1 / 14

Legal Aspects of Law Enforcement Interviews of Hospital Patients

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. Hospital interviews by law enforcement pose basic conflicts.

Download Presentation

Legal Aspects of Law Enforcement Interviews of Hospital Patients

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript


  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

More Related