Legal Aspects of Law Enforcement Interviews of Hospital Patients

1. Legal Aspects of Law Enforcement Interviews of Hospital Patients David M. Siegel, J.D. Professor of Law Co-Director, Center for Law & Social Responsibility New England School of Law November 14, 2009

2. Hospital interviews by law enforcement pose basic conflicts • 1989: Facing “crack babies,” Med.Coll. of SC adopts “Policy M7.” • 2000: US Supreme Court amicus briefs AMA: “[P]olicy forces physicians to compromise their commitment to patient confidentiality,... requiring [them] to act as agents of law enforcement […] undercuts [their] ethical obligation to act as patient advocates and protectors.” [Supporting neither side] APA: “[P]olicy depended at its core on compelling health care professionals to abandon their duties to patients .... [its] stated aim ... [required] a broad suspension of ethical obligations-including [...] core duties to deal honestly with patients, to safeguard their confidences, and to advocate on patients' behalf.” [Supporting patients]

3. Access, Disclosure & Admissibility • Patient access enables interviews • Information disclosure affects interviews • Later admissibility affects conduct of interviews

4. Little direct regulation of access • Mandatory law enforcement access to patients only with • Court order (search/arrest warrant) • Crime or emergency on facility premises • Law enforcement access as all others’ • Treating MD and facility control access

5. Indirect regulation of interviews • HIPAA permits disclosures to “law enforcement” • Pt is suspected abuse, neglect or d/v victim • To identify and locate persons • Crime victims (not abuse, neglect or d/v) • Emergency care (not abuse, neglect or d/v) • Also: specific wounds/injuries (state mandated reporting), legal process, decedents, crime on premises • Interview conduct affected by later admissibility • Federal and state constitutions • Conflict with professional obligations (e.g., AMA)

6. HIPAA disclosures: Pt suspected abuse, neglect, d/v victim • Mandatory reporting of child abuse/neglect • Adult pt reasonably believed abuse, neglect or d/v victim, if disclosure authorized by law, AND • MD believes necessary to prevent serious harm to pt or other potential victims, OR • Pt incapacitated, • Police represent information not intended to be used against victim, AND • Immediate enforcement activity depending on disclosure that delay would materially and adversely affect. [45 CFR 164.512(b)(1)(ii) & (c)(1)(iii)(A)&(B)]

7. HIPAA disclosures: For law enforcement purposes • To Find Someone: Identifying info of person police seek • Only name, address, DOB, POB, ht, wt, tx, injury, ABO type & rh factor • Not DNA, dental, or tissue/fluid analysis • Of Adult victim/suspected victim (not abuse/neglect, d/v) incapacitated or “other emergency circumstance,” AND police represent • To determine violation by another, not for use against victim, AND • Delay materially & adversely affect immediate enforcement activity, AND • MD determines in prof’l judgment disclosure in best interests of victim. • Reporting crime during emergency care (not abuse/neglect or d/v), if necessary to alert police to • To nature, location or commission of crime, and • Identity, description & location of perpetrator (even pt). [45 CFR 164.512(f)(1)(i), (f)(2)(i)(A-H) & (ii), (f)(3)(ii)(A-C) & (f)(6)(i)(A-C)]

8. HIPAA disclosures: To avert serious health/safety threat • Consistent with applicable law & ethics, if MD believes in good faith • Necessary to prevent/lessen serious & imminent threat to health/safety of anyone, and • Disclosure is to one reasonably able to reduce threat, OR • Necessary for police to ID or catch someone, • Because pt admitted to violent crime reasonably believed may have caused serious physical harm to victim, UNLESS • Pt made statement in treatment/counseling/therapy “to affect propensity to commit the conduct that is basis of the disclosure,” or in requesting txt/counseling/therapy. • Or where it appears from all circumstances pt is escapee. [45 CFR 164.512(j)(1)(i)&(ii), (2)(i)&(ii)]

9. Legal effects on statements’ admissibility • Privilege against self-incrimination (5th Am.) • Miranda warnings required for “custodial interrogation” • Absent criminal charge, hospital typically not “custodial” • Due process (5th and 14th Ams.) • No “involuntary” or coerced statements • Extensive police pressure, deception permissible • Right to counsel (6th Am.) • No deliberate elicitation of statements without counsel • Case must be past formal adversarial judicial proceedings

10. Legal effects on admissibility of physical evidence & identifications • Physical evidence from patients • Legality of searches & seizures • “Reasonableness” (4th Am.) and/or warrant • Validity of consent • Due process – “shock the conscience” • Identifications using patients • Invalid if unnecessary & suggestive (5th Am.) • Assessed under totality of circumstances

11. Police efforts at access v. MD’s therapeutic & confidentiality duties • Duty to minimize harm from access? • Prevent access without informed consent • Ensure adequate warning of risks of consent • Monitor & structure access to minimize risk • Risk of confidentiality breach in access? • Duty can be common law, statutory and professional • Breach can taint later admissibility

12. Questions • Can you consider or structure access without breaching confidentiality? • What if HIPAA-sanctioned disclosure of suspected victim info leads police to decide victim is perpetrator? • Can you observe interview without treating?

13. Discretionary Disclosures to Law Enforcement under HIPAA

14. Discretionary Disclosures to Law Enforcement under HIPAA