Following up on yesterday’s post and discussion with Michael Morse and Rescuing Providence, the question has been posed about the legality of using police officers to take people with diminished capacity into custody as a way to authorize us to treat and transport them against their will.
There is a lot of good, down to earth advice we come across in the fire and EMS communities. Having been a firefighter for ten years before I started law school, one of the things I focused on in my studies was understanding the legal underpinnings of that down to earth advice.
We have probably all been taught at one time or another that police officers have the authority to take people into custody, and authorize their treatment. Could the solution to the dilemma we face with a patient with diminished capacity be that simple? Could it be that in a close case we simply need to defer to the other guys/gals in blue? Ahhhhh…… it’s a bit more complicated than that.
All states have laws that authorize a police officer to take a person into “protective custody” when they are deemed to be unable to care for themselves, a risk to themselves, or are otherwise incapacitated. A few states limit the protective custody power to people who are intoxicated, but most states do not impose such a limitation.
Once a person is arrested or is taken into protective custody, a police officer has a legal duty to protect the safety of his/her prisoner. In addition, states universally have laws that require all persons to comply with the lawful orders of a police officer. Combining those two laws, a police officer has the authority to direct us to take a person in their custody to a medical facility against that person’s wishes.
However, that is the extent of the officer’s authority. The officer cannot override the patient’s right to consent or decline treatment. For example, a police officer cannot order us to start an IV or push meds over a prisoner’s objection. Nor could the officer order an ER physician to treat a patient against the patient’s will. That would require an independent determination by the medical provider that the patient lacks capacity.
So what is the advantage of using a police officer’s power to place someone into protective custody? By using a police officer to take someone into protective custody, we are exchanging our determination that a patient lacks mental capacity, for the police officer’s determination that the patient lacks capacity and needs to be taken into protective custody. In my mind there is no advantage – other than perhaps having an additional witness to the patient’s state of mind.
Of course if the patient is violent or resists, the involvement of police is invaluable. In some cases, a patient may be more compliant if the police officer orders them to be transported, although the opposite can also be true. But strictly from a legal perspective, a police officer has no greater authority to order treatment for a person in protective custody than otherwise exists. It still comes down to our determination of whether or not the patient is capable of understanding the risks of declining aid and the benefits of accepting aid, and making a voluntary decision.
And now for a brief commercial: The 2nd Edition of Legal Considerations For Fire and Emergency Services is due to be released on June 15, 2011. The 2nd Edition adds an entire chapter on EMS related issues ranging from what we are talking about here – to DNR orders, HIPAA and medical confidentiality. It also addresses many of the hottest legal topics facing the fire service, including digital imagery, social media, grooming and tatoos, along with updated cases including the US Supreme Court decision in Ricci v. DeStafano (the New Haven case) and an overview of the ruling in Lewis v. Chicago. For more info.
Take a look at the current textbooks that are used to educate our EMT and Paramedic students. Respiratory, cardiac, Seizures and trauma chapters are extensive, in depth and loaded with colorful powerpoints that outline extensive treatment and care. Now look at the Psych, ETOH, diminished capacity and medical legal. These chapters prove the least amount of guidance and direction. In fact the National Registry exam has only a small percentage of these questions on the final exam. Point being, we are not educating our pre-hospital providers to adequately handle these situations. A cardiac arrest is what it is- CPR, drugs, airway, all managed in sequence in hopes for a positive outcome. How about The intoxicated male who is in custody following a bar fight. Fire/EMS are called for a “check up”. He is altered with injuries secondary to a fistfight. Why is he altered? Is it safe to leave an intoxicated person in protective custody when there is a potential for hidden or masked injuries? What do you do? My experience had been the police are looking for “your blessing” to bring them to lock up. But is the EMT educated and or experienced to properly treat this patient with the added element of police involvement
Is he injured? Is his pain tolerance elevated due to the alcohol or is he
slurring his speech due to a head bleed? At the very least if the police insist on the person remaining in custody, document, document, document. Oh yes, documentation, another topic scarcely covered in pre hospital education
Our PD fights us on every scene involving a drunk, yet insists we transport every broken fingernail from their lockup. My favorites are DUIs. This one has happened to me twice, exact same situation-even happened on the same street!
Arrive to find a vehicle into a building at 60mph, car completely destroyed with every air bag deployed. Passenger is ETOH and has a head injury. He goes on a backboard and to the hospital as a priority 1. The driver is another story.
Driver denies any injuries, but is stumbling around and obviously ETOH-blows above 2.0 BAC. The cops already have him cuffed and state he’s only drunk and in their custody. Since there is no blood, they assume he’s just drunk and refuse to let EMS examine him. “Friendly” argument ensues between Fire/EMS Lt and PD Sgt. End result-driver goes to jail, Fire Lt files report stating PD interfered with patient care and refused treatment.
