1. Legal Aspects of Law Enforcement Interviews of Hospital Patients David M. Siegel, J.D. Professor of Law Co-Director, Center for Law & Social Responsibility New England School of Law November 14, 2009

2. Hospital interviews by law enforcement pose basic conflicts 1989: Facing “crack babies,” Med.Coll. of SC adopts “Policy M7.” 2000: US Supreme Court amicus briefs AMA: “[P]olicy forces physicians to compromise their commitment to patient confidentiality,... requiring [them] to act as agents of law enforcement […] undercuts [their] ethical obligation to act as patient advocates and protectors.” [Supporting neither side] APA: “[P]olicy depended at its core on compelling health care professionals to abandon their duties to patients.... [its] stated aim... [required] a broad suspension of ethical obligations- including [...] core duties to deal honestly with patients, to safeguard their confidences, and to advocate on patients' behalf.” [Supporting patients]

3. Access, Disclosure & Admissibility Patient access enables interviews Information disclosure affects interviews Later admissibility affects conduct of interviews

4. Little direct regulation of access Mandatory law enforcement access to patients only with Court order (search/arrest warrant) Crime or emergency on facility premises Law enforcement access as all others’ Treating MD and facility control access

5. Indirect regulation of interviews HIPAA permits disclosures to “law enforcement” Pt is suspected abuse, neglect or d/v victim To identify and locate persons Crime victims (not abuse, neglect or d/v) Emergency care (not abuse, neglect or d/v) Also: specific wounds/injuries (state mandated reporting), legal process, decedents, crime on premises Interview conduct affected by later admissibility Federal and state constitutions Conflict with professional obligations (e.g., AMA)

6. HIPAA disclosures: Pt suspected abuse, neglect, d/v victim Mandatory reporting of child abuse/neglect Adult pt reasonably believed abuse, neglect or d/v victim, if disclosure authorized by law, AND MD believes necessary to prevent serious harm to pt or other potential victims, OR Pt incapacitated, Police represent information not intended to be used against victim, AND Immediate enforcement activity depending on disclosure that delay would materially and adversely affect. [45 CFR 164.512(b)(1)(ii) & (c)(1)(iii)(A)&(B)]

7. HIPAA disclosures: For law enforcement purposes To Find Someone: Identifying info of person police seek Only name, address, DOB, POB, ht, wt, tx, injury, ABO type & rh factor Not DNA, dental, or tissue/fluid analysis Of Adult victim/suspected victim (not abuse/neglect, d/v) incapacitated or “other emergency circumstance,” AND police represent To determine violation by another, not for use against victim, AND Delay materially & adversely affect immediate enforcement activity, AND MD determines in prof’l judgment disclosure in best interests of victim. Reporting crime during emergency care (not abuse/neglect or d/v), if necessary to alert police to To nature, location or commission of crime, and Identity, description & location of perpetrator (even pt). [45 CFR 164.512(f)(1)(i), (f)(2)(i)(A-H) & (ii), (f)(3)(ii)(A-C) & (f)(6)(i)(A-C)]

8. HIPAA disclosures: To avert serious health/safety threat Consistent with applicable law & ethics, if MD believes in good faith Necessary to prevent/lessen serious & imminent threat to health/safety of anyone, and Disclosure is to one reasonably able to reduce threat, OR Necessary for police to ID or catch someone, Because pt admitted to violent crime reasonably believed may have caused serious physical harm to victim, UNLESS Pt made statement in treatment/counseling/therapy “to affect propensity to commit the conduct that is basis of the disclosure,” or in requesting txt/counseling/therapy. Or where it appears from all circumstances pt is escapee. [45 CFR 164.512(j)(1)(i)&(ii), (2)(i)&(ii)]

9. Legal effects on statements’ admissibility Privilege against self-incrimination (5 th Am.) Miranda warnings required for “custodial interrogation” Absent criminal charge, hospital typically not “custodial” Due process (5 th and 14 th Ams.) No “involuntary” or coerced statements Extensive police pressure, deception permissible Right to counsel (6 th Am.) No deliberate elicitation of statements without counsel Case must be past formal adversarial judicial proceedings

10. Legal effects on admissibility of physical evidence & identifications Physical evidence from patients Legality of searches & seizures “Reasonableness” (4 th Am.) and/or warrant Validity of consent Due process – “shock the conscience” Identifications using patients Invalid if unnecessary & suggestive (5 th Am.) Assessed under totality of circumstances

11. Police efforts at access v. MD’s therapeutic & confidentiality duties Duty to minimize harm from access? Prevent access without informed consent Ensure adequate warning of risks of consent Monitor & structure access to minimize risk Risk of confidentiality breach in access? Duty can be common law, statutory and professional Breach can taint later admissibility

12. Questions Can you consider or structure access without breaching confidentiality? What if HIPAA-sanctioned disclosure of suspected victim info leads police to decide victim is perpetrator? Can you observe interview without treating?

13. DisclosureHIPAA Disclosure Standard (45 CFR §164.512) Rept of specific wounds/injuries As legally required (reporting may be mandatory) [45 CFR §164.512(f)(1)(i)] By court order, grand jury subpoena, or civil/admin request Civil/administrative requests must be Relevant and material to legitimate law enforcement inquiry, Specific and limited in scope, De-ID’d info could not reasonably be used [45 CFR §164.512(f)(1)(ii)] Identifying info for one police seek Name, address, DOB, POB, SSN, ABO type & rh factor Injury type, tx or death date/time, and Marks, scars, tattoos, ht, wt, hair/eye color Not DNA, dental, tissue/fluid typing, samples or analysis [45 CFR §164.512(f)(2)(i)&(ii)] Adult incapacitated crime victims (not abuse, neglect, d/v) Law enforcement represents info to determine violation by another, not for use against victim, Immediate enforcement activity depending on disclosure needed that delay would materially and adversely affect, AND MD, using prof’l judgment, finds disclosure in victim’s best interests [45 CFR §164.512(f)(3)(ii)(A-C)] Discretionary Disclosures to Law Enforcement under HIPAA

14. DisclosureHIPAA Disclosure Standard (45 CFR §164.512) Child abuse/neglect(As mandated by law) To protect adult abuse/neglect or d/v victim or 3P’s MD believes, in exercise of professional judgment, necessary to prevent serious harm to pt or others [45 CFR §164.512(c)(1)(iii)(A)] Adult incapacitated abuse, neglect or d/v victim and urgent law enforcement need Law enforcement represents info not to be used against victim, and immediate enforcement activity depending on disclosure needed that delay would materially and adversely affect [45 CFR §164.512(c)(1)(iii)(B)] Reporting crime while providing emergency care (not abuse/neglect or d/v), if necessary to alert police to To nature, location & commission of crime, and Identity, description & location of perpetrator. [45 CFR §164.512(f)(6)(i)&(ii)] Discretionary Disclosures to Law Enforcement under HIPAA