Unlike child abuse or gunshot wounds, most jurisdictions do not have a law requiring physicians to report intoxications to police authorities. Without reporting laws that override the patient’s rights of privacy, physicians should remember that they may not volunteer information about a patient without the patient’s permission. As with other forms of medical care, physicians may not do testing without the patient’s general consent. Physicians have the right and the duty to assert their patient’s right of confidentiality when questioned by police officers about the patient’s medical condition. If the physician’s testimony is legally required, the court can order the physician to testify; the investigating officer cannot.
Although the consent of the patient is required for any type of medical care, physicians usually do not think about obtaining consent for routine laboratory procedures such as blood chemistry or urinalysis. It is assumed that the patient and the physician use the general consent to care for these. In addition, the patient may refuse to allow the drawing of the blood or to provide the urine for testing. This type of nonspecific consent should not be used when testing for intoxicants. The legal problems that may arise from positive tests make it necessary for the physician to obtain a valid, specific informed consent from the patient before doing the test when the law enforcement authorities are requesting the results of the test.
If this testing is being done for medical reasons, the rules of consent are like those for any other medical procedure. If a patient is brought into the emergency room unconscious, the emergency exception to consent will apply. This does not allow the substituting of consent from a third party, such as a spouse or a police officer. It simply relieves the physician of the necessity of obtaining consent for emergency care. If the normal medical evaluation of an unconscious patient includes a drug screen or a blood alcohol level, these tests should be done and recorded in the patient’s medical records, just like a blood glucose or a skull X ray. They are part of the emergency medical care of the patient. Testing that is not necessary for the care of the patient may not be done under the emergency exception. If the physician does not normally do a blood alcohol level to evaluate an unconscious patient, then he or she should not include it at the request of a police officer.
If the patient is conscious and able to consent to medical care, then no matter how serious the medical condition may be, normal consent is necessary. A physician who wishes to do any testing for intoxicants must obtain the explicit consent of the patient if the testing is being done for law enforcement purposes. If the patient refuses to consent to such testing, the physician must respect the refusal even if it makes the care of the patient more difficult. A physician should never take a blood sample for a glucose level and do drug testing on the remainder to avoid the patient’s refusal of consent. If the physician believes that the refusal to test threatens the patient’s life, a court order may be sought for testing.
Physicians may order testing for intoxicants for purely legal purposes but should be cautious about doing so. Unlike having communicable diseases, substance abuse is both a public health threat and a criminal act. A physician has a duty to protect the patient’s confidences in criminal matters. The physician must comply with state laws on testing and reporting drug abuse but should fully inform the patient before the specimen is taken. The patient should be aware that there is no medical indication for the test and that the physician cannot know what the results will be. If the patient has the right to refuse the test, the consent should be in writing, signed and witnessed, and it should contain the name and identifying information on the officer requesting the testing as well as the patient. If the physician has reason to think that the consent is being coerced improperly from the patient, then he or she should not accept the consent or do the testing.