Utah Nurse Arrest: The Legal Questions, Answered

Carolyn Buppert, MSN, JD

Disclosures

September 25, 2017

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Utah: The Legal Questions

Response from Carolyn Buppert, MSN, JD
                                 Healthcare attorney

Nurses and hospital administrators might be curious about the answers to several legal questions that arise from the case of the Utah nurse who, upon informing a police officer that he could not draw the blood of an unconscious patient without a warrant, was handcuffed, arrested, and forcibly moved from the hospital's burn unit into a patrol car.

In the Utah case, the patient was injured when his truck was hit by a vehicle being chased by police.

Question 1: Did the nurse have a legal duty to advocate for the patient in the way she did?

Yes. Nurses in Utah have a legal duty to advocate for the patient and safeguard his right to privacy. Nurse Alex Wubbels fulfilled that duty, which is stated in Utah regulations as follows:

  1. respecting patients' rights, concerns, decisions, and dignity;

  2. identifying patient needs;

  3. attending to patient concerns or requests; and

  4. promoting a safe and therapeutic environment by:        

    1. providing appropriate monitoring and surveillance of the care environment;

    2. identifying care situations; and

    3. correcting problems or referring problems to appropriate management level when needed.[1]

          

Furthermore, if she had failed to safeguard the patient's right to privacy, she could have been subject to a fine, under the "administrative penalties" provision of the Utah Nursing Rules:

Failing to safeguard a patient's right to privacy as to the patient's person, condition, diagnosis, personal effects, or any other matter about which the licensee is privileged to know because of the licensee's or person with a certification's position, in violation of Subsection 58-31b-502(1): initial offense: $500 - $5,000 second offense: $5,000 - $10,000.[1]

Many other states have similar language in their laws.

Question 2: Were Nurse Wubbels and the hospital correct in maintaining that the police officer needed a warrant in this situation?

Yes. The US Supreme Court ruled in Birchfield v. North Dakota in 2016 that either consent or a warrant is required when police seek to determine an arrestee's blood alcohol level. In the Utah situation, the patient was not arrested, nor was he a suspect, so that man's rights deserve even greater attention. The Supreme Court held that warrantless breath tests are permitted; warrantless blood tests are not. Protection against unreasonable search and seizure is found in the Fourth Amendment to the US Constitution. The Court's opinion said: "In instances where blood tests might be preferable—eg, where substances other than alcohol impair the driver's ability to operate a car safely, or where the subject is unconscious—nothing prevents the police from seeking a warrant or from relying on the exigent circumstances exception if it applies."[2]

The Utah police officers should have obtained a warrant. That's what the warrant process is for—so that a neutral and informed third party can weigh the needs of police against citizen rights. Presumably, the patient's blood already had been drawn on admission to the hospital, and the police could have sought a warrant to get access to that blood sample rather than demand that they obtain their own sample. Or, they could have obtained a warrant to draw their own sample.

The nurse was simply relaying hospital policy. The hospital had worked out a policy with input from the police department. The hospital policy said: No blood without the patient's consent, a warrant, or an arrest. Such a policy is appropriate and within the law.

Question 3: The patient was a commercial driver. Does this change the answer to question 2?

It's unclear. Utah regulations for commercial drivers state that commercial drivers, if they are driving, are considered to have consented to alcohol testing.[3] Whether the Supreme Court holding applies when the patient is a commercial driver and is not suspected of driving while impaired is an issue lawyers and judges could argue about for days. The issue is not settled by case law in Utah. One could argue that the Supreme Court case holds and that breath testing, but not blood testing, can be done without consent or a warrant. One could argue that the facts of this case differ from the Supreme Court case, so the Supreme Court opinion isn't applicable. One could argue that police had no business doing an invasive test on a man who wasn't a suspect and had not been arrested, even if he was a commercial driver.

Nurses shouldn't have to argue with police officers about interpretation of the law. At least one state, North Carolina, recognizes that and enacted a law that directs nurses to comply with the requests of police officers.

