Originally published on the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics Bill of Health blog.
In 2012, a Jane Doe suspected of transporting drugs was detained by U.S. Customs and Border Protection (CBP) agents without a warrant, and brought to University Medical Center in El Paso, Texas. Medical Center personnel — under the direction of the law enforcement agents — performed an X-ray, CT scan, and cavity search before determining that the woman was not in fact carrying any controlled substances. A few months after suffering this traumatic — and possibly illegal — event, the woman received a $5400 bill from the Medical Center for the services rendered as part of the search.
While the woman was compensated to some extent — she settled lawsuits with University Medical Center and the CBP to the tune of $1.1 million and $475,000, respectively — her story, and stories like hers, raise important questions about the ways in which hospitals should (or shouldn’t) work with law enforcement to perform invasive searches.
It’s understandable why hospitals and medical professionals are inclined to cooperate with law enforcement requests for invasive procedures and cavity searches — law-abiding citizens often don’t want to obstruct law enforcement agents from doing their jobs. But in the course of bringing suit against University Medical Center, Edgar Saldivar of the ACLU of Texas noted that the hospital and many of its personnel didn’t know where the obligation to assist the CBP stopped. Many medical professional don’t know that — according to the CBP’s own Personal Search Handbook — they are under absolutely no obligation to comply with requests by law enforcement to perform cavity searches with or without a warrant.
Not only are hospitals and medical professionals not required to assist with invasive searches, but as the case of Jane Doe demonstrates, they can be liable if they help in instances where they shouldn’t. They aren’t agents of the state, and therefore are neither compelled to perform any actions pursuant to a law enforcement request or search warrant nor legally protected if they violate someone’s rights while assisting in the execution of such a request or warrant.
The potential for substantial liability alone should give hospitals pause when deciding whether to assist with a cavity search. But putting that aside, is this something that hospitals should be having their physicians and medical professionals do at all?
Medical professionals occupy a unique ethical space. We leave our lives in their hands, in part because we trust that they will act in our best interest as patients. We believe that their responsibilities to patients trump those to bottom lines or government agencies, and that’s why we dutifully consent to procedures when our dentists say we need cavities filled or our doctors say we need colonoscopies. The trust that physicians receive entails an ethical obligation to live up to those expectations. This is not to say there aren’t limits on the lengths to which doctors should go for their patients — I’ve written before on some of these limitations — but it’s not clear hospitals should be putting doctors in situations where they feel pressure to actively subvert the interests of those for whom they are caring.
This is not to say that physicians should never assist law enforcement with searches. There may be situations in which a hospital or medical professional could reasonably conclude that the suspect is better off at a medical facility under professional care than undergoing whatever alternative method of cavity searching the officers have in mind. At the end of the day, though, the person being searched is a patient, and hospitals and physicians should be sure that the procedures being performed are indeed in that patient’s interest, and not just a means to law enforcement’s ends. While cavity searches are not particularly dangerous procedures, all medical procedures come with risk, and subjecting a patient to that risk for the sole purpose of assisting with a law enforcement investigation may very well violate the “do no harm” ideals embodied in the Hippocratic Oath.
There are no black and white answers here, but one thing is clear: hospitals and medical professionals need to give this issue significantly more thought and attention. The ACLU’s experience with University Medical Center showed that its personnel were caught off guard — not knowing what their duties were to law enforcement or to the individual being searched, and not thinking about the possible ramifications of cooperation. As a result, they subjected an innocent woman in their care to a traumatic, violating experience and cost the hospital $1.1 million. Hospitals should be training their personnel for these situations. Doctors should know they have no obligation to assist with law enforcement searches, and both physicians and institutions should have carefully thought out their responses to such a situation before one presents itself.
No patient should ever have to worry about a physician in charge of her care violating her rights, and no physician should ever feel pressured to violate a patient’s rights in the name of law enforcement. There is a lot that hospitals can do to help prevent these situations from arising, protecting both their personnel and their patients. The millions of dollars they’ll also save avoiding lawsuits is just the icing on the cake.