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Ethics in Action “A Patient Who Cannot Speak Freely Cannot Be Treated Appropriately”
By Jeremy Simon, MD The Case
One evening, police officers bring into the emergency department (ED) a 32-year-old male whom they’ve placed under arrest. According to triage, the prisoner himself has no complaints, but the police officers say that when they pulled him over, they saw him quickly put something in his mouth which they believe he swallowed. They are concerned that the “something” may have been drugs.
After an initial evaluation, the physician assistant (PA) reports that the patient denies having swallowed anything, but the police repeat the observation they initially reported to triage. On exam, the patient has normal vitals, is in no apparent distress, and has no abnormal findings. The PA and attending agree that the case may be difficult for two reasons. First because the police have no apparent motive to report that the patient swallowed something and if the police are believed to be telling the truth, then the report is presumptively reliable. Therefore, since the patient does not provide any details as to what he swallowed (in terms of both substance and quantity), the medical team feel obligated to admit the patient for prolonged observation until they are comfortable that any swallowed drugs have been passed or safely absorbed through the gastrointestinal tract. The second reason the case may prove difficult is that the police may ask that medical staff hand over any
drugs passed that are passed to use as evidence against the prisoner/patient; this is something they do not feel comfortable with.
Before proceeding, the attending asks where the police were located during the interview with the patient. The PA responds that they were seated in a chair at the foot of the patient’s bed. The attending suggests that the PA ask the officers to step out of earshot and then reinterview the patient. When the PA does this, the patient opens up and confesses that he indeed put some drugs in his mouth, but that it was less than a half-dose (for him) of heroin in an open packet, and that he made sure it was all absorbed in his mouth.
With this new information, and comfortable that any potential adverse effects would already have manifested, the attending and PA agree that the patient can be discharged immediately.
The Conclusion
This case raises, at least potentially, several ethical issues regarding the care of patients in police custody. First, although the question was never raised with the patient, it is easy to imagine a patient in this circumstance becoming upset at the possibility of being admitted. He would know that there was nothing wrong with him and would want to move through the process of being arraigned and possibly released as soon as possible. Or he might simply refuse admission, as frequently occurs even with patients who aren’t under arrest. Can a prisoner sign out against medical advice (AMA)? In many jurisdictions police will not remove a patient from the ED if they are leaving AMA because the police are not willing and/or able to take responsibility for possible future decompensation. Because the patient in this case is a prisoner, he may indeed be prevented from leaving the hospital, as prisoners do not have the right to go where they want. Therefore, if the police are unwilling or unable to remove the patient from the ED, the only alternative may be to admit him. However, it is important to remember that although the patient cannot leave AMA, he or she also cannot be compelled to accept treatment; thus, even though the patient cannot leave AMA, if he has capacity, he can refuse any testing, intervention, or medical treatment.
The second ethical issue this case raises is centers around the possibility of possession of evidence or contraband. May a health care worker turn over substances retrieved from a patient (or a bed pan) to the police, with the knowledge that it might used as evidence against the patient? The answer is certainly, preferably no. However, whether a health care worker can do so without putting themselves in legal jeopardy, or at least at risk of being arrested, is likely case-specific. One can imagine the police arresting for possession of narcotics a physician who refuses to turn over the drugs. Given the complexity of the issue, as well as the risk to the provider, hospital risk management should become involved in a case such as this early on. Hospital security might also be called upon to hold onto the drug material while a resolution is worked out.
But it is the final point that is most valuable, because it is relevant to all encounters with patients in custody, and not just those that involve refusal of care or a specific question of dealing with contraband. All patients have a right to privacy, but a prisoner, whose words can be used to directly harm him or her, has an even greater need for it. As the case above illustrates, protecting prisoners’ privacy protects them not only from legal jeopardy, but from medical harm as well. A patient who cannot speak freely cannot be treated appropriately. Police officers have no right to hear discussions that occur between a patient and his or her medical caregiver. It is highly unlikely to be necessary for police be within earshot to perform their job of maintaining custody of the prisoner. Although in some case a bit of creativity, or relocation, may be necessary, police should never be able to hear the medical interview. The main exceptions to this rule are in situations where the safety of either patient or staff is involved. If relocating the police out of earshot would unacceptably delay life- or limb- threatening care, care should proceed without delay, especially if it is not certain that lack of privacy would in fact harm the patient. At the other extreme, caregivers are not required to put themselves in harm’s way to maintain patient privacy. Although most prisoners pose no heightened risk of harming others, some prisoners, especially those with a documented history of violence, may present a true risk if officers are not close at hand. If a caregiver has a reasonable fear for their safety, police may need to be nearby, even during an interview.
Caring for patients in custody raises many challenges. Most of these can be met by remembering that these are patients like any other, and extremely vulnerable ones at that.
ABOUT THE AUTHOR
Dr. Simon is a professor of emergency medicine at the Columbia University Medical Center, in addition to serving as faculty associate at the Columbia Center for Clinical Medical Ethics. Dr. Simon is also a senior research associate for the department of philosophy at the University of Johannesburg
