Diminished Capacity, Protective Custody, and Refusing Aid

Following up on yesterday’s post and discussion with Michael Morse and Rescuing Providence, the question has been posed about the legality of using police officers to take people with diminished capacity into custody as a way to authorize us to treat and transport them against their will.

There is a lot of good, down to earth advice we come across in the fire and EMS communities. Having been a firefighter for ten years before I started law school, one of the things I focused on in my studies was understanding the legal underpinnings of that down to earth advice.

We have probably all been taught at one time or another that police officers have the authority to take people into custody, and authorize their treatment. Could the solution to the dilemma we face with a patient with diminished capacity be that simple? Could it be that in a close case we simply need to defer to the other guys/gals in blue? Ahhhhh…… it’s a bit more complicated than that.

All states have laws that authorize a police officer to take a person into “protective custody” when they are deemed to be unable to care for themselves, a risk to themselves, or are otherwise incapacitated. A few states limit the protective custody power to people who are intoxicated, but most states do not impose such a limitation.

Once a person is arrested or is taken into protective custody, a police officer has a legal duty to protect the safety of his/her prisoner. In addition, states universally have laws that require all persons to comply with the lawful orders of a police officer. Combining those two laws, a police officer has the authority to direct us to take a person in their custody to a medical facility against that person’s wishes.

However, that is the extent of the officer’s authority. The officer cannot override the patient’s right to consent or decline treatment. For example, a police officer cannot order us to start an IV or push meds over a prisoner’s objection. Nor could the officer order an ER physician to treat a patient against the patient’s will. That would require an independent determination by the medical provider that the patient lacks capacity.

So what is the advantage of using a police officer’s power to place someone into protective custody?  By using a police officer to take someone into protective custody, we are exchanging our determination that a patient lacks mental capacity, for the police officer’s determination that the patient lacks capacity and needs to be taken into protective custody. In my mind there is no advantage – other than perhaps having an additional witness to the patient’s state of mind.

Of course if the patient is violent or resists, the involvement of police is invaluable. In some cases, a patient may be more compliant if the police officer orders them to be transported, although the opposite can also be true. But strictly from a legal perspective, a police officer has no greater authority to order treatment for a person in protective custody than otherwise exists. It still comes down to our determination of whether or not the patient is capable of understanding the risks of declining aid and the benefits of accepting aid, and making a voluntary decision.

And now for a brief commercial: The 2nd Edition of Legal Considerations For Fire and Emergency Services is due to be released on June 15, 2011. The 2nd Edition adds an entire chapter on EMS related issues ranging from what we are talking about here – to DNR orders, HIPAA and medical confidentiality. It also addresses many of the hottest legal topics facing the fire service, including digital imagery, social media, grooming and tatoos, along with updated cases including the US Supreme Court decision in Ricci v. DeStafano (the New Haven case) and an overview of the ruling in Lewis v. Chicago. For more info.