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.
Australian Emergency Law 
I have been a ‘fan’ of police in general over the past several years ( for a variety of reasons – such the murder of people living with Mental Health illness by police … )
Needless to say, I shook my head when watching that particular case footage.
I’d like to point out, that a ‘doctor’ rarely takes blood specimens in the ED. It’s the senior RNs, accredited in venepuncture, who would most likely be acquiring the specimen.
I was once arrested by detectives whilst on duty. ‘Suspicion of Murder’ !!!
First on scene of an inpatient suicide ….
Having commenced CPR, I was advised by police, that I’ve ‘interferred with a deceased’. Bullsh*t I thought. Police said I need to make a Statement. Fine, tomorrow, after my Night Shift is finished. No, NOW !!
Well, sorry, but no.
You are now under arrest. You ARE coming with us to the Station. NOW !!
I didn’t object any further, and two hours later, I had to walk back to the hospital from the cop shop.
Case didn’t even go to the Coroner’s Court.
One of my ‘great’ experiences in the marvelous profession of Nursing …..
Ugg !!
I meant I HAVE NOT been a fan of police …..
I looked more closely into this about 10 years ago, so this may be out of date, but at that time:
– NSW was rather unique in being the only (or maybe almost the only?) state that compelled a doctor to perform a blood test. The other States allowed but did not compel.
– The legislation in Victoria only allowed the first treating doctor to take the blood. Not a nurse, and not the second doctor. This was later changed to any doctor, but still blood taken by a nurse is probably inadmissible.
Another installment in this story- “Utah police officer Jeff Payne, who dragged screaming nurse Alex Wubbels, is fired“, ABC News (Online) 11 October 2017.
does a doctor take blood for analysis from crash patient in hospital emergency in sa- not clearly answered- and would it be malpractice if they don’t take and test blood before commencing treatment
The Road Traffic Act 1961 (SA) s 47I says “If a motor vehicle is involved in any accident and, within eight hours after the accident, a person apparently of or above the age of 10 years who suffered injury in the accident attends at, or is admitted into, a hospital for the purpose of receiving treatment for that injury, it is, subject to this section and Schedule 1, the duty of the legally qualified medical practitioner by whom that patient is attended to take, as soon as practicable, a sample of that patient’s blood (despite the fact that the patient may be unconscious) in accordance with this section.”
The section says that the sample must be taken ‘as soon as practicable’. It does not say the sample has to be taken ‘before commencing treatment’ and that would seem obvious. Working to save the person’s life may would be more important that stopping to take a sample for the purposes of the Road Traffic laws.