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Bioethics Forum Essay

Borderline Disorder: Medical Personnel and Law Enforcement

Some recent news raises serious concerns about the relationship between medical professionals and law enforcement. Not being investigative journalists, we cannot speak to the accuracy of media reports or documents submitted to the court. However, if the truth even roughly resembles the claims, the situation is extremely troubling.

The American Civil Liberties Union recently filed a federal lawsuit on behalf of a 54-year old New Mexico resident, “Jane Doe.” The defendants are the board of managers of El Paso County Hospital District, the University Medical Center of El Paso, two physicians, and agents of the U.S. Customs and Border Protection (CBP). The lawsuit alleges that on December 8, 2012 Ms. Doe was returning from a visit in Mexico when an agent of CBP informed her that she had been chosen for increased inspection and secondary screening.

After frisking failed to produce any contraband, agents sent her back in line to finish customs procedures. According to the complaint, a drug-sniffing dog, possibly prompted by a CBP agent, lurched at Ms. Doe. Agents then led her to a private room where she was subjected to further searches, including visual examination of her anus and vagina with a flashlight and the insertion of an agent’s finger into her vagina. Throughout the search, Ms. Doe never expressed consent, nor did the agents present a warrant.

Ms. Doe was then transported to University Medical Center of El Paso. There, she was handcuffed to an examination table, and instructed to ingest a laxative. The resulting bowel movement was observed by CBP agents and two physicians. When no contraband was found, the doctors ordered an x-ray. The results showed no evidence of drugs.

With the examination room’s door open to the view of nurses and passersby, one of the doctors “barked an order that Ms. Doe spread her legs.” The doctor inserted a speculum into Ms. Doe’s vagina and examined her interior cavity. A subsequent bimanual cavity search revealed no evidence of drug smuggling. The doctor proceeded to perform a rectal examination, probing Ms. Doe’s rectum with his finger. Again, CBP and the doctors found no evidence of drugs hidden in Ms. Doe’s body. Finally, the doctors ordered a CT scan of Ms. Doe’s abdomen and pelvis. The results showed no evidence that Ms. Doe had ingested any drugs.

Throughout her traumatizing experience, Ms. Doe presented no medical symptoms indicating need for examination or treatment. Neither was any medical reason given for the examinations. She consented to none of the procedures. There was no search warrant. After the negative results of her CT scan, CBP agents offered Ms. Doe a choice: sign the consent form or be billed for the medical procedures. Ms. Doe refused, and she received a bill from the University Medical Center of El Paso for more than $5,000. According to the complaint, Ms. Doe continues to experience symptoms consistent with those of sexual assault victims.

Lest we think Ms. Doe’s experience was an isolated incident, her complaint alleges that invasive searches done with the cooperation of medical staff at the University Medical Center of El Paso on behalf of CBP have occurred frequently. Moreover, a 2013 lawsuit filed by David Eckert of Lordsburg, N.M. alleged that law enforcement officers with the assistance of medical staff at Gila Medical Center (150 miles from El Paso) performed forced cavity searches on him. Like Ms. Doe, Mr. Eckert exhibited no symptoms suggesting a need for medical intervention, and he was subjected to invasive physical examinations (sedation and a colonoscopy), observed bowl movement (induced by three enemas), and two x-rays, all without consent. No contraband was found inside Mr. Eckert and he, too, was presented with a bill from the hospital for services rendered. In Mr. Eckert’s case, a physician at one medical center had refused to cooperate on ethical grounds. The CBP simply brought him to a different facility.

Cooperation between health care providers and law enforcement agents is not new. Many jurisdictions mandate health care providers to report gunshot wounds, injuries consistent with abuse, and evidence of child abuse. Nonetheless, the two cases above require hospital staff to cross an entirely new threshold. Invasive procedures ofnotherapeutic or diagnostic benefit to the individuals were forced on them in the name of public safety.

In Ms. Doe’s case, waiting to obtain a warrant would not have jeopardized her well-being or the case against her. Her stool could have been collected without involvement of medical personnel. Even so, ethically, with respect to the actions of medical personnel, a warrant does not override refusal of medical procedures when the individual is a competent adult who poses no threat to herself and who can be kept from posing any hypothetical threat to others without medical intervention. (The blogger at PHIprivacy.net argues similarly, but seems to allow that suspects in custody fall under the category of patients, which we hold was not the case in these instances.) Medicine’s status as a self-regulating profession gives physicians a way of objecting: what the CBP requested is not allowed by the profession. It was rape.

To be fair, health care providers are often unaware of their legal obligations with respect to assisting law enforcement agents. Asymmetric power dynamics create a relationship that discourages refusals to cooperate, whistle-blowing, and the safeguarding of the suspects’ well-being. Uncertainty about the rights and duties of health care providers in the face of orders from law enforcement risks undermining the trust we have in health care providers. That the power imbalance between law enforcement and medical professionals mirrors that between medical professionals and patients is all the more reason for health care providers to safeguard their professional autonomy in the face of state demands.

When medicine deviates from its goal of furthering patients’ health care interests (as in some experiments on human subjects), it runs the risk of undermining patient trust. Only through rigorous and public adherence to professional standards of ethics can health care providers engender the atmosphere of trust indispensable to both professional autonomy and proper patient care.

Ms. Doe’s and Mr. Eckert’s lawsuits show the desperate need for professional organizations to outline legal and moral boundaries between law enforcement and medicine. Physicians as a group have successfully refused the requests of the criminal justice system in the past by not participating in state-sanctioned executions. We believe this establishes a salutary precedent that ought to be extended to invasive medical searches against a patient’s will.

Dien Ho, PhD, is an associate professor of philosophy and health care ethics; Kenneth A. Richman, PhD, is a professor of philosophy and health care ethics; and Mark Bigney, MA, is a faculty associate at MCPHS University, Boston.

Posted by Susan Gilbert at 04/03/2014 10:52:55 AM |

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