Last month, many of us saw footage of the unceremonious arrest of Alex Wubbels. Wubbels was a nurse the University of Utah Hospital, who was arrested at work because she prohibited a police officer from conducting an unauthorized collection of blood, presumably for a toxicology panel, on a patient who had been the unfortunate victim of a motor vehicle accident.
The public was outraged about the reason for Wubbels’ apprehension, as well as the manner in which it was carried out. Essentially, she was arrested for doing her job and for defending the Fourth Amendment Rights of her patient.
This was deeply disturbing, of course. Who among us wants to be apprehended for carrying out our on-the-job duties and obligations?
What I found more alarming, however, was the officer’s willingness to infringe upon her patient’s constitutional rights, particularly when he was in a position in which he could not speak on his own behalf.
This is concerning, not because Wubbels was detained; rather, it is because each of us is probably more likely to end up as a patient in such an investigation, than to be arrested at work for merely doing our jobs.
Why were we more enraged about Nurse Wubbels than about her patient whose rights were at the heart of the issue?
Maybe it’s because most of us do not ever see ourselves being the subject of a criminal investigation. But consider that Nurse Wubbels’ patient may not have either.
William Gray, whom has since passed away from his injuries, was a truck driver and reserve officer with the Rigby Police Department of Idaho. He was driving a semi-tractor trailer, when a truck driver fleeing police crossed into oncoming traffic and crashed into Mr. Gray’s vehicle. The suspect died at the scene of the accident, while Gray was rushed to the University of Utah hospital, with burns covering almost 50% of his body.
Police Detective Jeff Payne, of the Salt Lake City Police Department arrived at the hospital with the intent to draw Grays’ blood as part of a criminal investigation. However, he had neither a warrant nor a court order, and William Gray was unconscious and, therefore, unable to give consent. As an officer of the law, Payne should have known this. It’s interesting to note that he was also a paramedic; yet another reason why he should have known the basic tenets of the Patients’ Bill of Rights.
Nurse Wubbels correctly prohibited what would have been tantamount to an unreasonable and/or illegal search and seizure, citing hospital policy. Instead of obtaining a warrant, Payne arrested Wubbels, which sparked a national outcry for justice.
But the outcry was for Wubbels… not William Gray.
The more I thought about Mr. Gray, the more I realized that everyone should have an idea of their basic patient rights as it relates to search and seizure. Should we ever find ourselves, or someone that we love, in a position that would compromise those rights, we need to have a basic understanding of what they are, and of how hospitals and other health-related facilities, as well as law enforcement, are expected to observe them.
Many do not realize that policies, procedures and laws regarding how patients who are a part of an active investigation or subjects in custody are to be regarded, affect the health and welfare of staff and visitors of that health care facility. Visitors may be subject to certain risks and dangers whether or not they are acquainted with the patient in question. Certain policies must be in place in order to preserve the safety of all.
So, what is it that you must know about laws and policies that govern patient search and seizure?
First, it is important to understand that a patient or resident of a healthcare facility, as well as their visitors can be the subject(s) of a criminal investigation, or at least considered a person/people of interest. This means that search and seizure of both the patient and their visitor(s) can take place.
Search and seizure may refer to search of a room, a person, or any of his or her belongings.
Therefore, the goal of the institution must be to establish and maintain policies that provide for a patient’s and/or visitor’s right to privacy, but still upholds an environment of safety for ALL individuals within that institution.
Institutions must acknowledge that its patients and visitors have the right to dignity, privacy and freedom from unreasonable search and seizures. This is a Constitutional and federally protected right.
It also must be acknowledged that all patients, visitors and staff members have the right to a safe and therapeutic environment. Achieving this means that certain steps must be taken to ensure that no one in the facility is in unlawful possession of dangerous items. Dangerous items would typically include: illegal substances; intoxicating substances; property belonging to another individual at that facility; weapons (including firearms, ammunition, knives or other sharp and penetrating objects that pose a danger to well-being); potentially hazardous items (including, but not limited to cigarettes, cigars, matches and inhalational substances).
