Last July, Alex Wubbels, a charge nurse on the University of Utah's burn unit, refused to allow a police officer to draw blood from an unconscious patient in her care.1 The officer wanted the blood test to aid in the investigation of an accident, which involved a serious head-on collision, but the patient could not consent to the procedure, which had no clinical purpose. Wubbels was arrested, roughly placed in handcuffs, dragged out of the hospital, and forced into a police car. She was later released without charges.
The hospital's policy, cited by Wubbels when she refused to give the officer access to the patient, was legally correct and current, whereas the police department policy on which the officer was acting was outdated, based on procedures that had been ruled illegal in Utah in 2007 and had been ruled unconstitutional by the U.S. Supreme Court in 2016.2, 3 His behavior also ran counter to an agreement between the Salt Lake City Police Department and the hospital that had been reached more than a year before.4 Further, the rough manner in which the officer handled Wubbels during her arrest—shown by a body camera—sparked outrage among nurses and the public.
After the incident, Wubbels sought a dialog with Salt Lake City police and the Utah Department of Public Safety to address the problems leading to this incident but did not think that the discourse was productive and felt that her concerns were minimized and that she was being intimidated and blamed for the incident. Citing the lack of progress, Wubbels and her lawyer released the footage from the officer's body camera to the public,5 in which he described his treatment of her—“I physically drug her out of the ER”—and his understanding of the law. The video quickly received widespread attention. (Watch excerpts of the video released by the Salt Lake Tribune at www.youtube.com/watch?v=ExJDcDaXhJ8.) Since then, the officer making the arrest has been fired, and his superior, who authorized Wubbels's arrest and stalled negotiations after the incident, has been demoted two grades, to officer.5 In addition, the hospital revised its policies so that nurses no longer deal directly with officers and officers will not be present in patient care areas.6
The episode offers cautionary lessons, including the value of well-designed and current policies, negotiation and communication skills—in particular, deescalation; the police chief has since stated that officers will receive deescalation training—and maintaining a professional demeanor. The incident also draws attention to a number of ethical issues, including informed consent and nurses’ role when the purpose of interventions or interactions with patients are not predominately for the patient's benefit.
Informed consent. Our society places great value on individuals’ being free to make the decisions that determine the direction and style of their lives without interference—a right to liberty in thought and action—as long as that liberty does not impinge on the rights of others. This value is enshrined in medical ethics as the principle of respect for patient autonomy. Autonomy is the ability of individuals to make decisions for themselves and act with intention. The principle of respect for autonomy obligates nurses to honor patient decisions about treatment and lifestyle. Provision 1 of the Code of Ethics for Nurses with Interpretive Statements (Code of Ethics) from the American Nurses Association (ANA) states that “[t]he nurse practices with compassion and respect for the inherent dignity, worth, and unique attributes of every person.”7 Section 1.4 of Provision 1 states that the right to self-determination is an essential aspect of respect for patient dignity.7 As a principle of clinical ethics, respect for autonomy is more than merely accepting patients’ decisions and requires the nurse to actively enhance patient autonomy—for example, by providing information related to treatment decisions and assisting patients with “weighing the benefits, burdens, and available options in their treatment, including the choice of no treatment.”7
The chief avenue through which respect for patient autonomy is demonstrated in practice is informed consent. Put simply, informed consent is consent given by a patient once she or he understands a treatment being offered and freely agrees to it. Informed consent is sought in relation to an offered treatment and therefore provides patients broad authority to refuse care.
Three conditions must be met for a patient to be considered to have given informed consent8-10:
Decision-making capacity. The patient must have sufficient mental capacity to make a decision about the specific treatment under consideration. A decision cannot be considered valid if the patient lacks the mental ability to grasp the meaning of the consequences.11, 12 Patients without decision-making capacity are highly vulnerable because they cannot act in their own best interests. Such patients need the essential protection of a responsible person overseeing treatment decisions.
Information. All information relevant to the decision must be disclosed to the patient. However, it isn't sufficient to simply give the patient information; nurses should ensure to the degree feasible that the patient understands and appreciates the information.
Consent. Once the patient is determined to have sufficient capacity to make a specific decision and displays understanding and appreciation of the relevant information, she or he must voluntarily agree to the treatment without undue influence or coercion.
There are several conditions under which treatment can be given without a patient's informed consent, and (with one exception) each of these must meet specific requirements; in other words, certain “protections” must be present (see Table 1). For example, the ANA Code of Ethics requires nurses to apply such protections, instructing them to protect the rights and interests of patients by seeking appropriate surrogate decision makers when patients lack the capacity to make a decision.
