THE ETHICS COLUMN
The Danger Of Deputizing Doctors
By Jacob M. Appel, MD JD
The news story, as initially reported by Syracuse-based journalist Douglass Dowty, seems like a tale of horror from a foreign police state: On Oct. 16, 2017, when Torrence Jackson was pulled over by cops for failing to signal before a turn, he allegedly stashed illicit drugs in his rectum to conceal them. The officers then transported Jackson to St. Joseph’s Hospital, where they obtained a search warrant to physically remove the supposed drugs from Jackson’s body using any means necessary. Physicians initially refused to perform a sigmoidoscopy (the insertion of a rod into the colon)—as the patient proved unwilling to consent to the procedure and an X-ray had also shown an absence of contraband. Yet after intervention from the hospital’s lawyers, the medical staff sedated Jackson against his will with general anesthesia and performed the procedure without his consent. No drugs were found.
From a legal standpoint, even if drugs had been found, the evidence would likely have proven inadmissible. Syracuse City Court Judge Rory McMahon, who signed the warrant, might want to brush up a bit on his criminal procedure. In a nearly identical 1952 case known to many a first-year law student, Rochin v. California, the United States Supreme Court ruled that drug evidence obtained from pumping a prisoner’s stomach could not be used in court because invasive bodily searches of that nature “shocked the conscience” and defied the Constitution. Pretty strong stuff. In theory, there might be some extreme circumstance where such an aggressive, involuntary intervention would be justified, but not in a petty drug possession case, where—not wishing to be too graphic—the course of nature would have inevitably resolved the issue in due time.
The doctors’ conduct in this case is also highly concerning. One of the fundamental precepts of medical ethics is that physicians do not engage in medical interventions on competent and capable patients without their consent. Just because officers have a warrant does not necessarily mean that doctors are obliged to engage in a complex medical procedure to facilitate that warrant; they could simply have stepped aside. (This case is far more troubling than that of Alex Wubbels, the nurse arrested in Utah in 2017 for refusing to allow police to draw blood from an unconscious patient—because here the doctors performed the intervention themselves while the patient was vocally objecting.) General anesthesia is relatively safe, but not without hazards—including a death rate of approximately 1 in 200,000; sigmoidoscopy risks perforation of the colon.
This case falls into a broader, troublesome pattern of law enforcement “deputizing” physicians to assist in their work. Several states now permit police officers to compel medical personnel to draw blood in suspected DWI cases. Others—most notably Connecticut—have used doctors to “break” prison hunger strikes by force-feeding competent inmates with nasogastric tubes (something most Americans assume only happens at Guantánamo.) Psychiatrists have even been called upon to declare death row inmates fit for execution. This muddling of medical and law enforcement roles does not make us safer, but likely leads segments of the population who already have reasons to distrust medical professionals to fear doctors even more. Far better to render unto Hippocrates what belongs to Hippocrates, and cede the rest to Caesar.... #
