Knowing Our Patients' Rights

It is no surprise that caring for patients in the ED requires collaboration between several key team players.

Emergency physicians work with other healthcare providers, clinical social workers, case managers, and law enforcement officers (LEOs) to provide the best care for all patients. In the setting of emergency care and a criminal investigation, time motivates healthcare providers and LEOs, which can result in conflicts of interest when it comes to access to patients in the ED.¹ The Interdisciplinary Education Committee is a committee within the Emergency Medicine Interest Group (EMIG) at the University of California, Irvine School of Medicine (UCISOM). The goal of EMIG is to perpetuate interest in the field of EM through various educational meetings, workshops, and career advising. The Interdisciplinary Education Committee was created and is led by medical students in an effort to highlight some of the key team players in the ED. Additionally, this committee was created to share resources and best practices when caring for vulnerable populations, including uninsured and/or undocumented patients.

The group hosted a presentation titled Knowing our Patients’ Rights, featuring 2 emergency physicians, a psychiatrist from Martin Luther King Jr. (MLK) Community Hospital in Los Angeles County, a UCI police officer, and an immigration attorney from the Public Law Center. The goal was for attendees to learn about legal and ethical information when caring for patients in the presence of LEOs, the role of LEOs in the ED, important information to know when faced with an Immigration and Customs Enforcement (ICE) agent, and local resources available for undocumented patients.

The discussion points and questions answered during the panel session were inspired from three controversial cases that either attracted attention at the regional or national level or were personally witnessed by the panelists. Here we also highlight relevant information that was shared during two episodes on Emergency Medicine Reviews and Perspectives (EM:RAP). Note that cases may vary; the information provided is not official legal advice but rather as a way to start and continue a discussion within medical education and residency training on these pressing topics. Please contact your hospital’s risk management office or legal counsel for official advice.

CASE 1: DRIVING UNDER THE INFLUENCE (DUI) AND BLOOD DRAWS
A patient is taken to the University of Utah Hospital in Salt Lake City in 2017 after being injured in a head-on collision leaving the other driver dead.² The ED nurse was confronted by LEOs seeking a blood sample. She explained she was unable to grant their request under their hospital policy. This case attracted national attention after release of the police body camera footage showing the interaction between the officer and nurse leading to the nurse’s unlawful arrest.

Pre-hospital: How do LEOs assess intoxication?
In the context of DUI driving, officers will stop a driver for suspicion for something other than possible DUI, such as driving too fast, slow straddling or not reacting to a traffic light. Officers look for objective signs such as blood shot eyes, slurred speech, odor or staggering gait. A DUI sobriety test may follow and then the officer will determine if the individual will be placed under arrest or is safe to drive. The alcohol level can be assessed with a breath test or a blood draw. If the suspect does not consent to the test, then it gets complicated. The officer may explain that their license may be suspended given that in the state of California, when individuals get a driver’s license they give “implied consent” to a sobriety test. Officers can get a warrant within hours if the individual denies the test, however as we know, alcohol level diminishes as time progresses.

In Orange County, California, officers call a CFP (Certified Forensic Phlebotomist) who is responsible for drawing the blood to assess the blood alcohol level. This differs by county. Once a subject is a patient in the hospital, an officer calls upon a CFP and works with a nurse to facilitate the blood drawn. If an officer asks the nurse to draw blood (without the presence of a CFP) and the nurse collects the blood for them without knowing this policy, this blood can potentially be used in the future if there is a trial. In cases where a patient is unable to provide consent, such as during a trauma, and the blood has been drawn as part of the workup, the police department can subpoena later on to get hospital records, if needed, for a trial. Also, the concept of “chain of custody” must be taken into account. For example, if the nurse draws the blood but places it in her pocket or elsewhere for a few hours prior to giving it to police, this potentially breaks the chain of custody meaning that that can potentially be inadmissible in court because it is difficult to say if that blood is actually from the patient in question. Hence why it’s important to have official phlebotomists (to protect the chain of custody).

