Police are a common presence in emergency departments. Sharing patient information between healthcare providers and the police can be essential for safety purposes. However, it can also erode the trust patients have in healthcare and pose a barrier to accessing care they need. Police presence can be distressing for many patients, especially considering that policing in Canada is intimately connected to a long history of colonial violence and racism. It is important to think about how we as emergency physicians and learners interact with police while maintaining the emergency department as a safe space for our patients.
Case: Information please?
You are a junior resident seeing J.M., a 32-year-old male brought by police after being seen acting erratically downtown.
You bring J.M. into an exam room for assessment. He is medically stable, but discloses he used crystal meth earlier that day. You don’t identify any acute safety concerns and learn he is interested in addictions resources. You plan to discharge him after he meets with your department peer support workers.
When you leave the exam room, the police officers approach you with some questions.
Police in the ED: What’s the big deal?
In Canada, Black and Indigenous people are twice as likely as non-Indigenous and non-visible minority people to state they have little or no confidence in the police.1 Between 2007-2017, Indigenous people represented one third of fatal shootings by RCMP police officers across Canada.2 The Ontario Human Rights Commission also found that Black persons are 20 times more likely to be shot and killed by police compared to their non-visible minority counterparts.3
The experience of police violence is further complicated when racialized individuals also live at the intersection of mental illness. The death of racialized and Indigenous individuals during police mental-health checks, including Regis Korchinski-Paquet, Chantel Moore, D’Andre Campbell, and Ejaz Ahmed Choudry, have raised concerns around whether police officers are appropriately equipped to respond to mental health crisis without further escalating the situation.4 These deaths reinforce the on-going distrust and negative perceptions of the police in marginalized communities.
We have a responsibility to be intentional and nuanced when deciding how and when to interact with law enforcement, keeping in mind our primary responsibility to our patients. In this blog post, we will answer key questions raised by the case from both a legal and ethical perspective, which will help guide your future police interactions in the emergency department.
What should I do when the police ask for patient information?
The Canadian Medical Association’s code of ethics and professionalism reminds us that physicians have an ethical obligation to promote a relationship of confidence and trust with patients.5 It is important to assure your patients of your primary duty to care for their well-being and protect their health information, as well as the limitations to this.
As legislated in the Personal Health Information and Protection Act (PHIPA) in Ontario, and similarly in other jurisdictions across Canada, all patients have a right to expressly consent to disclosures of their personal health information (PHI) to individuals outside the circle of care, with some exceptions. PHIPA prioritizes the fiduciary duty owed by clinicians to patients and favours an approach wherein health care providers disclose PHI without consent in very limited circumstances. These include:
- During the course of an investigation. Healthcare providers may disclose specific PHI to police who are carrying out an investigation. How to exercise the discretion is often a function of assessing the purpose of the disclosure (is it safety related? Are there exigent circumstances?). Sometimes police have a time sensitive question about a patient’s condition. This can be to determine whether a scene can be released or whether the special investigation unit must be contacted to review police conduct. Generally, absent urgent or safety considerations, police can be advised that a warrant or subpoena will be necessary to secure a copy of the patient records, confiscate a blood sample or obtain testimony from providers. It is not obstruction of justice to require a warrant or subpoena. Further, the health record will generally maintain the documentation required to establish chain of custody of any evidence.
- Locating next of kin & disclosing patient condition. You are permitted to disclose PHI to police when identifying next of kin or a substitute decision maker. This includes patient name and whether they are in critical, poor, or stable condition.
- When required by law. Physicians have a duty to report when a child is in need of protection, or when a physician has reason to believe there is imminent risk of serious bodily harm or death to an identifiable person or group. Additionally, reporting of gunshot wounds is mandatory in Ontario, British Columbia, Alberta, Manitoba, Saskatchewan, Quebec, and Nova Scotia. There are numerous other mandatory reporting policies which can differ between provinces. Comprehensive guidelines can be found on the websites of each province’s physician licensing body.
- When the police officer presents a production order or warrant. These legal documents grant police the legal authority to seize evidence listed on the order or warrant.
- When the physician receives a subpoena. Subpoenas are legal orders requiring an individual to attend a judicial proceeding. They may direct physicians to bring documents or materials relevant to the action. The subpoena will set the time, date, and place of the hearing. Subpoenas do not require physicians to speak to police before the hearing.
- When police provide a request under the Missing Persons Act. Police can make a demand for access to PHI in order to locate a missing person. There is a form to make the request requiring healthcare workers to provide information directed towards locating the missing person.5,6
When in doubt, turn to the experts at Canadian Medical Protective Association and within your institution’s legal and ethics teams. Given these supports are limited overnight and on weekends, remember the discretion afforded to care providers is broad under PHIPA. Care providers can, when presented with valid safety concerns, err on the side of disclosure. It is important for organizations to develop policies guiding the release of PHI to police and to clarify practices such as storage of information or items of evidentiary value and documentation of disclosures in the patient’s record.
