department: Legal and ethical background and practical approaches. J Amer Coll Emerg Phys – Open. 2023;4(2).
2. American College of Emergency Physicians. Law Enforcement Information Gathering in the Emergency Department. Dallas, Texas: ACEP, 2017. Available at https://www.acep.org/globalassets/new-pdfs/policy-statements/law.enforcement.information.gathering.in.ed.pdf. Accessed March 13, 2023.
3. Baker EF, Moskop JC, Geiderman JM, Iserson KV, Marco CA, Derse AR. Law enforcement and emergency medicine: an ethical analysis. Ann Emerg Med. 2016;68:599-607.
4. Hippocratic Oath. Available at: https://www.nlm.nih.gov/hmd/greek/greek_oath.html. Accessed 12/18/2022.
5. Office of the Assistant Secretary for Planning and Evaluation. Health insurance portability and accountability act of 1996. HHS website. https://aspe.hhs.gov/report/health-insurance-portability-and-accountability-act-1996/. Published August 20, 1996. Accessed March 13, 2023.
6. Geiderman J, Marco CA. Mandatory and permissive reporting laws: obligations, challenges, moral dilemmas and opportunities. JACEP Open. 2020;1:38-45.