The Utah University Hospital patient discussed above was unconscious, and there was no question that he lacked decision-making capacity and could not give informed consent. Because of this, he was unable to protect himself, act in his own best interest, or make decisions in accordance with self-determined goals; therefore, he needed the strong advocacy of Wubbels for his rights and welfare to be protected.
The officer had been operating under an outdated understanding of laws related to “implied consent,” which until 2007 allowed Utah police to compel breathalyzer or blood tests on the assumption that drivers implicitly agree to such testing when accepting their license.13 Not only was that law struck down, the practice of compelling blood draws without a warrant was prohibited by the U.S. Supreme Court in 2016.2
Even so, the concept of implied consent has limited utility in clinical ethics. Although informed consent is often discussed in relation to certain procedures, such as surgery, it actually applies to all interactions with patients. Informed consent is not a one-and-done occurrence; it should underlie all treatment and interactions with patients, with few exceptions. Therefore, obtaining informed consent should not be an isolated event applicable only to certain procedures—it is an essential condition that must be maintained for ethical treatment to exist.
When patients are unable to consent or they refuse treatment or decline to undergo a procedure, consent should not be assumed on the basis of what is thought to be best for that person or what the clinician believes most reasonable people would want. Even if he really had wanted the patient's blood in order to protect him, as he claimed, the officer in the Wubbels case would have been making an assumption about what the patient might have wanted.13
Explicit—verbal or written—consent can only be bypassed when the nurse has reasonably certain knowledge that the patient meets the conditions of informed consent. One example would be giving a patient an injectable medication if discussion of the medication had taken place and consent had been obtained in the past and the patient indicated willingness (this time) by making her or his body accessible. To ensure that patients receive routine nursing care with the conditions of informed consent in place, it may be helpful in an initial conversation to brief patients on what to expect during nursing care. In the Wubbels case, no such conversation took place and the procedure would not have been part of nursing care.
Even under ideal conditions, the principle of respect for autonomy as embodied by informed consent is challenged by the very nature of nursing care. Current techniques for obtaining informed consent, especially as a written document, ensure that a decision is being made autonomously. This works well for discrete procedures like surgery. Nursing care, however, unlike much of medical care, does not occur in circumscribed episodes14:
“[N]ursing care entails subtle interaction, cooperation, and teaching surrounding the performance of “small” routine activities of daily living that loom large in the face of illness and functional deficits. Nursing care means both “doing things” and being present… where the boundaries of what constitutes “treatment” are less sharp. Good nursing care often entails the use of relationship in ways that would seem mere social interaction or task completion to uninitiated observers.”
Wubbels's actions were based in sound ethics. In this case, none of the exceptions to informed consent applied. Further, the blood draw had no clinical purpose and was not to be done to improve the patient's health. Informed consent as it applied to this incident leads to the consideration of what a nurse's proper role is when procedures or other care relies on clinical techniques or expertise used to serve other purposes than the patient's benefit.
Nonclinical use of clinical techniques or expertise. The ANA's Code of Ethics stipulates that the nurse–patient relationship is established to “provide nursing services according to need” and that “[t]he nurse's primary commitment is to the recipients of nursing and healthcare services.”7 The ICN Code of Ethics for Nurses from the International Council of Nurses states that “Nurses have four fundamental responsibilities: to promote health, to prevent illness, to restore health and to alleviate suffering.”15 Drawing this patient's blood would not have contributed to any of these foundational nursing functions; it was meant only to provide evidence for legal purposes and would not have contributed to his health.
Still, there are a number of circumstances in which nursing procedures or expertise is requested and the purpose is not primarily clinical. The most common example is research that is designed primarily to gather knowledge and may or may not benefit the subjects. Other examples are asking a patient to get an HIV test after a needlestick accident and forensic procedures, such as using a rape kit or doing a competence interview to determine fitness to stand trial. None of these confers direct benefit on the patient. Even when participation in such activities is appropriate, nurses should be careful to consider the unique ethical challenges that arise when the goal of one's nursing expertise is not patient welfare.
To remain ethical in such circumstances, the first step is to closely consider the purpose or function being served and recognize those situations in which patient benefit is not the primary aim. After establishing that the purpose is not clinical, reviewing the following aspects of the situation will help in determining whether participation is ethical16:
- The degree to which the person may benefit. A patient may benefit substantially or not at all.
- The degree to which others may benefit. In research, it is presumed that others will benefit. It is not clear how much anyone would have benefited from evidence obtained from Wubbels's patient's blood sample.
- Whether or not the person has consented to a procedure. Again in research, subjects generally have given informed consent. In the case under discussion, the patient had not given and could not give consent.
- The presence of secondary benefits to the person. Although using a rape kit doesn't benefit health directly, a victim of rape may feel positive about gathering evidence against the perpetrator.
