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Q&A: The hospital, the law, and the patient with Lisa Terry, CHPA, CPP

Vice President of Healthcare Consulting at U.S. Security Associates, Inc. and author of HCPro's Active Shooter Response Toolkit for Healthcare Workers. She spoke with PSMJ about police/provider interactions and the rights of patients under arrest.

Published in the Patient Safety Monitor Journal December 2017 (HCPRO.COM) - Reprinted with Permission

Cooperation between law enforcement and healthcare organizations

Controversy flared this fall in Salt Lake City after police body camera footage of the July 26 arrest of University Hospital nurse Alex Wubbels went viral. Wubbels had refused a police request to draw blood from a patient, citing hospital policy. Salt Lake City police detective Jeff Payne responded by shouting at Wubbels and handcuffing and arresting her on suspicion of obstruction of justice.

Wubbels was released after 20 minutes, according to The Salt Lake Tribune, and returned to the burn unit approximately 10 days later. Payne was later fired over the arrest, and his watch commander, Lt. James Tracey, was demoted to the rank of officer.

The University Hospital in Salt Lake City announced in August that police will no longer have contact with nurses, but rather deal with hospital administrators instead. In addition, law enforcement officials will no longer be allowed to enter the emergency room, burn unit, or other patient areas.

The Utah case was an example of everything that could go wrong in a law enforcement/healthcare interaction. However, these two groups often have to work closely together. And if a patient comes in who is under arrest, providers need to know the extent and constraints of the law.

The following is a Q&A with Lisa Terry, CHPA, CPP, Vice President of Healthcare Consulting at U.S. Security Associates, Inc. and author of HCPro's Active Shooter Response Toolkit for Healthcare Workers. She spoke with PSMJ about police/provider interactions and the rights of patients under arrest.

Q: How often do hospitals have to work with the police? How closely do these institutions work together?

Terry: Generally, they work in the emergency department very often. Level I and II trauma centers generally have a police officer there 24/7 in response to injuries sustained in vehicular collisions, fights, or other instances where individuals are injured in a public setting.

Law enforcement also bring individuals seeking behavioral health/mental health assistance to the ED in an effort to obtain medical treatment for them.

Q: When it comes to interacting with the police, should that be done by a specific person (e.g., a hospital liaison officer)? Or should all staff be trained for it?

Terry: In my experience, in order to comply with HIPAA [the Health Insurance Portability and Accountability Act] and the respective state laws, hospitals should have written policies and procedures which detail how and when information is released to external law enforcement agencies. I've found these policies to be most successful when they are written in concert with the hospital legal team and the local law enforcement legal teams.

The policy/procedure should [have] a specific position 24/7 to serve as that contact for all external law enforcement agencies. Typically, that designated individual is a leader from the hospital security department, a clinical house supervisor, etc. All hospital staff should have a general working knowledge of HIPAA, but the policy could perhaps designate your "superusers."

And even superusers should have quick reference guides due to the fact that HIPAA and state laws regarding patient health information are very lengthy and very specific; a lot of legalese. A quick reference guide is very necessary to quickly look, review, and determine whether information may be released.

Q: How does being placed under arrest affect a patient's rights? What if the patient isn't under arrest but is in police custody?

Terry: A patient's freedom of movement is the most obvious right that is affected when he or she is under arrest. The patient may not be able to refuse certain treatments based on the situation (if he or she is contagious, etc.).

In many states, the patient may still have certain rights as far as making sure their privacy is maintained. Generally, most hospitals have a policy in place from a safety standpoint for all concerned to cloak (protect) the custodial/forensic patient's information from being public. A hospital is a place where the security of the custodial/forensic patient is vulnerable. It's obviously not as secure as a prison.

Most custodial/forensic patients originate from the Department of Corrections (prisoners who have already been adjudicated) or from state/local law enforcement (individuals under arrest but not adjudicated). Regard- less of the type of custodial/forensic patient, most hospitals require that the custodian remain with the patient at all times and that the patient is restrained with a forensic restraint (law enforcement) at all times.