In hospital- LEOs are required to investigate criminal acts, however they are not required to abide by HIPAA (patient privacy law). Under what circumstances/policies should physicians share lab/exam findings with LEOs?
Under the Health Insurance Portability and Accountability Act (HIPAA), medical providers and facilities must follow strict rules about the health information that may be shared, how and with whom.¹ Sharing patient protected information with LEOs is a violation of HIPAA unless there is an exception, such as mandated reporting of domestic violence, providing information about a patient’s status during a trauma activation when a crime is under investigation or when the officer provides a warrant or court order from a judge. Other exceptions vary by state. As a reminder, a patient’s name, address and date of birth are protected by HIPAA. Therefore, it is not okay for LEOs to take patient stickers that contain protected patient information. Sometimes avoiding a HIPAA violation may be difficult and unpreventable, such as when a LEO must remain present because of safety concerns for the physician or other patients in the department.³ Some health care institutions have guidelines in place outlining that outline how to care for patients in the presence of LEO in the ED.

Some patients may refuse certain tests even though LEOs may present search warrants or court orders to continue an investigation, what kind of questions should physicians ask LEOs to decide how to act in these situations? What kind of information are physicians legally obligated to share with LEOs?
LEOs need a warrant to draw blood if the patient refuses the request to draw blood. A warrant can be obtained fairly quickly over the phone.⁴ However, it is important to note that a healthcare provider is not required to perform any procedures they believe are not medically indicated or if the patient refuses, even if the LEO presents a warrant. Consider contacting the hospital legal representative if this situation occurs. Hospitals usually have protocols in place for these situations. Providers should have extreme caution in making these decisions without consulting its hospital legal representative. Note that providers have been sued for bad patient outcomes after performing a procedure requested by a warrant that was not medically indicated.³ 

Decision-making capacity- Do intoxicated individuals have capacity?
The word capacity differs among law vs medical vs hospital policy. Medical capacity is based on four elements: 1) understanding of the risks, benefits and alternatives, 2) demonstrating appreciation of those benefits, risks and alternatives, 3) showing reasonings in making a decision and 4) communicating their choice. Any physician can determine if a patient has capacity.

A patient can be intoxicated and still have capacity including the capacity to leave against medical advice (AMA) or to refuse certain procedures. Just because a patient’s alcohol level is high does not mean that they do not have capacity. Some patients who have alcohol use disorder may “live” at a high number and may refuse tests or will leave AMA. It is important to assess these patients to make sure they are “clinically sober” so they can be discharged or leave AMA safely. Make sure that the patient can ambulate and tolerate oral intake and that they are not a danger to self or others at discharge. Lower alcohol levels may actually be dangerous for individuals who are chronic drinkers and consume large quantities on a daily basis, as they can withdraw and have dangerous outcomes.

In the context of law enforcement and driving under the influence, officers also determine capacity, for example, when asking for consent to draw blood or perform a breath test. According to the officer on this panel, when a person answers “yes”, nods their head or says “mhm,”it means the person can make that decision. However, when officers ask questions in other areas, this can be up for debate and can be questioned in court.

CASE 2: ATTEMPTED SUICIDE WHILE IN DETENTION
In the U.S. the number of individuals in ICE detention centers has increased dramatically from 7,474 in 1995 to 37,311 in 2020.⁵ Many detainees have histories of repeated physical and emotional trauma and the abuse experienced in detention can exacerbate their mental health illness. In fact, an analysis of detainee deaths discovered that suicide is one of the most common causes of death among detainees.⁶ Given this context, our panelists discussed treatment of a proposed detainee who is taken to the ED due to a suicide attempt while in detention.