Jason
I am not suprised that EMS text books provide a superficial treatment of this issue. It is not easy to get the point of understanding the legal analysis that should be applied. We have all been in classes with great instructors who provide good practical advice on diminished capacity, but separating fact from fiction is a challenge. Studying the law and reaching a legal conclusion is beyond the comfort zone of most EMS authors. It is not a simple matter of hiring an attorney to help write that section – because the typical attorney would not have a clue about the real issues. So they skirt the issue and parrot what they have heard from elsewhere.
I agree with you on the intoxicated patient challenge.
John
Sounds like a serious problem brewing (or perhaps percolating over a long period of time) between police and fire. That needs to be addressed separate and apart from the specifics of the ETOH/diminished capacity cases.
I have been tracking cases across the county where firefighters/EMS personnel have been arrested at incident scenes (I call it Police-Fire Wars)and one of the biggest contributing factors is a lack of communications between the organizations from the chiefs on down. It is a leadership issue and it should not be ignored.
More to your point, how does a car hit a building at 60 mph, the passenger has a head injury, but somehow the driver is fine? Are the cops serious? I’d be asking the officer to sign the refusal of aid form as well and informing him of risks of denying his prisoner medical attention. Why would a police officer want to take on that kind of liability? What does he say the next day if the driver is paralyzed from a fractured vertebrae? “Gee, that’s strange – that’s never happened before in the 2 1/2 years I’ve been a police officer”?
Again – as a firefighter/EMT paramedic there is not alot you can do. Its a leadership issue and your chief needs to address this sooner rather than later with the police chief.
In California any LE, MD, social worker can detain/send to eval facility for the tiniest of anomalies. Even rudeness to a LEO has been supported, because ‘only a deranged person would do that'(sic). Got good insurance? Facility(all private hospitals) will rubberstamp for 2 more weeks on top of the initial 3 days. No access to courts/Habeas Corpus(state courts) until end of 2nd week period. No right to outside contact. I have a friend who is mostly pissant/challenging personality. Social Worker detained her as threat to self because she was fit and slim, not an obese cow like other gals at this clinic. “underweight thus threat to self’ and away she went. required MD eval at local ER, doc measured height and weight and charted ‘low but within norms’. no matter, off to the eval center. oh yea, super medical insurance. Her parents and I filed emergency writ in Federal court which ordered her release. Produced same at facility and they said ‘we recognize state of Cali orders only!’ Took a Federal Marshal to convince them otherwise. Cost us about $10k. Later got a restraining order preventing detention under this code throughout Cali. First time such ever issued. Can’t remember if it was a state or fed injunction. Sorry, a little off topic, but meaningful to me….Gracias
RAN
I had never heard of this type of thing happening anywhere – let alone California. Sounds like you took the only available route – Federal habeous corpus. I’m interested to learn more about these cases.
This all took place in <20 hours thanks to a bastard of an attorney in Sacramento. This guy stormed into a live Fed courtroom, quick whispers to Asst. US attorney and defense attorney for permission to interrupt and in one minute presented the matter to the Fed judge. Maybe the photo he showed them, skimpy soccer outfit, ultra fit w/big boobs got their attention. Walked out w/handwritten writ. I was there! Amazing. Our attorney had represented this girl when she was a straight A student at UC Davis. The city cops were hassling her and she was blowing them off. Meeting w/girl, her atty, Chief of PD and burley thug cop who was the main stalker; devolved into fistfight between thug and atty. PD never spoke to girl again. Grad double major in real sciences. Lesson: get an Atty who can and will fight. Man fight, not paperpushing fight. That's Cali. My experience in Wa. state; Oh so different. Wa constitution has far more codified protection from abuses/intrusions of the state. In Cali you get the Federal minimum. Routinely less. Wa. civil commitment process in field and hosp is via 'Mental Health Professionals' a civilian officer of the court with minimum MSW preparation and several months specific job training. All the phone you want if detained, a GOOD atty the next day and the SAME atty at your hearing on day 3. Not some CCTV charade w/judge across town. You get to clean up for hearing and provided w/ quality clothing. LE and FD have broad authority in Wa code to manage emergencies. In practice, that includes entering anywhere/anymeans if there is reason to suspect an emergency. LE has a slightly higher threshold since their entry can become a 'search' with the intent of prosecution. There is no such intent by FD. WA's concise language assumes that FD will develop policy to do their work. Not verbose micromanagement from the legislature. That Rhode Island code is crap. If you are right now out of control we tie you up, put a spit sock on your face and send you to county hospital ER via BLS where you are humanely and respectfully evaluated. And tied down. Body searched like prison inprocessing, if no coop we cut all your clothes off. If cavity suspected depot a bedside ultrasound. Yea, we're thorough. All jewelry removed except tight fitting wedding rings. Some folks have studs/piercings in strange places. I have seen piercing hardware that assembles into handcuff keys, edged/stabbing weapons, fluid containers. In Wa. docs don't have specific code authorizing restraints, it's part of the practice like any treatment, via implied consent you would want this if you were in your right mind. All this searching and 'holding for later'( we give everything back, yes everything, when your invol status is done(don't ask me about specific items, yes again everything). Authority not so clear for private amb emt's but they restrain and transport 'danger