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December 20, 2013

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Steven Lubet

It is worse than ironic that the physicians were evidently willing to proceed so far on the say so of a border agent. One hopes:

(1) that medical societies and licensing authorities will weigh in on this sort of conduct, setting ethical limits on physician participation in invasive searches; and

(2) that law enforcement agencies will be required to maintain a log of false positives, so that unreliable canines will be retired from service.

alta charo

From the Code of Ethics for Emergency Physicians (Amer. College of Emergency Physicians) (see toward end of excerpt for comment about police):

Virtues in emergency medicine

As noted above, the emergency department is a unique practice environment with distinctive moral challenges. To respond appropriately to these moral challenges, emergency physicians need knowledge of moral concepts and principles, and moral reasoning skills. Just as important for moral action as knowledge and skills, however, are morally valuable attitudes, character traits, and dispositions, identified in ethical theory as virtues. The virtuous person is motivated to act in support of his or her moral beliefs and ideals, and he or she serves as a role model for others. It is, therefore, important to identify and promote the moral virtues needed by emergency physicians. Fostering these virtues can be a kind of moral vaccination against the pitfalls inherent in emergency medical practice. Two timeless virtues of classic Western thought have essential roles in emergency medicine today: courage and justice.

Courage is the ability to carry out one’s obligations despite personal risk or danger. The courageous physician advocates for patients against managed care gatekeepers, demanding employers, interrogating police, incompetent trainees, dismissive consultants, self-absorbed families, and inquiring reporters, just to name a few. Emergency physicians exhibit courage when they assume personal risk to provide steadfast care for the violent, psychologically agitated criminal or the infected intravenous drug-user.

Michelle Meyer

Hi Steven,

On the first issue, I agree that clinicians asked to perform series of invasive searches need to think about the ethics of what they're doing rather than "just following orders." (I tend to think that's because they're human beings dealing with other human beings, rather than because they have special duties as doctors; that is, law enforcement agents should be thinking about the ethics of what they're doing, too, and exercise some discretion, notwithstanding whether the 4th Amendment allows their conduct or whether they're immune from suit. But that's a longer discussion about the concept of role morality.)

Anyway, the American College of Emergency Physicians has weighed in on the ethics of doctors performing blood alcohol content (BAC) tests for law enforcement (see http://www.acep.org/clinical---practice-management/bac-reporting), and there is also state law on point (with, e.g., PA motor vehicle law providing that clinicians and their institutions may not refuse to perform or return the results of BACs, while other states prohibit law enforcement from compelling clinicians to provide BAC results). See generally http://www.nhtsa.gov/PEOPLE/injury/alcohol/BAC-Testing/pages/4StLawsPolicies.htm.

But I'm not aware of any professional guidance or state law governing the role of clinicians in conducting cavity searches for law enforcement, and apparently their time is past due. Many ER departments do have institutional policies on this matter, though, including the University Medical Center of El Paso. According to the complaint, the Center's formal policy is not to perform such searches unless there is either consent from the patient/suspect or a warrant. The complaint speculates about why that policy wasn't followed here.

On the second issue, yes, we should certainly be collecting data about individual K-9 reliability, and law enforcement should retrain or retire K-9s (or handlers) that fail to meet standards of reliability. Most police depts. will say that that's already done. Part of the rub is how we define and measure sufficient reliability. See generally http://www.americanbar.org/content/dam/aba/publications/Jurimetrics/summer2013/gastwirth.authcheckdam.pdf and http://www.georgemasonlawreview.org/doc/14-1_Myers.pdf. In any case, my point was that however we resolve these questions about when an individual K-9 has been sufficiently reliable in the past to justify a search (legally or ethically), we should leave room for the very real possibility that even reliable K-9s will be wrong sometimes, and update our beliefs about the presence of contraband in light of the new evidence that fruitless cavity searches constitute.

prior probability

whatever happened to the "do no harm" principle?

Michelle Meyer

PP, "first do no harm" is an unworkable principle for medicine (and not actually used). Many legitimate aspects of medicine involve harming the patient in order to achieve net benefit. Something like "always seek the best overall outcome for your patient," i.e. a fiduciary model that incorporates appropriate risk-taking, is closer to a workable principle, though even there we run into difficulties with transplant teams procuring organs from the living (which can only benefit the donor emotionally, if at all, and not medically). The broader issue you raise is that the state has legitimate law enforcement (and other) ends which might be more effectively -- and humanely -- carried out with the help of medically-trained people than without that help. Given the choice between a cop and a doctor giving me the speculum treatment, I'll take the doctor (or at least a "schmoctor," see Arthur Isak Applbaum, Ethics for Adversaries: The Morality of Roles in Public and Professional Life (Princeton U. Press 1999), esp. chap. 3, “Doctor, Schmoctor: Practice Positivism and Its Complications”). (Similar considerations arise with lethal injection and, to a more complicated extent, participation in "enhanced interrogation.") I think the more pressing issue is whether, when, and why anyone should conduct cavity searches.

But I have to run to catch my flight back to the U.S. from France and can't defend that position now. I'll be largely unable to respond to comments -- or rescue them from the spam filter, sigh -- for the next day or two.

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