The only exception to this requirement would be due to a medical necessity or procedure for the custodian to remove the restraint. At that time, a determination would be made (for safety) if a medical restraint (chemical, etc.) should be utilized to ensure that the patient remains secure.

Q: To be clear, by chemical restraint, you mean a sedative?

Terry: Perhaps. This is a decision that is made by the medical provider in concert with the forensic custodian and is a medical or forensic security necessity.

Q: So when a patient is put under arrest, does that automatically mean the police get access to that person's medical information?

Terry: A law enforcement officer, unless they have a subpoena or court order in hand, does not have any right to have medical information on that individual they have under arrest.

Most states do allow the custodians from the Department of Corrections (prisons) to take that medical information with them. They are held to a different standard.

Q: What happens if a hospital policy is more stringent than the law? For example, if hospital policy prohibits sharing lab results without permission, but Iowa law doesn't specifically prohibit sharing that information, is a provider within their right to say "no" if law enforcement asks for it?

Terry: The hospital certainly has a right to develop a policy more stringent than federal or state law. How- ever, they will probably be sued.

If we go back to the Utah situation, the remedy of arresting the person who's saying "this is what we've agreed to" is probably not in the best interest of the local jurisdiction or the hospital. Unless it's absolutely an emergent public safety issue where life is at stake or critical evidence could be lost, it is rarely productive for a representative of an organization (a hospital in this situation) to be arrested on the spot on behalf of that organization for not complying with a police officer's orders.

In my opinion, in this particular situation there was sufficient time for leaders from each respective organization to have been called in (senior vice president at the hospital, a police captain or major from the police department) and reach a reasonable agreement that both agencies could live with.

Anyone can do what they want to do, but the bottom line is that state law will prevail at some point.

Q: What are common mistakes made during police/hospital interactions, and how can they be prevented?

Terry: The most important tool we all have is communication. How we choose to use it can determine the outcome of our interactions.

I am a huge proponent of Verbal Judo. I believe that if more individuals practiced it, more peaceful solutions would be reached. Verbal Judo is something that's taught to law enforcement and other first responders. It speaks to the five universal truths of human interaction:

  1. All people want to be treated with dignity and respect
  2. All people want to be asked rather than told something
  3. All people want to know why they are being asked to do something
  4. All people want to be given options rather than threats
  5. All people want a second chance when they make a mistake

As I watched that [Utah] video over and over again, I felt that if both sides had been able to utilize those five universal truths, it would have absolutely ended well.

Q: Walk me through a perfect police inter- action at a hospital. The police arrive with an injured person they've just arrested. What should happen next?

Terry: If your example includes the fact that the officer wants to determine if the injured arrestee is under the influence of an impairing substance [like in the Utah case], the perfect interaction would be that the police officer had already sent someone to the magistrate's office to obtain a court order/search warrant while he and the arrestee are in route to the hospital.

At the same time [the police] are checking in, the officer tells the nurse or registrar, "I've got an individual en route to the magistrate's office to obtain the court order requesting that blood be drawn for evidence and sent to the state lab for processing in this case." And this interaction occurs more often than not.

Q: What are best resources on treating arrest- ed patients and interacting with the police?

Terry: The IAHSS [International Association for Healthcare Security and Safety] has industry guide- lines to assist you in developing your organization policy for releasing patient health information.

I would suggest that the hospital consider hosting a meeting between the hospital legal counsel, the county law enforcement legal counsel, the city legal counsel, and the appropriate law enforcement and hospital security leaders to discuss any/all issues surrounding the release of patient health information. This same group should have input in developing a quick reference guide that is available for all to utilize. Thus, all entities have buy-in with the process.

Q: Any additional comments on the Utah nurse situation?

Terry: I just think it was the perfect storm. I really wish that there had been some face-to-face between individuals far outranking those two individuals on the video. I think it would have been wonderful if a hospital administrator and a police administrator had been able to come face-to-face out of view and talk through this situation.

I think they [law enforcement and healthcare] both depend on each other every single day, and I think public safety for everyone depends on those entities and other first responders working together seamlessly as much as possible and not at odds.

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