to self/others' patients based on their assessments. Amb company policy and county ems(a govt agency) policy clearly instruct them to do this. We've tied up lawyers, cops, judges, credentialed foreign diplomats(you don't want to know the time/paperwork on this one), enrolled tribe members while on tribal land(at tribal PD request, even so very, very complex arguments re. authority for non-tribal EMS to move him off tribal land against his will. Imagine an agent of the state forcing a US citizen to Canada 'for their own good'. The mechanism does not exist. There is no authority for non-tribal EMS/FD to kick a door on tribal land, I have read and operated under tribal law which required tribal rep to accompany non-tribal FD/EMS units. I've first driven the ambulance to pickup the rep then driven to the scene. I've run a couple hundred calls on tribal land) There is a lot more restraining and invol transporting to ER in WA than other states(my exp) but far less invol hospitalization. Maybe better problem solving in the ER. And hear this…zero tolerance for nasty abusive treatment of the psych population by providers. Absolutely everywhere else I've worked/observed, field/hosp staff regularly dish out snide-snickers re. 'those people', SOP excessive force to 'let them know who's boss' and outright lies in the chart. A bit long again…but seeing a different column here by Chief Varone stating the ultra obvious; agents of the state, ie. FF's, can not prohibit videotaping(generally), suggests that the topic of constitutional protections in FD practice be advanced Lastly It's rare to have such an articulate, on point, resource in our industry as Chief Varone. I pray I have not abused his ready access…RAN
Ran
No worries – I love debating!!! There are way too many people who are thin skinned. If you don’t agree with them, or try to challenge their perspective you become their enemy for life!!!! Life is too short – we should be able to disagree, debate it out, and then grab dinner!!! Maybe even debate it some more….
In that regard – I have always found it helpful to look at the other side of an argument – and I would ask you to do that here (if for no other reason than to humor me).
What should a police officer, paramedic, or social worker do if they genuinely believe someone needs help – that a patient has lost the capacity to care for themselves? I understand your experience is that most “agents of the state” abuse their power – but let’s assume in a given case they are not abusing their power. Should they allow a patient who needs help to wander about, maybe into traffic? Should they allow someone who appears to be suicidal to commit suicide, perhaps taking others with them (children, passengers in their vehicle or another vehicle, neighbors (fire/gas explosion) etc etc.)…. what should a firefighter who is acting out of a sincere concern for another human being do? The corollary to that is what should we do to that firefighter if they fail to do the right thing…. how should we treat the firefighter who should have realized his patient needed help, but was too lazy to do the right thing?
This is a legal topic and debate I am and have been exploring in depth for almost 5 years. My educational and training back ground involving this subject is that I am a trained Army Combat Medic and Patient Care Specialist and was Certified in the State of Connecticut as an E.M.T. in 1984. I also have an Associates degree from Northwestern CT Community College in Human Services, A.S. degree and a B.S. degree from The University of CT in Social/Human Sciences. I also have over 25 years of experience, including several as a private duty care giver and Hospice aid.
The school of very hard knocks the past 5 years has brought me a very disturbed personal understanding about the crisis in the criminal injustice system that is imposed upon the most disenfranchised, vulnerable, and easily manipulated and targeted population of disadvantaged poor, and that is the ‘mentally’ disturbed and those the system can easily and intentionally stygmatize for this inhumane job and income producing scheme.
In my community, the City of Torrington Police, the local Charlotte Hungerford Hospital, Campion Ambulance, the entire State Judiciary including the Correctional Facilities, CT Valley Hospital, CT UCONN Prison Medical, State of CT Dept of Mental Health and Addiction Services and others feeding off the vast amount of tax payer dollars that feed the government/prison for profit (theirs) industrial complex- all holding hands with each other milking the medicare/medicaid system forced to pay for this abomination.
I am a victim of almost 5 straight years in an intentional, organized political hate crime against me by multiple parties involved in illegal retaliation against me for my 10 years of government corruption whistle blower activities, including the past 5 that have included the gross misuse of the police and judiciary against me.
My name is quite infamous now due to the breach of my confidential medical condition by police, as reported multiple times in both local newspapers (google my name and read all about it), has violated my ADA rights in that the Judicial system (including the police) are required to keep my medical condition or any knowledge of such confidential. Instead, the police and judicial system not only have broadcast through multiple false arrests and these intentionally cruel and inhumane attacks upon my person the police call ‘protective custody’ orders, so worried (NOT) about my ‘mental’ health or ‘wellness’ in their intrusive unwanted and unwarranted checks and assaults, every police interaction has led to criminalizing and demonizing me as a ‘troubled’ ‘threatening’ ‘x-military’ dangerous psycho.
As a trained nurse and E.M.T. with experience in multiple fields of human and medical services, I can assure all involved in the 5 years of State of CT v me in these cases, not once was any of these forced evaluations warranted and that your illegal retaliation failed to produce anything but the facts that I have very well begun to outline here and the truth of my story has been told on my public face book page published notes, almost 600- Read All about it! I will continue to bring this topic to the forefront of all my political/social blogs in the future. Stay tuned!