Shifting Liability?
As a result of the current economic crisis that the country is experiencing, more often than not we hear about city, county and state governments cutting back services and laying off staff. The layoffs have affected police departments much to our dismay.
In healthcare security we often find ourselves working closely with law enforcement, whether it is because of the increasing violence in healthcare, or the increasing numbers of professional patients seeking narcotics. Both types of situations are on the rise.
Healthcare Security Liability Concerns
Another problem in the rise is the number of people presenting in Emergency rooms across the country, whether it is a self admit or when law enforcement brings them in, for a mental health evaluation. When a person presents on their own, and they either show signs of self harm, or speak about it during triage, they are often times assigned a security officer to observe them. This is due to the risk that they present to themselves and staff. Most medical centers have found this to be a routine part of their security operations. However, when law enforcement brings in a person for evaluation, things are much different, and in many cases can be a transfer of liability if you allow it.
Police Shifting Liability
In most states, peace officers have the legal right to take a person into their custody and transport them to a facility to receive such an evaluation. Normally the police refer it to a 24-72 hour hold, and they complete paperwork once at the hospital to state their reasons for holding the person. It is common for a medical doctor, and/or a mental health worker, to screen the person to see if they meet the requirements to be held. If so, they are placed into a designated mental health facility.
Where the problem comes into play with this type of incident, is more often than not the police are just dropping off the patients at the ER and the police officer will leave. In most cases they will complete the paperwork, but not in all cases. By doing so, they are in affect transferring their liability to the medical center, by virtue that the hospital security normally will step in and take over the control of that patient. However, the security officers in many cases will not have any authority to physically restrain that patient if they attempt to elope unless the mental health evaluation has been completed and the doctor, under direction of the courts, and have deemed that patient a danger to themselves or others. In most states once that has been met, physical force can be used to stop them from leaving.
There have been cases where security officers have faced legal problems due to physically stopping a person, or restraining them, because the security officer had no right to do so. There was a recent case in Redding, California in which a sheriff deputy presented a prisoner at a medical center for an evaluation, and the deputy left and went outside. As soon as that deputy left, the prisoner, who was not restrained, attacked staff. During the attack the prisoner bit off a finger of a nurse who was trying to restrain the patient with the help of others. During the news stories that followed this attack, the sheriff’s spokesperson said, “Once they enter a hospital, they’re the hospital’s responsibility.” He went on to say, “We’re there to facilitate a safe and secure handoff.”[1] The medical center in question did not have security, and according to the same news story the sheriff’s department did not follow their own policies. Needless to say, a civil suit has been filed.
Who Owns the Liability Risk?
So is law enforcement transferring their responsibilities and liability to your hospital? In many cases the answer is yes. Are you accepting that transfer without question? Unfortunately many hospitals are, just due to their lack of actions to correct this. Doing nothing can be viewed by the courts and plausible acceptance of the patient, along with their risks.
When doing some research of this subject, numerous hospitals in California were contacted to find out how they dealt with this issue. Disturbing were the results, as many hospitals say they allow it to happen, and most did not know what they should be doing, or that they could even address the problem.
In most cases law enforcement agencies do this due to needing their officers on the street due to call volume, and staff shortages due to layoffs. It is reasonable for them to have such goals, but in many cases they too do not understand that their liability is not absolved by just leaving, even if the medical center has security. This problem is not just a California problem; it is a problem all over the country. The author of this article experienced the same problem in the Midwest, at a fairly large medical center, and worked it out with all law enforcement agencies to resolve this problem and soon after other medical centers made the same changes to reduce their risks.
Hospital Security Risk Avoidance and/or Mitigation
So what does your organization do? If you use force to stop someone from leaving that does not have a legal hold placed on them, under what legal authority do you do so? Do you allow the police to just drop off a patient that they presented for an evaluation? I asked the same questions of numerous other hospitals and the answers were surprising. I heard that some hospital hold everyone, and they will use all the force needed. When asked under what legal authority they were doing so, they replied that they did not know. Still others said that they let anyone leave that wants to, even if they are a danger to themselves or others. They will just call the police and give a direction of travel. However, the police will just bring the person back and the process starts over again.
Suffice it to say that the case in Redding may set case law and give everyone a clearer direction in which to follow. One can only hope. If you have had similar incidents such as the one in Redding, please send me an email with the details. I would like to conduct a case study of this problem, and compile information for others to use in their quest to address this issue within their organization.
[1] The Record Searchlight Online, Redding.com, 1/12/09
