What interests me most about this is if the cop was ordered by his superior to make the arrest could he legitimately disobey that order.
You are never under obligation to follow illegal orders.
Unless it is a cop that is giving you illegal orders, then there are those who say you are under obligation to follow those illegal orders.
So, that is quite the conundrum. If it were the supervisor who was insisting that the cop arrest the nurse, and the cop saying that he didn’t think he should, as the cop felt that the nurse was on the right side of the law, those who feel that the nurse should have followed the cops illegal orders, should the cop have followed the illegal orders of the supervisor against his own judgment?
Honest question: Unless I am being detained, arrested, or otherwise in police custody, what gives a police officer the authority to give me an “order”? Did I fall asleep and wake up in a George Orwell book?
The particular hospital policy in question here IS the law, under both HIPAA & the Supreme Court Ruling re 4th Amendment. Hospitals cannot turn over a sample of the patients blood unless 1 of 3 criteria are met:
- Patient consent
- A warrant
- Patient is under arrest
They have a duty to disobey unlawful orders, even in the military. I thought this was all
sorted out at the Nuremberg trials, but apparently there is still a lot of confusion. If Lt Tracy had ordered Officer Payne to shoot the nurse, would he have complied? That likely would have been such an egregiously illegal order that (I’m guessing), no officer in his right mind would obey it. At least I hope so.
My apologies if I wasn’t clear. I quoted the wrong one of your posts. I blame it on the new format. 
My post was in relation to this post.
You said that " The hospital’s policies are the LAW…"
The hospital policies are guidelines endorsed by the hospital. They are not the law. They should match the law, but that isn’t always the case. My point was that the nurse quoting the policy to the officer doesn’t mean he has to follow that policy.
I’ll give a pertinent example. The hospital has reportedly banned police from patient care areas at the hospital. That is a policy. What are the* laws * regarding police custody? Are the police legally able to just drop off recently arrested prisoners who need to go to the ED? I don’t see this policy lasting very long. It could be possible for the hospital to hire an actual police force but there will still be issues that aren’t addressed by this policy. I wouldn’t be surprised if it was already weakened.
The answer is: some code provision of the state or municipality. For example, without being detained, arrested, or otherwise in custody, you can in my jurisdiction be lawfully ordered to move along if your actions obstruct the free passage of others coming and going from a public place.
This sort of gets back to my point. What is this authoritarian police force that does not have to abide by policies set by private owners? Unless the hospital policy is positively contrary to law, the police must follow the policy at the hospital just as you or I would.
I have a policy that I do not permit cigarette smoking inside my home. There is no law that forbids smoking inside a private residence like mine. If you were a guest at my home, I could enforce that policy. If a police officer is in my home, I can still enforce the policy even though my policy is not mandated by law.
Unless there is a statute or case law that says that someone cannot have policy X that applies to police, then that person can enforce that policy on the police. Just because I may not do jumping jacks to assist a police investigation does not mean that I am illegally obstructing that investigation.
This case is Exhibit A why I believe obstruction laws are unconstitutionally vague and ripe for abuses.
Perhaps I’m becoming demented. It looks like I did quote the right post in my original post. I’m not sure how I messed that up.
I’m definitely blaming it on the new format.
What if, for example, you had a policy that the police are not allowed into your home?
Should they abide by that?
Since this has drifted from the original questions in the OP, let’s move it over to Great Debates.
Colibri
General Questions Moderator
I haven’t read the hospital’s new policy on this, but my guess is that there would have to be exceptions to this. E.G when they bring patients in under arrest, they are often handcuffed to their gurneys with an officer standing outside the room. I don’t think the hospital would or should prevent that. My understanding is that the change in policy is that nurses should be focused on patient care, and if police have some request (such as a blood sample from a patient), they go through different channels in the hospital rather than relying on the medical staff to handle those requests. But again, I haven’t read the policy.
Right; quite apart from the question of what the law says, the nurse has a duty to her patient to try to prevent harm. Regardless of whether phlebotomy without consent is a HIPAA violation (I wonder whether it really is,) or constitutes assault, it’s a medical procedure that carries certain risks. It’s technically possible for someone to develop an infection after a blood draw, have it go septic, and DIE of septic shock. That’s why you either have to have the person’s consent, or, if it can’t be obtained (i.e., they’re unconscious and it’s an emergency,) the benefits (i.e., saving their life) have to outweigh the risks. Someone whose primary responsibility is caring for a patient has a professional duty not to stand idly by while something not medically necessary is done to them without their consent.
It is absolutely a HIPAA violation for a covered entity (hospital) to release a patient’s protected health information (blood falls into this category as it is personally identifying) without a court order, patient consent, etc. There is a clause that allows covered entities to release PHI to law enforcement in certain cases, but those requests must be in writing & have to meet other criteria not met in this case. The nurse was on the right side of the law–even the SLCPD acknowledged that.
Has PHI ever been defined to include tissue? That seems unlikely.
Protected Health Information. The HIPAA Privacy Rule protects most “individually identifiable health information” held or transmitted by a covered entity or its business associate, in any form or medium.
Individually identifiable health information is defined as information that:
-
Identifies the individual; or
-
With respect to which there is reasonable basis to believe the information can be used to identify an individual.
Blood or tissue samples contain your DNA, which clearly can be used to identify the individual…probably more ‘individually identifiable’ than anything else.
Missed the edit window, but even xrays are considered PHI. A hospital I worked in years ago settled a HIPAA suit after they released a patient’s xrays without consent. Hospitals take HIPAA very, very seriously.
Yes, I know; my skepticism is based on my experience with hospitals and other entities being overly paranoid about HIPAA, to the point of refusing to do even things which it explicitly allows (e.g., refusing to disclose information about a patient to a doctor who is directly caring for the patient without first obtaining a signed Release of Information consent form from the patient.)
Did the x-ray image in question have demographic data on it, like the patient’s name and date of birth? The prepared images usually do. That would certainly be a HIPAA violation.
IANAL, but I thought PHI had to be something which can actually used to identify someone. If I have someone’s name, date of birth, SSN, etc., I can look them up. If someone hands me a vial of blood with no label on it, even if I have access to DNA-sequencing lab equipment, how can I use that to find out who the blood actually belongs to?
Can you cite a case in which someone was actually prosecuted for violating HIPAA for not attempting to prevent someone else from drawing a blood sample from a patient?
No the demographic info had been redacted which is why the radiologist felt it was ok to use the image in a presentation. I can’t recall how the patient found out about it, but she did & filed a suit.
In this case, the phlebotomist cop would absolutely know who the patient was since he was requesting the blood of William Gray, the victim in the accident.
I am not aware of any case in which a hospital violated HIPAA for the reasons you stated above. I do know there was a case against UCLA back in the 70s or 80s where the hospital & a pharmaceutical company used a patients cell line & commercialized it. The patient lost the case since he had signed informed consent. William Gray could not consent.
And I do agree that hospitals get a little hysterical over HIPAA, but the fines & negative PR can be astronomical so I get it.
But in the UCLA case, the patient was not suing over a privacy breach, but he wanted a share of the profits made by the docs & pharma, so the situation is different. I’m not even sure that HIPAA laws existed at the time.
Arcite, Here is a case almost exactly like the Alex Wubbels case.
[quote=]
A federal judge has ruled a lawsuit against a former Selma police officer who allegedly handcuffing a hospital employee who refused to take a blood sample from a DWI suspect without a warrant can move forward.
[/quote]
But due to several delays in federal court, it has not yet been heard.