No doubt most subscribers to this blog have seen the video of a Salt Lake City, Utah, USA police officer arresting a nurse for refusing to take blood from an accident victim for, we infer, drug and alcohol testing. If you haven’t seen it, you can see it here along with details of the story – http://www.abc.net.au/news/2017-09-02/nurse-assaulted-refuses-blood-be-drawn-from-unconscious-patient/8865988 or if you prefer https://www.facebook.com/actdottv/videos/2059331077620429/.

I wasn’t inclined to comment as the issues are well canvassed in the press but it was sent to me along with a question of the relevant Australian law.

Using NSW as an example, testing for drugs and alcohol is mandatory for any person involved in a motor vehicle accident. It doesn’t matter whether you were the driver, a pedestrian a cyclist or whether the police think you were at fault or not (Road Transport Act 2013 (NSW) s 114 and Schedule 3).  Relevantly cl 11 of Schedule 3 says:

(1) Any medical practitioner by whom an accident hospital patient is attended at a hospital is under a duty to take a sample of the patient’s blood for analysis as soon as practicable.

(2) The medical practitioner is under a duty to take the sample whether or not the accident hospital patient consents to the taking of the sample.

(3) If there is no medical practitioner present to attend the accident hospital patient at the hospital, the blood sample is to be taken by a registered nurse who is attending the patient and who is accredited by a hospital as competent to perform the sampling procedures.

However, a sample need not be taken (cl 2):

(a) if the person has been admitted to hospital for medical treatment unless:

(i) the medical practitioner in immediate charge of the person’s treatment has been notified of the intention to make the requirement, and

(ii) the medical practitioner does not object on the grounds that compliance with it would be prejudicial to the proper care or treatment of that person…

It follows that at least in NSW and subject to cl 2, above, a doctor can not only take a blood sample, the doctor must take a blood sample.   (Without checking the legislation in each jurisdiction, we can infer similar rules apply in the other Australian jurisdictions).

In the US video the nurse is seen reading the agreed hospital and police protocols which say that they can only take blood if the patient consents, is under arrest or there is a warrant authorizing the sample to be taken.  Those requirements simply do not apply in Australia where the patient was a driver, rider or pedestrian involved in a vehicle accident.

In commentary I’ve seen about this video some people have referred to the concept of ‘implied consent’ as authorising taking blood.  Whether the justification for treatment of the unconscious is implied consent or necessity it could not justify taking blood for law enforcement purposes.  The principles of necessity, applicable in Australia, is that treatment may be given in the best interests of the person.  Taking blood for forensic purposes is not ‘treatment’. Further it may not be in the best interests of the person. It may be, of course, if the sample proves a zero-blood alcohol or drug content but not if it shows anything other than zero. (I recognise that for most drivers a blood alcohol content of less than 0.05 is not an offence, but it can make dealing with insurers more difficult; and it is an offence to drive ‘under the influence’ of alcohol or a drug regardless of the recorded level (Road Transport Act 2013 (NSW) s 112)).

The matter in the United States is further complicated by the presence of the 5th amendment to the US Constitution – one of the rights in the US Bill of Rights.  The 5th amendment says, relevantly ‘No person … shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law …’  I’m not an expert on the US Constitution but I would suggest that taking blood for the purposes of determining the level of drugs or alcohol in the person’s blood, with the expectation that if there is a detectable amount this may be used ‘in a criminal case’ is to compel the person to be a witness in their own cause and is further a deprivation of liberty without due process.  One can see therefore why the nurse in the video referred to the need for either consent, a warrant (or court order) or an arrest.  Where there is a warrant or police have arrested the person then they must already have reasonable grounds to suspect (or to use the US phrase, ‘probable cause’ to suspect) that the person has committed an offence.  Where they don’t have that ‘probable cause’ taking blood to find out if an offence has been committed is ‘fishing’ for evidence and clearly not allowed.  The 5th amendment, of course, has no application here in Australia.

Conclusion

The situation seen on this video is unlikely to arise in Australia as the hospital would have taken the victims blood for testing. And hopefully police in Australia (and one hopes the US too) actually know the law and know they can’t arrest people for not doing what they’re told particularly when they’re being told to do something unlawful.

It is interesting to note that at times on this blog people seem to think that the police can simply exempt people from the law, or if the law says ‘x’ it’s ok to ‘y’ if a police officer directs or authorises ‘y’.  That is not the case and is the antithesis of the rule of law as this officer has, according to news reports, discovered.