Are you specifically named in the warrant as the physician performing the search? A warrant that doesn’t name a specific physician or other health care professional to perform the search is probably not enforceable. A judge would be trying to assert jurisdiction over a third party who hasn’t been accused of a crime.
Explore This IssueACEP Now: Vol 35 – No 10 – October 2016
A physician also cannot be made an agent of the state for the purposes of law enforcement; if an activity being performed isn’t advancing the health care of a patient, then the physician has no business performing that activity. In other words, a judge can’t just rule that I have to shovel the courthouse steps. Such an order would be unenforceable. A recent example of this “agency rule” is the request by the federal government for Apple to de-encrypt a terrorist’s iPhone.
Additionally, a physician not specifically appointed by the court to perform such a search isn’t obliged to follow a warrant for a body search. If a patient is stable, is capable of making their own decisions, and doesn’t consent, we aren’t medically or legally obliged to comply with a warrant. It would be reasonable to redirect law enforcement to an appropriate jail clinic where a physician with legal jurisdiction can perform the exam.6
Liability is an issue when conducting a procedure mandated by a search warrant. It might be argued that even a patient who consented had been coerced into consenting (eg, if handcuffed to a gurney with two police officers standing by). If doctors perform medically unnecessary procedures, even with a warrant, they can be sued for battery or malpractice if the patient suffers an injury and face licensure action by the state medical board.7 (A better course is to advise the patient of potential risks such as perforation, drug absorption, etc. and offer the exam and/or X-ray. An honest conversation and/or a positive X-ray might cause a patient to reconsider.)
A physician refusing to do such a body cavity search may do so with at least the implicit approval of the American Medical Association‘s Code of Ethics—namely principles I, III, IV, VI, VII, and VIII, as well as the preamble, which states, “As a member of this profession, a physician must recognize responsibility to patients first and foremost, as well as to society, to other health professionals, and to self.”8 One outspoken MD/JD recommended that the warrant be copied and submitted to the judge’s county judicial review board. “And if that doesn’t work, put it up on social media. Overlawyered.com has a far reach and would create quite a buzz about it.”
Guidelines for Physicians
If you’re faced with a similar situation, it’s best to have a protocol in place. Below are some steps you should take prior to making any decisions when examining a patient brought in by police:
- Rule out a medical emergency or life-threatening condition by doing a medical screening exam to fulfill the requirements of the EMTALA mandate.
- Talk to the patient and gather as much information as possible. Is the patient likely to be “packing” a weapon or contraband?
- Determine whether the patient has decision-making capacity. Are drugs or alcohol affecting their mental capacity?
- Try to obtain consent by explaining the risk of drug toxicity if you suspect drugs are involved. Several incidents of death from such activity have been recorded.9 Offer noninvasive options such as ultrasound or X-ray. If consent is granted, perform the exam and/or tests.
- If consent for the search is not given, do not perform the exam. Explain to the officers that performing the exam may require chemical or physical restraints with risk of aspiration and/or injury and might place the patient at increased risk of rupture of the contents with harm to the patient or staff.
- Notify the hospital administrator in charge (or on call) and/or hospital legal counsel for advice.
- Document the entire encounter in detail, with emphasis placed on the medical rationale for not doing the search. Make sure to have the encounter write-up witnessed.