Since 2008, Texas law enforcement officials have been at odds with the medical community over the issue of obtaining consent for drawing blood from suspects during DWI arrests using judge-issued warrants. In October 2008, police officers in Burnet County obtained a warrant to have a DWI suspect’s blood drawn at Seton Highlands Hospital. The hospital refused to cooperate, despite the warrant, because the suspect would not give medical consent. Greg Hartman, Senior Vice President of the Seton Family of Hospitals, noted “There is a conflict in state law. There are other situations where it is questionable whether a licensed hospital can draw blood from a person without an order from a qualified practitioner to draw blood or consent is obtained directly from the suspect without coercion.”
Also in 2008, the Llano Memorial Hospital refused to draw blood from a DWI suspect, despite a warrant, because the suspect, Eric Bradley Gegogeine, did not give medical consent. Gegogeine refused to allow the nurse at the hospital to draw his blood after being brought in by arresting officers. The nurse and hospital, in turn, refused to forcibly restrain him and withdraw his blood. In January 2009, Gegogeine was arraigned on contempt of court charges for refusing to abide by the warrant and allow a blood sample to be taken.
While the warrant system was having its problems, Texas lawmakers enacted SB 328, which “Requires a peace offi-cer to require the taking of a specimen of the person’s breath or blood under certain circumstances if the officer arrests the person for an offense under Chapter 49 (Intoxication and Alcoholic Beverage Offenses), Penal Code, involving the operation of a motor vehicle or a watercraft and the person refuses the officer’s request to submit to the taking of a speci-men voluntarily....” Among other provisions, the bill gives law enforcement the ability to forcibly draw blood from DWI suspects without a warrant.
To provide some comfort to hospitals and health care providers, the bill states “that if the blood specimen was taken according to recognized medical procedures, the person who takes the blood specimen under this chapter, the facility that employs the person who takes the blood specimen, or the hospital where the blood specimen is taken is immune from civil liability for damages arising from the taking of the blood specimen at the request or order of the peace officer or pur-suant to a search warrant as provided by this chapter, and is not subject to discipline by any licensing or accrediting agency or body.”
The bill’s language encourages the health care provider or facility to break with their professional medical ethics. If they do violate medical ethics, the state gives them immunity. However, many medical practitioners and facilities do not see the professional code of ethics as waiveable or negotiable. It is interesting that the State of Texas has asked an entire profession to violate its own longstanding ethical rules and regulations. Ironically, the American Medical Association is only two years younger than the State of Texas. SB 328 was signed into law and became effective on September 1, 2009
Due to the tension between Texas law and medical ethics, law enforcement found it was easier to simply conduct blood draws themselves, and Houston’s Police Department encouraged its officers to become trained in drawing blood from suspects. The first seven officers began training by first using artificial limbs and then sticking needles into each other’s arms. To fulfill the required clinical blood draws for the course curriculum at Lone Star College, they trained at the psychiatric ward in the Jester IV unit. The officers received permission from the University of Texas Medical Branch (UTMB), which administers health care in the Texas prison system, to draw blood from prisoners at Jester IV.
In a statement, UTMB noted that the “Correctional Managed Care program has an agreement with Lone Star College involving its Law Enforcement Phlebotomy Program. The participating Houston police officers at the units were there as part of the Lone Star College course they were taking. Having blood drawn is part of the standard intake process at TDCJ and offenders were given the option of having a police officer or staff phlebotomists perform the procedure. All of the of-fenders involved chose to allow the police officers to do the procedure.” In addition, Houston Police Department Executive Assistant Chief Tim Oettmeier said the training was conducted within a “validated, certified training program.”
Despite the defenses offered by police officials and UTMB, the practice of training law enforcement in medical procedures by using prisoners as test subjects is very problematic. The officers were privy to inmates’ private medical informa-tion and were not trained or certified in the Health Insurance Portability and Privacy Act (HIPAA). HIPAA, a federal law, imposes strict requirements on medical personnel regarding patients’ privacy and the confidentiality of their medical in-formation.
The Lone Star College enrollment application for the phlebotomy program requires students to attest that they “have participated in training regarding the privacy and security provisions of HIPAA.” Upon inquiry, an official from Lone Star College stated in an e-mail that “Our phlebotomy students are not required to take the HIPAA training .... Our program does not require the officers to take HIPAA training.”
In essence, without proper training, officers do not understand what is privileged and private information. Many times law enforcement officers are given exemptions under HIPAA during the course of their law enforcement duties. However, in this case the officers were not in their field of duty but were being trained as health care workers to draw blood from suspects. Lone Star College should have required officers in the phlebotomy program to undergo HIPAA training; other-wise, without compliance with HIPAA, the officers could have shared prisoners’ private medical information with prison staff – information that might be used maliciously.
Also, according to Houston civil rights attorney Randall Kallinen, “What you have there is sort of a group of people [prisoners] who can be very easily coerced into doing things that aren’t good for them. They want to please their captors.” UTMB should have ensured that proper informed consent was obtained from prisoners at Jester IV. UTMB noted that the prisoners chose the officers-in-training over medical technicians to do blood draws; however, informed consent in the medical context means obtaining a patient’s voluntary, autonomous authorization to proceed with a proposed procedure or treatment.
Further, the mental capacity of the patient must be considered when obtaining informed consent. In a psychiatric ward, such as at Jester IV, diminished capacity is a concern. That did not stop UTMB from allowing the officer trainees the opportunity to practice on prisoners, though. As Kallinen noted, informed consent must not be coerced. “This type of behavior on psychiatric inmates is very, very unethical,” he said. It seems unlikely that prisoners at Jester IV would make the decision to choose an offi-cer to draw their blood because they wanted to help train law enforcement. If the prisoners gave consent because they felt they would be punished for saying “no” or rewarded for saying “yes,” then they were coerced into giving consent.
The phlebotomy training program was discontinued by Houston Mayor Annise Parker in April 2010, and she issued the following statement: “While I applaud the out-of-the-box thinking that led to this idea, I believe it went too far. I cannot support taking our officers off the street either to draw blood or for deployment in this matter. Of course, drunk driving is a serious problem that we must work together to eradicate, but there are already mechanisms in place to determine whether a motorist is driving under the influence. Additionally, if we choose, there is the option of contracting with civilian professionals to draw the blood.” By canceling the program, the city reportedly lost $4,000 in expenses paid to train the officers.
Despite the provisions of SB 328 and assurances by law enforcement officials, medical practitioners must maintain an ethical code of conduct when providing or overseeing medical procedures. Unfortunately, there will still be some hospitals or practitioners willing to forcibly restrain DWI suspects to withdraw blood without their consent. Additionally, the use of prisoners for medical training is complicated by many ethical issues. Therefore, institutions like UTMB and Lone Star Col-lege should review, update and enforce their ethical practices when providing medical services to people who are incar-cerated.
Sources: KPRC (Houston), KXAN (Austin)
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