Under what circumstances must doctors cooperate fully with ICE and when can doctors refuse to work with ICE?
A patient’s rights depend on the hospital’s internal procedures and even on how the physical space they are in is set up. For example, every commercial space has an entryway open to the general public. ICE does not require a warrant to enter that space to approach or to question individuals. To the extent to which ICE is in a space that is considered a public space, there is really very little protection for individuals and ICE’s ability to ask anybody questions is unfettered. It is up to the individual to exercise their right not to answer questions.

The question becomes more complicated in cases when an ICE officer wants to cross a physical barrier to go into a more private area. This is uncommon, but an officer usually asks whoever is guarding that private space for permission to enter. If a hospital does not have a policy to clarify what to do in this situation then it is possible for the “gatekeeper” to give permission for the ICE officer to enter and at least visualize the space and possibly also to question an individual.

From the medical standpoint, you are not morally or legally obliged to share any information directly with ICE. If an ICE officer or LEO presents a warrant, you can defer the request to the hospital’s legal counsel and they can guide you and help you decide how to proceed or which questions to ask or answer.

Disposition planning- What type of healthcare is available for immigration detainees at detention centers?
Primary care in Adelanto, the detention center nearest Orange County, or any other ICE-contracted facility is primarily, but not exclusively provided by nurse practitioners (NPs). These facilities also have contracts with physicians who make infrequent visits. If a detainee needs higher level of care, they are transferred to specific hospitals that have contracts with GEO Group, a real estate investment trust that invests in private prisons, immigration detention centers, and mental health facilities. 

What are the appropriate steps that physicians must take when discharging patients from the ED who need follow up care? Should physicians provide discharge instructions to the ICE officer or should materials be sealed?
Upon transfer or release from a detention center, ICE is required to give the individual a summary of their medical records, any medically necessary medications and referrals to community-based providers.⁷ ICE is also required to provide follow up care, including specialty care, for individuals who remain in detention after their hospital visit. Therefore, when discharging patients from the ED who need follow up care, provide a copy of the written discharge instructions to the patient (print a copy in their native language too, if possible). Remember to use an interpreter to verbally communicate all discharge instructions directly to the patient if they speak a language other than English and/or they are unable to read. It is a federal legal requirement, protected by Title VI of the 1964 Civil Rights Act that requires medical providers to make interpretation services available to patients with limited English proficiency.⁸ Also, similar to cases when a LEO is present, you are required to abide by HIPAA when caring for patients who are accompanied by an ICE detention officer. Therefore, kindly ask the ICE officer to step out of the room while communicating with and evaluating the patient.

Do immigration detainees have decision-making capacity?
The question of decision-making capacity typically comes up in cases or immigration proceedings to decide who should be deported. Legally, not everyone has a right to an immigration hearing, and who does depends on a lot of complex factors including the patient's past immigration history and how they are currently in ICE custody. There is a threshold of decision-making that an immigration judge must use to decide whether the patient has the mental capacity to understand what is happening during the proceedings. If the individual does not have an attorney and the judge decides that the patient does not have the capacity to participate meaningfully in their proceedings, then the judge may appoint counsel at no cost to the individual. This is one of the rare situations in which a detained individual will be provided counsel at no cost, but not categorically the only situation. Rarely, deportation proceedings may even be terminated if the immigration judge cannot get enough information to decide whether the individual should be deported.

In southern California, because of a lawsuit that was filed in the region, the Department of Homeland Security or ICE has an obligation to inform the immigration judge affirmatively if they have reason to believe that an individual suffers from a mental health illness. In the case of a patient who presents after a suicide attempt, for example, ICE is obliged to ask the hospital for medical records to present to the judge and this will actually help the detainee’s case.

What is the policy for contacting family members of those who are in ICE custody? According to the immigration attorney, she is not aware of any ICE policy on this topic, but can’t see why they would prohibit the hospital or clinic from contacting the family. According to UCI Health policy, any individual in law enforcement custody is not permitted to have visitors without prior approval by the LEO supervising the patient in custody. Phone calls are permitted after authorization by LEO.⁹ It is important to contact the Risk Management department at your hospital to learn about policies in place at your facility.