When a search of a patient or visitor becomes necessary, that institution is to ensure that an effective search is done in the least restrictive manner, and with as much privacy as possible.
Notices regarding the institution’s policies and procedures for searches of person or belongings should be posted in the Emergency Department, psychiatric triage areas, on the general consent for treatment, and in the patient handbook.
If a search is deemed necessary, the Attending Physician on duty should be notified BEFORE the search is started.
When a search is being conducted, at least 2 individuals representing the hospital must be present. There should be a registered nurse or other clinical staff member, as well as a patient care manager or representative.
Regarding full body searches, these should only be done when a specific risk of harm has been identified and established. If a search of a visitor’s or patient’s clothing is needed, then they should be provided a screen behind which they can remove their clothing and then allowed to hand them to a staff member. There ought to be two staff members present, who are of the same gender as the patient, and established and accepted standards of respect and privacy are to be met.
If a search is conducted, then documentation of this should be provided in the patient’s medical record, along with details regarding:
the reason for the search;
patient or visitor notification of the search;
opportunities for relinquishment of contraband;
physician notification of the search;
patient or visitor instructions about the search and their responses;
all staff members present for the search;
search findings and the final disposition of any items that were seized, transferred or disposed of;
actions taken by security personnel or law enforcement related to the patient’s search.
Many hospitals will also complete an incident report, to be filed with the institution’s risk management department.
Because visitors will not have a medical record with a current encounter, documentation of their searches must be completed through the institution’s incident report.
In these situations, the patient is to be advised of the impending search and the reason for it. The patient should be given the opportunity to have a patient advocate present during the search; and while the search is being conducted, the process should be explained to them.
Prior to beginning the search, the patient should be asked if they are in possession of any contraband. If they are, then they should be given the opportunity to relinquish such items to a staff member. It may be agreed that the patient can give the items in question to a family member or guest to take home with them, providing that they are not illegal substances. Alternatively, they can be locked away in a secure environment, i.e., the nurse’s station. This needs to be documented carefully, so that these items can be returned the patient upon their discharge.
The hospital staff should consider transferring any illegal substances and/or weapons to local authorities in exchange for a claim tag. This claim tag should be maintained in a secure manner until the patient is discharged. At that time, he or she can go to the police station to claim their belongings.
While many patients or visitors will comply with the request for a search, there are many who may not. This eventuality should be prepared for. In such circumstances, risk must be evaluated and a course of action established.
If the patient is medically stable, then he or she may be discharged and escorted from the premises.
If the patient is deemed unstable for discharge, then the search must be conducted but with the previously described measures of safety and privacy in place. And if there is any anticipation of aggressive or violent behavior from the subject of the search, then security personnel or a local police officer should be present.
As has been stated in this article, visitors must be considered in plans to establish best practices for safety in a healthcare environment. Anyone visiting a patient, who may be considered a mental health risk, should be asked to leave all of their personal belongings in a secure location prior to entering the patient care space. If the visitor refuses to comply with these standards, then security and/or local authorities should be contacted immediately. Certainly, if it is believed that a visitor is in possession of weapons, including knives, ammunition, firearms or other dangerous items, then security and/or law enforcement should be notified, as well.
When it has been confirmed that a patient or visitor is in possession of prohibited and/or dangerous items, they should be asked to dispose of them right away, or to cooperate with the disposition of the item(s), which may mean immediately removing them from the facility’s premises. This should probably be reserved only for those items which are not deemed to be illegal.
It is important that the patient’s confidentiality is maintained and that their name and other identifying factors are NOT disclosed. This stipulation is in force as long as no visitors, staff members or other patients have been jeopardized.
Hopefully, neither you nor anyone that you love will ever be in a position to be searched during a hospital visit or stay. However, understanding that you do have a right to be free of illegal and unreasonable searches and seizures, even while admitted to the hospital, and having an idea of the standards that health care facilities are expected to implement and follow, can only serve you well.