- The degree to which a procedure will harm the person. When nurses were asked to assist in force-feeding detainees at Guantanamo Bay, the procedure was deemed akin to torture and, therefore, unethical.
- Legal authorization for a procedure. Recognized, valid legal authority does not by itself determine whether a request is ethical. For example, executions are legal in the United States, but participation by nurses is considered unethical by the ANA.17
Wubbels was not being asked to draw the blood but to allow access to the patient. She would not actually have performed the clinically unnecessary procedure. She would merely have allowed it to be done, although because she had responsibility for the patient, allowing such access would have been a form of participation. She would have been correct in allowing it only if it had been deemed both legal and ethical.
Reviewing all these considerations, Wubbels assessed the situation correctly. Her participation in allowing a blood draw would not have been ethically justified, and the patient's rights were at risk. She made this determination rapidly and under stress, with intense pressure to capitulate—and likely few consequences had she given police access to the patient. She stood by her decision despite being manhandled, and she went the extra mile when she made the incident public after meeting institutional resistance to addressing the underlying problem. All this earned her the deserved admiration of nurses everywhere.
In addition to ethical considerations, the arrest of Wubbels for refusing to violate the law and her hospital's policy regarding blood draws from unconscious patients has legal concerns. Although Wubbels was released without charges and the arresting officer was subsequently terminated from the Salt Lake City Police Department, Wubbels was traumatized by the experience and subsequently reached a $500,000 settlement1 with the police department and the university. The incident raises several legal issues:
- Would Wubbels have been violating the patient's constitutional rights if she had complied with the officer's demand that she allow him to draw blood from the patient without his consent?
- Did the posted video recordings of the event create patient privacy concerns?
- How should hospital security have responded?
Constitutional protections. Although nurses have an obligation to cooperate with law enforcement, their first responsibility is always to the patient. Wubbels declined to violate her patient's constitutional rights. She explained to the officer why he could not draw the blood without consent. She showed him the hospital policy. She called management for support. She followed the law, the organization's policies, and her professional code of ethics.
The Fourth Amendment to the U.S. Constitution states the following18:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
In the absence of consent, the officers must either present a warrant authorizing the blood draw or represent that emergency or special circumstances, known as exigent circumstances, exist. In the Wubbels case, the detective, Jeff L. Payne, insisted that the doctrine of implied consent applied. The argument was that citizens consented to alcohol testing as a condition of being licensed to drive. The U.S. Supreme Court, however, has held that this doctrine only applies to breath tests, not to blood alcohol testing. To determine whether alcohol testing violates a person's Fourth Amendment rights, courts consider the degree to which such testing intrudes on the person's privacy.
The U.S. Supreme Court has held that venipuncture is considered a “search” subject to Fourth Amendment protections. Although breathalyzer testing is not considered to be overly intrusive, venipuncture to determine blood alcohol content (BAC) is. In Birchfield v. North Dakota, the court noted the following2:
“[W]e conclude that the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving. The impact of breath tests on privacy is slight, and the need for BAC testing is great. We reach a different conclusion with respect to blood tests. Blood tests are significantly more intrusive, and their reasonableness must be judged in light of the availability of the less invasive alternative of a breath test.”
The police can argue in some cases that exigent circumstances create exceptions to the need for a warrant. For example, when a person is in imminent danger, when there is a risk of serious property damage, when a suspect might escape, or when critical evidence can be destroyed the police might be permitted to make warrantless searches.
The exigent circumstances argument in BAC testing is that alcohol metabolism and dissipation amount to the destruction of evidence, necessitating the blood draw before a warrant can be obtained. The U.S. Supreme Court, however, has held that the “mere dissipation” of blood alcohol evidence is not automatically adequate to permit a blood draw without a warrant. Cases must be evaluated individually, but when the police are able to obtain a warrant, they must do so before conducting a search such as a blood draw.
In Missouri v. McNeely,19 a police officer stopped a driver for speeding and crossing the centerline. When Mr. McNeely refused to take a breath test, the officer arrested him and took him to a hospital for blood testing. The officer did not attempt to secure a warrant. Mr. McNeely also refused to consent to the venipuncture to determine his BAC. A lab technician followed the officer's directions to take the sample despite the patient's refusal. The BAC tested above the legal limit and Mr. McNeely was charged with driving while intoxicated.