CASE 3: DE-ESCALATING POTENTIALLY VIOLENT PATIENTS
On October 6, 2020, a Los Angeles County sheriff deputy shot a patient who was allegedly swinging a metal device while being treated at Harbor-UCLA Medical Center.¹⁰ According to the hospital report, the patient became aggressive and a deputy who was guarding another patient’s room approached the situation to attempt to de-escalate the situation.

What emergency code is used at UCI to indicate that a potentially violent patient is in-house?
Code gray is used to indicate that a combative or violent individual is in-house while code silver alerts an individual with a weapon or a hostage situation is in-house. Any individual can activate these codes by pressing the panic button which can be found at a nurse’s station or by calling extension x6123. Simultaneously, if there is enough staff on hand, another health care provider on scene can call the dispatch line to talk to the public safety department directly and communicate details of the situation. It is important to be informed about your institution’s plan in place for whenever an individual with a weapon is present in-house.

What happens when the code is called and who is required to respond?
When these codes are activated, the call is directed to the operator and to the public safety supervisor, not to a police officer. The public safety supervisor will then send public safety officers and/or police officers to the scene who will collaborate with the clinicians to deal with the situation. The response is a team effort and if the situation allows, a discussion should take place among all of the team members to decide how to and who will respond. Typically, a public safety officer will respond first and the police officer will step in if deemed necessary, such as if the patient is violent. If the patient has a history of violence, the police officer may be the first one to step in. Immediate action to restrain the patient may be taken to keep everyone safe.

What are some strategies health care workers can use to de-escalate potentially violent patients without using physical force?
Several de-escalation models exist in the literature that can be used by healthcare providers including the Dix and Page model, the Turnbull et. al model and the Safewards Model.¹¹ Following are some recommendations shared by the panelists.

• Speak calmly to the patient and give them space. No one likes to be walled in or feel trapped. The WORST thing you can do is escalate yourself and expect a person who is agitated/violent to back down.
• Make sure that there are no objects that can be used as weapons in the room or on you.
• Ask all non-essential people present to leave the area. If a public safety officer or a police officer is present, ask them to stay back until needed.
• Consider the patient’s mental status before entering the room/area. If the patient is experiencing psychosis, verbal de-escalation will be insufficient given the patient is incapable of linear thought and action. You can offer these patients medications, however keep in mind that it may be difficult to get them to respond or calm down. Priority should be placed on their safety.
• If a patient is angry or upset about something and acting out, ask what happened and if there is anything you can do to help. Consider offering food, drinks, and oral medications as necessary. Sometimes if you tell a patient you can give them a tablet to help with their feelings, they may be more willing to take that instead of an injection.
• Remind the patient that your job as a physician is to be an advocate for them, to keep them safe and be well taken care of. If they can help you understand their needs, you can work on their behalf to provide what they need.
• If the patient is upset about their wait time, validate their feelings and remind them that the workup can take time and that you will update them as frequently as possible.
• As the situation calms, consider setting boundaries for the patient. Explain that name calling and physical violence are not acceptable in the hospital. Tell them that you are happy to continue treating them as long as they abide by those rules, but if it continues, then you will be forced to end their care and will have to discharge them. The discharge will be reluctant, but will have to be done for the safety of the other patients and hospital staff.

De-escalation training of LEOs in Orange County
Both public safety officers and police officers receive specific training on de-escalation and training is often integrated. However, there are different levels of training and public safety officers receive more advanced specialized training on how to deal with patients since their primary duty is patient care and to guard health care workers. Overall, the use of force to de-escalate patients has decreased at UCI Health thanks to progressive and better training championed by Lieutenant Frisbee. According to the 2019 UCI Police Annual Review, “over 99% of responses by the public safety team to address aggressive and violent subjects were successfully de-escalated by the public safety and clinical team through non-physical tactics”.¹² A total of 15,002 Total Public Safety incidents were filed, 3,936 involved assisting clinical staff to de-escalate a situation, with 44 of those requiring physical tactics by a public safety officer (personal communication, Sgt. Chris Bolano and Ltn. Anthony Frisbee, January 26, 2021).    

