When Police and Nurses Disagree Over Blood Draw Consent - Know What to Do
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?
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.
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.
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.
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.
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.
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.
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?
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.
Okay so if the cops are involved in pretty sure your patient ain't some upstanding individual. He's gonna refuse. Fire put out.
It is wrong to assume that someone is guilty without legal proof. It is not your right to assume someone is guilty just because police are involved. At least, that is the case in America. We have some Constitutionally guaranteed rights.
If you were the suspect, you would want those rights accorded to you.
And how is the fire put out if the person refuses? That still leaves the police wanting something, the pt is still refusing permission for you to do it, and you are still in the middle.
On 9/10/2019 at 1:56 PM, Lorie Brown RN, MN, JD said:
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.
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.
I would think that certain labs would be drawn routinely if someone is unconscious. Hopefully, whatever it is that the police want is among them.
RN's don't draw labs for law enforcement in any state I've worked in, all of the state BON's I've worked under only allow RNs to perform invasive procedures for therapeutic purposes.
To clarify the OP, Alex Wubbels wasn't refusing to draw the blood, she was correctly protecting the patient from an illegal blood draw by an LEO, which is assault.
rzyzzy
389 Posts
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.