North Carolina General Statute § 20-139.1 says[4]:

  • A physician, registered nurse, emergency medical technician, or other qualified person shall withdraw the blood sample or urine test as specified by a law enforcement officer, and no further authorization or approval is required;

  • The person withdrawing the blood or collecting the urine may require written confirmation of the law enforcement officer's request before blood is withdrawn or urine collected;

  • The person requested to withdraw the blood or collect the urine may refuse to do so only if it reasonably appears that the procedure cannot be performed without endangering the safety of the person collecting the sample or the safety of the person from whom the sample is being collected; and

  • The medical provider who determines that a sample could not be collected safely must provide a written justification for the refusal to the law enforcement officer upon the officer's request.

What about the Health Insurance Portability and Accountability Act (HIPAA)? Doesn't it offer the patient any protection? Not in North Carolina because the HIPAA exception for law enforcement allows healthcare providers to disclose health information to a law enforcement officer if the disclosure is required by state law.[5]

In states where there is no state law requiring nurses to comply with police officers' requests for blood samples, then HIPAA would apply.

Nurses and hospital administrators may want to watch the full 19-minute video of the Utah incident. It's possible to hear one of the officers saying, when the charge nurse is researching hospital policy: "This can't be the first time this has happened." Right. Some nurses who have commented in response to the Medscape news article on this case have said that they frequently interact with police officers about access to patient information when caring for patients who have been in accidents, and the interactions usually are civil and appropriate.

One would hope that this group of Utah police officers were unusual in their volatility and misinformation. In the video (beginning at 12:25), the supervising police officer can be heard talking to the handcuffed nurse, who is sitting in the police car. He says: "We wanted blood to determine whether there were chemical substances.... If we are doing something wrong, there are civil remedies.... I know what the law is.... Your policy doesn't affect my legal standing.... What you have done is to prevent this officer from doing his job.... There is a bad habit here of your policy interfering with my law." A man who appears to be associated with the hospital tries to intervene. The police officer refuses to listen to him. Then the police officer refuses to speak with the hospital's privacy officer.

The police supervisor in this situation wasn't on the right side of the law, especially when the patient was a victim of a police chase and not an arrestee or even a suspect. It's debatable whether the police would have been able to get a warrant, had they sought one.

Nurse Wubbels told the Deseret News that she hasn't taken action against the police but isn't ruling it out. She was quoted as saying:

I want to see people do the right thing first, and I want to see this be a civil discourse. If that's not something that's going to happen, and there is refusal to acknowledge the need for growth and the need for re-education, then we will likely be forced to take that type of step. But people need to know that this is out there.[6]

Could This Happen Again?

What do nurses and hospital administrators need to know for future interactions with police?

First, does your state have any laws that require disclosure of patient information to police or require compliance with police requests for blood draws?

Hospital department administrators should consult with the hospital's legal counsel on this. If there are state laws, you must comply with the state's requirements. If not, then HIPAA and the US Supreme Court case would apply, and police can draw blood or gain access to blood test results only with a warrant or consent of the patient.

Second, does the hospital have a policy on this? Does the policy allow or require a staff nurse or charge nurse to interact with police, or does it direct the nurse to refer all negotiations to a supervisor? Does the policy direct the nurse or supervisor about who to contact if police do not accept their decision? Does the policy reference local, state or federal law? In the Utah case, the hospital has revised its policy and now bars police from patient care areas and will require police officers to communicate with supervisors.

Third, have hospital security personnel been trained about what to do if a nurse is being assaulted on the unit or in the department, including what to do if the assailant is a police officer?

Fourth, we only know the nuances of this case because an officer filmed the entire interaction. Hospitals may want to have a means of making and keeping their own videos of interactions between the front desk and outsiders, including police.

Finally, this case is being investigated by higher authorities in Utah and the federal level. Optimally, there will be additional education within the police department and enhanced communication at a high level between the hospital and the police department. It would be optimal if there was an entity and a process for hospitals to turn to, late at night, if police act erratically or dangerously.

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