What are some ways to build trust between LEO, the public and health care providers?
It is important that LEOs build trust with health care providers and patients to provide adequate patient-centered care. Positive nonenforcement contact with the public has shown to be an effective strategy to enhance police trust and legitimacy.¹³ In 2019, UCI Police and Public Safety officers hosted several community engagement events for patients and health care providers.¹² These events included inviting members of the healthcare community to share a cup of coffee and snacks with LEOs, continuing an annual toy drive with UCI athletes to pass out toys to pediatric patients, and conducting a Self Defense & Safety Awareness Course for healthcare employees to learn about personal safety. 

Summary
It is essential to know patients’ rights and how to best advocate for them and yourself. Remember that LEOs are not obligated to comply with HIPAA, and it is the responsibility of the health care team to ensure HIPAA is not violated. Sometimes this may be unavoidable when there are safety concerns for the physician or other patients in the department that may require a LEO to remain present during the patient encounter. It is important to remember that healthcare workers are not obligated to perform any procedures they believe are not medically indicated or if the patient refuses, even if the LEO presents a warrant. If you are unfamiliar with specific policies at your institution regarding the presence of LEO, including ICE officers, contact the risk management office at your institution.

Take-home points

• Check your biases at the door and remember that your first priority as a medical professional is to provide patient care and to heal. Avoid making assumptions when entering a patient room where a LEO is present.
• If you feel a patient is being treated unfairly, do not approach the situation alone; seek help/input from the whomever is above you in the chain of command.
• Remember protocols when making a report. Learn about those protocols through your HR office or your clerkship director (in the case of medical students). Also know your hospital’s/program’s anonymous report line.
• Be human: always ask your patients for feedback. It’s a very valuable de-escalation tool and there is also evidence that it is helpful.¹⁴
• Continue to learn about the interdisciplinary interactions of law and medicine and about how you can enter that space and understand it better so that you can better understand the lives of your patients.

ACKNOWLEDGEMENTS
The authors would like to thank the panelists for their time and gracious advice: Victor Cisneros, MD, MPH, UC Irvine Dept of EM; Ronald Rivera, MD, UC Irvine Dept of EM; PK Fonsworth, MD, MBA, MLK Community Medical Group; Chris Bolano, Sergeant, UC Irvine Police Dept, and Monica Glicken, Directing Attorney, Public Law Center.

REFERENCES

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10. Pinho, FE. Man in critical condition after being shot by sheriff's deputy at Harbor-UCLA Medical Center. Los Angeles Times. Published October 7, 2020. Accessed November 11, 2020. https://www.latimes.com/california/story/2020-10-07/sheriff-shooting-harbor-ucla
11. Joint Commission. De-escalation in healthcare. Quick Safety. Published January 28, 2019. Accessed on January 25, 2021. https://www.jointcommission.org/resources/news-and-multimedia/newsletters/newsletters/quick-safety/quick-safety-47-deescalation-in-health-care/
12. University of California Police. 2019 Annual Review. UCI Health Public Safety Division. Published 2019. Accessed January 1, 2021. https://police.uci.edu/uci-health/_img/2019-annual-report---uci-health-public-safety-division.pdf
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14. Richmond, J.S., Berlin, J.S., Fishkind, A.B. et al. Verbal De-escalation of the Agitated Patient: Consensus Statement of the American Association for Emergency Psychiatry Project BETA Descalation Workgroup. West Journal of Emergency Medicine. 2012 February; 13(1): 17-25. doi: 10.5811/westjem.2011.9.6864