A disturbing video surfaced on social media last week of a nurse in Utah being arrested for refusing to allow police to draw blood from an unconscious patient. The video, captured on a police body camera, shows Alex Wubbels, a burn unit nurse, calmly explaining to police that she could not take blood from a patient who had been injured in a deadly car accident. Due to her refusal, she was pulled outside the hospital and placed in handcuffs.

You can watch the video here:

http://www.cnn.com/2017/09/04/health/utah-nurse-police-encounter/index.html

Healthcare providers are placed in a difficult position when providing medical care to those who are the subject of a police investigation. While they may want to cooperate with law enforcement, they must also consider the privacy interest of the patient. Those unconscious or physically unable to consent to a demand for a blood sample are at the mercy of health care providers in ensuring that their rights are protected while in the hospital.

Section 8 of the Canadian Charter of Rights and Freedoms protects the privacy interests of individuals from an unreasonable search and seizure. A seizure occurs when the state engages in a non-consensual taking of something over which an individual has a reasonable expectation of privacy. Canadian Courts have found the non-consensual taking of blood a very serious breach of an individual’s section 8 Charter rights.

What responsibilities do Canadian healthcare providers have when faced with a demand for a blood sample from law enforcement officials?

A blood sample demanded by a police officer can only be taken in the following circumstances:

1. The patient consents to allow the blood alcohol sample and the patient is capable to give a valid consent, or

2. The patient refuses to consent and a police officer presents a warrant, or

3. The patient is unable to provide consent by reason of physical or mental condition and a police officer presents a warrant.

Essentially, the patient must provide consent to the taking of blood sample or the police officer must provide the healthcare provider with a warrant authorizing the taking of a sample. Were the police to demand a blood sample where no consent has been provided by the patient and no warrant has been presented, the healthcare provider cannot provide police with a sample. By doing so the healthcare provider would be violating the patient’s section 8 Charter rights. Further, the healthcare provider is not guilty of an offence under the Criminal Code by refusing to take a blood sample from a patient.

It is important to note that there is no unreasonable search and seizure when a hospital personnel takes a blood sample from an accused as a way to treat him or her. If that sample is later turned over to the police as a way to receive a search warrant or arrest it is often legal and not seen as a breach of charter rights. However, it is important to have the proper legal team in place, as situations vary. Each case is unique and it is imperative that you have the right warriors on your side.

Please contact us today if you feel your rights have been violated by the healthcare system.

519-657-1LAW (1529) or info@millarslaw.com