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.