Returning to police
The police officers ask for an update. They also ask whether J.M. has been using any drugs and whether you were going to run any drug tests.
You tell the officers that J.M. appears to be in stable condition. You remind the officers that you can only disclose information related to safety and similar pressing purposes without a warrant, but a record of any test results and your clinical impressions will be documented in the patient’s medical record. As the situation evolves, you continuously consider whether there is any other disclosure of PHI to police that would be reasonable in the circumstances, such as to mitigate an immediate safety concern.
You provide the officers with your staff physician’s name as the most responsible physician for J.M. and confirm your staff is now taking responsibility for the patient. You thank the officers for helping J.M. to reach the emergency department safely and for their support in his care.
Returning to the patient
When you go back to J.M.’s room to give him an update, you inquire about his interaction with the police. He tells you that he does not want his patient information to be shared with the police. He expresses worry that the police will arrest him for his use of illegal substances.
You tell the patient his personal information will not be shared with anyone outside of several key exceptions, including situations in which there are risks of serious bodily harm or death to himself or others, where there is a need to identify a substitute decision maker for him, or where you have reasons to believe an investigation is underway. You tell him that if there is an investigation underway, barring any urgent considerations, the police are generally required to have a production order, warrant, or a request under the Missing Persons Act to collect patient information and reassure him that so far you have not been presented with any of these documents.
Finally, you explain that his assessment will go in his medical records which can only be accessed by his providers. However, if there is a legal proceeding involving his case his patient information may be released with a subpoena. You empathize that this is a lot to take in, and reassure him your priority is his health and well-being. You encourage him to ask questions and state you will pass his questions to the legal department if there is anything you cannot answer.
As emergency physicians and learners, we also have an obligation to advocate for the health of our communities at large. Understanding the traumas many patients, especially those who are Black, Indigenous, and/or are experiencing mental illness undergo due to policing is an important exercise in keeping our communities safe and healthy. Familiarize yourself with the local and national discourse around policing by centering marginalized perspectives. Consider getting involved in initiatives that advocate for evidence-based alternatives to policing during mental health and wellness checks. You can get started at some of these great places:
- Book: Policing Black lives: State Violence in Canada from Slavery to the Present (Robyn Maynard, 2017)
- Book: The Skin We’re In – A Year of Black Resistance and Power (Desmond Cole, 2020)
- Article: Inquiry Needed into Police Violence Against Indigenous Peoples (Pam Palmater, 2020)
- Article: Q&A: Founder of Black Lives Matter in Canada Explains the Call to Defund Police (Alicia Bridges, 2020)
Copy-edited by Joe Boyle.
- Ontario Human Rights Commission. A Collective Impact: Interim Report on the Inquiry into Racial Profiling and Racial Discrimination of Black Persons by the Toronto Police Service. Government of Ontario; 2018:Published Online. Accessed December 21, 2022. https://www.ohrc.on.ca/en/public-interest-inquiry-racial-profiling-and-discrimination-toronto-police-service/collective-impact-interim-report-inquiry-racial-profiling-and-racial-discrimination-black
- Freeze C. More than one-third of people shot to death over a decade by RCMP officers were Indigenous. The Globe and Mail. https://www.theglobeandmail.com/canada/article-more-than-one-third-of-people-shot-to-death-over-a-decade-by-rcmp/. Published November 17, 2019. Accessed September 26, 2022.
- Statistics Canada. Perceptions of and experiences with police and the justice system among the Black and Indigenous populations in Canada. . Statistics Canada. Published February 16, 2022. Accessed September 26, 2022. https://www150.statcan.gc.ca/n1/pub/85-002-x/2022001/article/00003-eng.htm
- Cooke A. Recent deaths prompt questions about police wellness checks. CBC News. Published June 23, 2020. Accessed December 3, 2022. https://www.cbc.ca/news/canada/nova-scotia/police-wellness-checks-deaths-indigenous-black-1.5622320
- Nolan B, Ackery A. Collaborating With Police in the Emergency Department While Maintaining Patient Confidentiality: How Can We Improve? CJEM. Published online April 24, 2015:437-442. doi:10.1017/cem.2015.5
- Canadian Medical Protective Association. Physician interactions with police. Canadian Medical Protective Association. Published March 2011. Accessed November 19, 2022. https://www.cmpa-acpm.ca/en/advice-publications/browse-articles/2011/physician-interactions-with-police