Tuesday, January 11, 2005

Reporting of Contraband to Law Enforcement vs. Legal and Ethical Duty of Medical Confidentiality

Below is an interesting article which appeared in the Lincoln County News, Lincoln County, Maine addressing the competing interests between health care providers and law enforcement on the handling of contraband found on patients who come to a health care provider for emergency treatment.

Does a health care provider have a responsibility to report or provide contraband to law enforcement? Do the new privacy standards under HIPAA or eithical standards of medical confidentiality prevent a health care provider from disclosing or providing the contraband to law enforcement? This The article takes a practical look at these issues.

I have had a number of clients raise this question under the privacy provisions of HIPAA. We have discussed the legal responsibilities, pros/cons of reporting contraband to law enforcement, duty of confidentiality to patinet, liability of the health care provider and need to maintain a good working relationship with law enforcement.

Hospital, Police Consider Privacy vs Enforcement
By Sherwood Olin
A recent conflict of interest in Damariscotta has put Miles Memorial Hospital in the delicate position of cooperating with local law enforcement while adhering to legal and ethical standards of medical confidentiality.

On Dec. 3, acting upon information and belief, the Damariscotta Police Dept. executed a search warrant on the hospital. Information developed by the search warrant subsequently resulted in the arrest of a Friendship woman on drug charges.

According to a police report, Devin E. Crowley, 28, was arrested by state police in Friendship Dec. 8 and charged with unlawful possession of scheduled drugs.

According to reliable sources, Crowley was receiving treatment at Miles for injuries received in a traffic accident on or around Dec. 1 when a number of packages containing a powder like substance were discovered on her person.

According to Damariscotta Police Chief Steve Drake, anonymous information led to the issuing of the warrant. Among the items seized were a sealed biohazard bag containing the powder and the medical report of Crowley’s Dec. 1 treatment.

Preliminary tests have indicated the powder to be heroin, Drake said.

According to Miles Hospital Chief Executive Officer Judy Tarr, the hospital and local police are both fulfilling their legal obligations. Tarr points out the hospital is bound by the strictest of confidentiality laws, federally regulated under the 2003 Health Insurance Portability and Accountability Act (HIPA).

In regards to patient care, the hospital is in the health care business, not law enforcement, Tarr said. Patients in need need to know they can come to the hospital for treatment without worrying whether they will be reported to law enforcement for an alleged offense.

“The hospital needs to be a safe haven for people who need treatment,” Tarr said.

Miles Hospital attorney Jim Bailinson seconded that point. Hospital personnel are not trained to make probable cause determinations and they are not law enforcement.

“I think it does put the medical provider in an awkward position to say the least,” Bailinson said.

Under no legal obligations to report the discovery of a contraband substance, and restricted by patient confidentiality, the hospital’s options include disposing of the substance quietly with no notification, or turning it over to law enforcement with no information regarding its source.

“Our first priority is to provide medical care,” Bailinson said. “Beyond that you have to be careful about making hospital employees make judgments. Who do you want to make a probable cause judgment?”

Where required by law, there are codified procedures for reporting cases to the appropriate authority. However, as this case has demonstrated, there is no clear-cut procedure for reporting instances involving contraband substances, Tarr said

“You name it there is a whole listing,” Tarr said. “There are things we are required to report and things we are not required to report… It is a matter of conflicting obligations and a little bit of grayness in the law. The law is not very specific on contraband.”

According to Miles Hospital Risk Manager/ Compliance Officer Julie Marsden, state statute is very clear. “The process to report these cases that are mandated is all very well prescribed,” she said. “Elder abuse, child abuse, that is all very clear cut.”

Among the steps that the hospital is taking is convening an in house panel to review the incident with an possibility of developing an appropriate procedure. Tarr said the hospital hopes to work with Drake who suggested such a panel.

Tarr said the hospital works as a partner with area law enforcement. Frequently in cases when a patient is determined to be a danger to himself and others, police are called to the hospital to enforce the peace.

“It is a very important relationship,” Tarr said.

“They have their concerns about confidentiality and HIPA and all that, but obviously I felt differently and I was able to convince an independent fact finder,” Drake said.

Following Crowley’s arrest, Drake said he spent the next weekend reviewing all available literature. Federal and state laws differ slightly on the scope of police authority regarding medical protocols, he said. Federal law authorizes police authority in the event of a crime. State law specifies a crime against the hospital Drake said.

In any event, Drake said his sole interest is not probing private medical issues but protecting the public safety. “If someone is coming in for treatment for heroin that is one thing, but when someone is in a traffic accident, and has drugs on them, that is another,” he said.

Drake pointed out there are reporting mechanisms in place for medical staff members who have reason to believe someone has operated machinery under the influence. For whatever reason, the hospital declined to report this case so Drake followed the legal process.

“The hospital wouldn’t turn it over so I went through the steps to get the information,” he said.

Agreeing HIPA laws are a very real concern, Drake said his unnamed sources are to be commended for their courage in reporting this matter. Heroin is a dangerous drug, he said. If this incident was not reported, what would have kept this person from selling this drug in the community.

“This is a dangerous, dangerous drug,” Drake said. “It is highly addictive. When you start getting heroin in your community, then everything else comes with it, burglary, prostitution, theft.”

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