Jump to content

When Police and Nurses Disagree Over Blood Draw Consent - Know What to Do

Nurse Refuses to Draw Blood Without a Warrant

Nurses Headlines Article Video News   posted

Lorie Brown RN, MN, JD specializes in Medical Legal Consultant.

What happens when the police, nurses, hospitals, and state nurses associations disagree on consent to draw blood from a DWI suspect without a warrant? What policy should the nurse follow?

When Police and Nurses Disagree Over Blood Draw Consent - Know What to Do
Share Article

You may recall the July 2017 case of Alex Wubbels, a Salt Lake City nurse who was arrested for refusing a police officer’s command to draw blood from a comatose auto accident victim without a physician’s order or warrant. The uproar from the incident not only led to a change in the Salt Lake Police policies regarding blood draws but in a Utah law specifically requiring warrants be obtained before getting such draws in the future.

Recently in Texas, Jonathan Moore, with 5 prior DWI convictions and off probation for only 5 days, was involved in an accident resulting in the deaths of a former Dallas Councilwoman and her daughter.

At the scene, police who stopped Mr. Moore were concerned that he had been drinking. However, despite the breathalyzer test showing an alcohol level of 0.00, Moore proceeded to fail all 6 field sobriety tests administered to him.

Moore was taken to the hospital where police officers asked the nurse to draw his blood for a drug screen. She refused stating she could not withdraw blood without patient consent and, because Moore supposedly was intoxicated, he could not give consent. The nurse suggested that the officer get a warrant.

The hospital’s policy states that it’s the officer’s job to obtain a warrant and cite the reason for the requested blood draw. It is not the responsibility of the nurse.

Nevertheless, the Texas Nurses Association (“TNA”) believes that “if a person is in custody and has been arrested, law enforcement can request taking a blood draw without an individual’s consent. It is law enforcement’s responsibility to know that the person has been arrested for an offense that does not require … consent.”

Clearly, we have a conflict in the rules between hospital policy and the TNA.

Always follow your hospital’s policies which is what the nurse in this case did, she insisted on a warrant to draw the blood.

This case is a bit different from that of Nurse Wubbels because here the person was not comatose and was the actual perpetrator of the crime. Whereas in the Wubbels matter, the patient was a victim injured by the perpetrator.

I recommend that you make sure that your emergency room has clear policies and procedures in place to ensure you know what to do and under what circumstances you can draw blood so that you never to find yourself in one of these situations.

Lorie A. Brown is a Nurse Attorney representing nurses before the licensing board and founder of EmpoweredNurses.org. Empowering Nurses at the bedside and in business.

8 Articles   116 Posts

Share this post


Link to post
Share on other sites

Just to be clear, in the Utah case the officer involved was trained to draw blood to be used as evidence and was at the hospital to do so. Alex Wubbels refused to allow him access to the patient without a warrant, as she should have, but she was never ordered to draw the blood herself. Fortunately where I am if the police want blood drawn as evidence they are required to draw it themselves or subpoena lab results that were already obtained. This keeps me out of the fray and does not put me in an awkward situation with my patients.

Gadsale specializes in Marketing / Advertising / Digital Media.

This is a great article and an interesting topic. It brings up interesting questions about privacy rights and consent. A driver can refuse to blow in a breathalyzer or give blood but then has to deal with the consequences. What happens when the driver cannot give consent? Who has access to those blood samples? What else can they test for (HIV), etc? How is the patient driver protected from overzealous police or medical errors?

HarleyvQuinn specializes in Military, ER/Trauma, Psych, Post-Partum, Med-Surg.

3 hours ago, Snatchedwig said:

If they want me to draw it they gonna have to pay me. Until then draw it yourself ... quite simple

The ER I worked out informed us we were not permitted to refuse to draw for the police, that it was part of our duties as staff in the ER, unless the patient refused consent/was unable to consent and the officer/trooper did not have a warrant. This left us open to subpoena and we were forced to go to court on what was scheduled as a day off. That's if they didn't forget to tell you that you received a subpoena, as they came through the hospital. You'd get compensation if the patient didn't plea out as soon as they saw you walk in (happened to me), but that's not exactly how I wanted to spend a day off. It caused a bit of resentment. I'd rather the law enforcement offices have their own staff to perform the draws and show up to court to testify.

Snatchedwig specializes in Medsurg.

