You’re called to the scene of a medical emergency at a patient’s residence. As you enter the home, you find a patient with an altered level of consciousness on the couch in the living room. On the table next to the couch you find what appears to be illegal drugs and drug paraphernalia. What are your obligations under the law? Must you report the suspected illegal drug activity to the police? Can you report it?
First, be sure to check applicable laws in your state. Some states impose reporting obligations for certain types of injuries or conditions on EMS providers. For instance, some state laws require the reporting of any injuries incurred in the commission of a crime, and some of these state laws could be construed broadly enough to require the reporting of medical emergencies likely caused by illegal drugs. In most states, however, mandatory reporting laws covering EMS providers are narrower and typically require reporting of specific conditions, such as gunshot wounds, burns or child abuse. Since they vary so much, be sure to consult your state law and your agency’s legal counsel with regard to the types of reportable conditions in your state. Any mandatory report under state law is also permitted under HIPAA.
HIPAA is a key law that must be considered in assessing an EMS provider’s obligation to report suspected illegal activity by a patient. Of course, notifying the police of the suspicious drugs in the scenario above will certainly mean you would also be disclosing protected health information (PHI). Therefore, you can only use or disclose PHI to law enforcement in specific circumstances permitted by the HIPAA privacy regulations.
There is a rather broad provision of HIPAA that permits—but doesn’t require—healthcare providers to notify law enforcement about the commission and nature of a crime, the location of the crime, and the identity, description and location of the perpetrator of the crime. This provision is probably broad enough to encompass most good-faith reports of suspected criminal activity without violating a patient’s privacy rights. There are several other exceptions that permit (but again, don’t require) healthcare providers to release PHI to police, such as in response to a law enforcement request to locate or identify a suspect, to alert them to a death potentially caused by criminal activity, to provide certain information about a victim of a crime, or to lessen or prevent a serious and imminent threat to the health or safety of an individual or to the public. There are several other exceptions that permit disclosures of PHI to law enforcement in other specific situations. Visit the official HIPAA website for a complete rundown: www.hhs.gov/hipaafaq/permitted/law/505.html.
Remember: HIPAA deals with the use or disclosure of protected health information—not evidence. Say that you’re treating a patient and a suspicious baggie of what you believe to be illegal drugs falls out of the patient’s pocket. Some EMS providers have wrongly assumed that they can’t turn that baggie over to the police because that would be violating HIPAA. The suspicious baggie is evidence—not PHI—and should immediately be turned over to law enforcement. EMS providers shouldn’t take or maintain possession of any drugs or other illegal materials found during the course of duty if at all possible. Anytime you do have to transport illegal drugs or other articles with a patient, be sure to describe that material (including estimated quantities of illegal drugs) in your documentation and be sure to record the disposition of that evidence as well.
In most cases, reporting illegal drug use and other potential illegal activity is an option available to EMS providers but not a requirement. Some states may require it. HIPAA would, in most cases, permit such reporting, and remember, turning evidence of illegal activity over to the police is distinct from reporting patient information.