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

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by Lorie Brown RN, MN, JD Lorie Brown RN, MN, JD (Advice Column) Writer Expert Verified

Lorie Brown RN, MN, JD has 30 years experience .

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Nurse Refuses to Draw Blood Without a Warrant

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

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.

11 Followers; 8 Articles; 5,786 Profile Views; 101 Posts

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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.

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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?  

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Snatchedwig has 11 years experience as a ADN, CNA, LPN, RN and specializes in Medsurg.

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

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HarleyvQuinn has 12 years experience as a BSN, RN and specializes in Military, ER/Trauma, Psych, Post-Partum, Med-Surg.

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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. 

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Snatchedwig has 11 years experience as a ADN, CNA, LPN, RN and specializes in Medsurg.

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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.

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HarleyvQuinn has 12 years experience as a BSN, RN and specializes in Military, ER/Trauma, Psych, Post-Partum, Med-Surg.

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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." 🤷‍♀️

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Jory has 10 years experience as a MSN, APRN, CNM.

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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.  

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6 hours ago, NormaSaline said:

Interesting that a doctor's order can override consent.

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

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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?

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Snatchedwig has 11 years experience as a ADN, CNA, LPN, RN and specializes in Medsurg.

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5 hours ago, Kooky Korky said:

Who should pay you?  How much?

Depends on how hard the stick is. 

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