3 hours ago, HarleyvQuinn said:

The ER I worked out informed us we were not permitted to refuse to draw for the police, that it was part of our duties as staff in the ER, unless the patient refused consent/was unable to consent and the officer/trooper did not have a warrant. This left us open to subpoena and we were forced to go to court on what was scheduled as a day off. That's if they didn't forget to tell you that you received a subpoena, as they came through the hospital. You'd get compensation if the patient didn't plea out as soon as they saw you walk in (happened to me), but that's not exactly how I wanted to spend a day off. It caused a bit of resentment. I'd rather the law enforcement offices have their own staff to perform the draws and show up to court to testify.

Okay so if the cops are involved in pretty sure your patient ain't some upstanding individual. He's gonna refuse. Fire put out.

HarleyvQuinn specializes in Military, ER/Trauma, Psych, Post-Partum, Med-Surg.

15 hours ago, Snatchedwig said:

Okay so if the cops are involved in pretty sure your patient ain't some upstanding individual. He's gonna refuse. Fire put out.

Actually, refusal wasn't common at all. These blood draws are generally for patients brought in for allegations of DUI/DWI. For the patients I cared for, I never had one refuse the legal blood draw. They were calm and cooperative throughout the procedure. More often than not, it was the Officer/Trooper who was a ball of anxiety and convinced that the staff were going to "destroy my case" by "messing up the draw." 🤷‍♀️

I agree with what is written above. If the patient is able to give consent, if they can refuse a breathalyzer they can refuse a blood draw. If the patient cannot give consent, police need a warrant for the blood draw or they need to be under arrest.

Being an ER nurse doesn't magically protect you from patient battery charges by the patient if they cannot consent, are not under arrest, and the police stands there and stomps their feet and say, "I want a blood draw". Hospital policy cannot take away patient's rights.

Alternative: Many times when a patient is brought in unconscious, a drug/alcohol screen is performed based on protocol. If that is the case, the DA only has to subpoena the results from the medical record.

Interesting that a doctor's order can override consent. Why isn't this more of a topic for docs then?

6 hours ago, NormaSaline said:

Interesting that a doctor's order can override consent.

Can you clarify? What situation(s) are you referring to?

On 9/5/2019 at 4:40 PM, Snatchedwig said:

If they want me to draw it they gonna have to pay me. Until then draw it yourself ... quite simple

Who should pay you? How much?

I’m not a cop, I’m a nurse.. if the patient doesn’t consent, I don’t touch.. really don’t give a rat’s behind about warrants - if a judge wants some blood without consent, they can come get it themselves..

that said - because of my beliefs, I haven’t placed myself in employment situations where that kind of drama is likely.

On 9/8/2019 at 12:35 AM, JKL33 said:

Can you clarify? What situation(s) are you referring to?

I might have been assuming that based on this from the original post --

Quote

you may recall the July 2017 case of Alex Wubbels, a Salt Lake City nurse who was arrested for refusing a police officer’s command to draw blood from a comatose auto accident victim without a physician’s order or warrant.

--I thought the doctor's order carried the same weight as a warrant.

Okay - I see why you wrote that @NormaSaline.

I think there is a distinction that needs to be pointed out; there have been other posts that also didn't make this clear. (And this is specific to where I am but hopefully it is the situation in a lot of places....most places).

Physicians may order lab work, but the rationale for doing so is because it would be in the interest of the patient and their medical (not legal) situation. The news item you just quoted really shouldn't have written that sentence in that way. What the situation was, was that the doctor didn't need to order a BAL for his/her medical diagnostic purposes (so Alex had no need to draw the blood for that reason) and separately, the officer did not have a warrant for the blood draw he wished to perform upon a patient. It wasn't just that they "couldn't get blood work because there was no warrant and no order (to circumvent) the warrant." It is an ambiguous sentence but it is really important to understand the nuance. We are not doing things because police want them done and don't want to get a warrant; we are only doing what is in the patient's medical interest unless a warrant is presented that requires additional actions on our part.

Physicians' orders for blood work on people (who simultaneously happen to be) in a legal situation is still not for legal purposes. It is for medical purposes, unless a proper warrant is presented. That means that if there is no warrant and no medical reason for us to do something, we won't be doing it.

I saw this issue mentioned earlier in the thread, that if officers don't have a warrant they can just subpoena medical records and get the same information anyway. That is true if we happen to have needed that same information for our medical purposes and diagnosis/treatment of the patient - but if we don't, we won't be ordering those tests and the information won't be available to subpoena. None of it means that we (ED) will be ordering what the officers need/want, as a way to circumvent proper legal processes.

Crash_Cart specializes in ER OR LTC Code Blue Trauma Dog.

Well they better send officers to physically restrain the patient when the forced blood draw without consent takes place.