Mr. McNeely argued that the blood test should be suppressed because it was obtained in violation of his Fourth Amendment rights. Because no circumstances suggested that the officer faced an emergency, the trial court found that there were no exigent circumstances and they should not have been allowed to draw his blood without a warrant. On appeal, the U.S. Supreme Court noted that warrants can be obtained in an expeditious manner. Although recognizing the governmental interest in addressing drunk driving, the court found that the officer was not justified in failing to obtain a warrant because he had not demonstrated the required exigent circumstances.19
Privacy concerns. Under the Health Insurance Portability and Accountability Act (HIPAA) of 1996, police officers are not “covered entities” or “business associates” subject to the security and privacy provisions of the act.20 They should, however, be aware of local hospital policies regarding privacy and confidentiality. Hospitals are required to have “appropriate safeguards” in place “to protect the privacy of personal health information.”21
Among the many obvious examples of protected health information, images and recordings of patients are also included. Electronics such as cameras, cell phones, or tablets that make recordings can compromise patient privacy. Organizations should have policies and procedures in place to address the use of such electronics in patient care areas. HIPAA's security provisions apply to video footage, requiring hospitals to have protocols in place for safeguarding and storing such recordings. Recordings from police body cameras are not the property of the hospital but belong to the law enforcement agency. Because they can reveal identifying information about patients, police body cameras should be restricted or prohibited in patient care areas.
State laws also address patient privacy and might offer more stringent protection than the federal requirements under HIPAA. For instance, state law can provide patients with the right not to be filmed or recorded without informed consent. The Wisconsin legislature, for example, has pending legislation referred to as “The Body Camera Transparency and Accountability Act,” which would establish state-wide standards for the use of body cameras.22 Video footage that identifies a patient can violate federal and state requirements to safeguard protected health information if the images are disclosed.
The Wubbels case received a great deal of attention, largely as a consequence of posted video footage from the officer's body camera.23 Policies must be in place to address the recordings from officer body cameras in patient care areas. As personal security expert Spencer Coursen notes,24
“This is definitely an area where technology is moving faster than the law can advise, but if a patient's private information is made public through the use of a police body camera, a hospital's failure to articulate their appropriate safeguards would find itself in the midst of a very real HIPAA violation.”
Hospital security responsibilities. The video footage of the Wubbels incident demonstrated hospital security cooperating with the police, rather than protecting the nurse. The guards in the burn unit were University of Utah police but did nothing to intervene as she was dragged out of the hospital. Although she was screaming for help, they did not respond to her pleas. Wubbels had called hospital security for help and was told they could do nothing but allow the officer to arrest her. Indeed, it was a University of Utah police officer who stopped her when she was trying to back away from Payne. His enabling of the abuse created potential liability for the hospital. Another University of Utah police officer pushed the door-open button to assist Payne, creating yet more liability for the hospital. As members of the university police force, the security guards had an obligation to intervene on her behalf.
Security guards should have protected Wubbels and prevented Payne from making an unlawful arrest pending the arrival of hospital management. Body camera footage reveals that while Wubbels was in the police car, one of the University of Utah police officers said, “We can't stop him. We're not going to get involved.”25 Not only did they not assist Wubbels, they also did nothing to deescalate the conflict.
Conclusion. In the wake of Wubbels's arrest, the ANA called for the Salt Lake City Police Department to “conduct a full investigation, make amends to the nurse, and take action to prevent future abuses.”26 Hospital administration intervened to secure her release within 20 minutes, and she was not charged. In further support of Wubbels, hospital administration changed hospital policies to bar police from patient care areas and prohibiting them from interacting directly with the hospital's nurses.27
The chief of the University of Utah police apologized to Wubbels and promised to train his officers. The Salt Lake City Police Department fired Payne. The city and the university settled with Wubbels for $500,000 and agreed to split the costs.28 According to Eleanor Sheehan writing for Splinternews.com, upon obtaining the settlement, the attorney for Wubbels noted29:
“When this whole venture started with Alex Wubbels, she had five goals. First, after this happened, she wanted changes to policy. Second, she wanted to see accountability from those who were involved in the incident. Third, she wanted to start a public discussion, particularly about the urgent need for body cameras. Fourth, I told Alex she should expect to be compensated. And fifth, she wanted to help others—other nurses and other people who have these types of situations happen to them. I can now announce that all five of these goals have been met.”
Wubbels exhibited professionalism and moral courage. As Arthur R. Derse remarked in the New England Journal of Medicine,30
“It is vital that we select for and foster character attributes such as judgment and moral courage in students who seek to enter the health care professions so that they can be prepared to confront the inevitable ethical challenges. Whether moral courage can be developed during education and training is uncertain, but it should be commended whenever it is witnessed.”
The Wubbels incident is an example of a nurse doing exactly the right thing and demonstrating the moral courage to which Derse refers. Wubbels calmly and professionally explained to Payne why she could not comply with his request to allow him to draw her patient's blood without a warrant. She showed him the policy. She notified hospital management of the issue.
She deserved better when she screamed for help.