I think there are just so many things wrong with this from both a legal and ethical practice perspective. It unfairly puts the nurse in the middle of it all.

Edited by Crash_Cart

On 9/9/2019 at 10:08 AM, JKL33 said:

Okay - I see why you wrote that @NormaSaline.

I think there is a distinction that needs to be pointed out; there have been other posts that also didn't make this clear. (And this is specific to where I am but hopefully it is the situation in a lot of places....most places).

Physicians may order lab work, but the rationale for doing so is because it would be in the interest of the patient and their medical (not legal) situation. The news item you just quoted really shouldn't have written that sentence in that way. What the situation was, was that the doctor didn't need to order a BAL for his/her medical diagnostic purposes (so Alex had no need to draw the blood for that reason) and separately, the officer did not have a warrant for the blood draw he wished to perform upon a patient. It wasn't just that they "couldn't get blood work because there was no warrant and no order (to circumvent) the warrant." It is an ambiguous sentence but it is really important to understand the nuance. We are not doing things because police want them done and don't want to get a warrant; we are only doing what is in the patient's medical interest unless a warrant is presented that requires additional actions on our part.

Physicians' orders for blood work on people (who simultaneously happen to be) in a legal situation is still not for legal purposes. It is for medical purposes, unless a proper warrant is presented. That means that if there is no warrant and no medical reason for us to do something, we won't be doing it.

I saw this issue mentioned earlier in the thread, that if officers don't have a warrant they can just subpoena medical records and get the same information anyway. That is true if we happen to have needed that same information for our medical purposes and diagnosis/treatment of the patient - but if we don't, we won't be ordering those tests and the information won't be available to subpoena. None of it means that we (ED) will be ordering what the officers need/want, as a way to circumvent proper legal processes.

Excellent clarification. Thanks.

kbrn2002 specializes in Geriatrics, Dialysis.

Too bad I don't have a lawyer handy that I can ask some of these questions. What about the patient that comes in unconscious or impaired enough to not be able to give consent? I assume for that patients medical care the labs would be ordered anyway regardless of law enforcement. My question is this, a person's medical record is private so what if the patient isn't able to give consent or refuses to give consent for law enforcement to access the test results through the medical record? If the patient is aware and able to refuse consent can they even fight a subpoena to access the results?

26 minutes ago, kbrn2002 said:

Too bad I don't have a lawyer handy that I can ask some of these questions.

The OP is a lawyer. 🤷‍♀️

Lorie Brown RN, MN, JD specializes in Medical Legal Consultant.

On 9/9/2019 at 3:51 PM, Crash_Cart said:

Well they better send officers to physically restrain the patient when the forced blood draw without consent takes place.

I think there are just so many things wrong with this from both a legal and ethical practice perspective. It unfairly puts the nurse in the middle of it all.

On 9/10/2019 at 2:24 PM, kbrn2002 said:

Too bad I don't have a lawyer handy that I can ask some of these questions. What about the patient that comes in unconscious or impaired enough to not be able to give consent? I assume for that patients medical care the labs would be ordered anyway regardless of law enforcement. My question is this, a person's medical record is private so what if the patient isn't able to give consent or refuses to give consent for law enforcement to access the test results through the medical record? If the patient is aware and able to refuse consent can they even fight a subpoena to access the results?

When a patient comes in unconscious, then there is an emergency consent doctrine which means patients can be treated in an emergency situation. That does not mean they can do things which are not medically necessary.

When a subpoena is issued, the patient can move to quash the subpoena in court but that means they will need to hire an attorney quickly and ask for a temporary restraining order but you have to show the harm of having the blood drawn is great so I think it would be tough to pass that hurdle.

On 9/10/2019 at 2:24 PM, kbrn2002 said:

Too bad I don't have a lawyer handy that I can ask some of these questions. What about the patient that comes in unconscious or impaired enough to not be able to give consent? I assume for that patients medical care the labs would be ordered anyway regardless of law enforcement. My question is this, a person's medical record is private so what if the patient isn't able to give consent or refuses to give consent for law enforcement to access the test results through the medical record? If the patient is aware and able to refuse consent can they even fight a subpoena to access the results?

When a patient comes in unconscious, then there is an emergency consent doctrine which means patients can be treated in an emergency situation. That does not mean they can do things which are not medically necessary.

When a subpoena is issued, the patient can move to quash the subpoena in court but that means they will need to hire an attorney quickly and ask for a temporary restraining order but you have to show the harm of having the blood drawn is great so I think it would be tough to pass that hurdle.

×

By using the site you agree to our Privacy, Cookies, and Terms of Service Policies.

OK