Patients in custody and in need of treatment: 8 recommendations for EMS

By Stephen R. Wirth, Esq., EMT-P and Douglas M. Wolfberg, Esq., EMT-B

The recent criminal indictments following the death of Elijah McClain in Aurora, Colorado in 2019 bring focus on the difficulties EMS practitioners encounter in working with law enforcement when people are subdued, restrained, or arrested. The indictments charge two paramedics from the Aurora Fire Department, as well as three Aurora police officers, with various crimes including: manslaughter, criminally negligent homicide, assault with a deadly weapon, conspiracy, and a range of other criminal charges.

These indictments come six months after an Independent Review Panel issued its Report and Recommendations critical of the actions of the police officers and fire department EMS responders. McClain died after he was stopped by police while walking home from a store, restrained, administered a “carotid control hold” by police and given a large dose of Ketamine by paramedics. The 157-page report outlined numerous concerns about the EMS response, including:

• Delays in a clear transfer of control from police to EMS;
• Lack of clear communication and possible information loss between Aurora Police and Fire;
• Delayed and incomplete assessment of McClain;
• Failure to obtain appropriate equipment;
• Inaccurate estimation of patient weight; and
• The role of cognitive errors in medical decision-making.

The report points out that the body-worn camera footage “suggests that the Aurora Fire personnel showed a concerning level of deference to the police officers at the scene regarding control of Mr. McClain and that there was no clear transition of care or command.”

The report noted also that there was a “widespread sense within Aurora Fire that the patient is not a patient until the police say they are.”

Numerous recommendations were offered to help prevent this type of tragedy from happening in the future including:

• Establishing better protocols and training to ensure appropriate patient handoff from police to EMS;
• Improving patient assessment procedures;
• Enhancing communications between fire and EMS, and
• Building a “culture of patient advocacy.”

In sum, what the report said was needed is effective guidance, clear rules, and a culture that emphasizes patient safety. That culture should make clear to both fire and police personnel when medical staff should take control and when they must defer to law enforcement:

“In this situation, a culture of deferring to law enforcement appears to have resulted in medical personnel standing back and neither verbally nor physically intervening until law enforcement clearly yielded command. These transition failures can compromise EMS providers’ ability to adequately care for their patient. Best practices require that EMS play a more active role.” [Independent Review Panel Report, pp. 111-112]

EMS recommendations for difficult situations with law enforcement

Unfortunately, the approach that the “patient is not a patient until police say they are” is not uncommon in EMS agencies nationwide. Concerned that it may interfere with the close working relationship that EMS needs with police in difficult situations, some EMS practitioners are hesitant to intervene and may fall back on deferring to law enforcement. But police officers lack the training and expertise of EMS practitioners. Police officers may not recognize a deteriorating medical condition that EMS, with proper patient access, could readily recognize and address. That’s the job of EMS, and practitioners need to act to fulfill that professional obligation for every patient, including people in police custody (assuming of course that the scene is safe and there is no overt threat to the safety of EMS personnel).

Here are some observations and recommendations to assist EMS agencies in dealing with these often difficult situations with law enforcement agencies – especially where there are individuals restrained, in custody, or arrested and there may be a need for EMS intervention:

Recommendation 1: There is a legal, moral and professional “duty to act” – and access the patient

As health care professionals, EMS providers have a moral and professional responsibility, and usually a legal duty of care, to the patient, including when providers observe the behavior of others that may be causing that harm.

The first step in this obligation is to “act to access the patient.” EMS caregivers can’t just sit back and complacently wait until the police say it’s okay to assess the patient. Especially when EMS providers see a patient in distress or in a position compromising the airway. The public expects that if EMS is called, responds, and arrives on the scene, that the providers should furnish medical care to those in need. That includes a person in distress in police custody just as it would any other patient in distress without police on the scene.

Action steps:

• Work with law enforcement to develop a procedure on the role of EMS when there is a potential patient in custody. This includes proper steps for “handing off” the patient from law enforcement to EMS and clearly identifying the role of law enforcement and the role of EMS in “patient in custody” situations.
• Train, train and train some more using role-play and mock case scenarios replicating situations similar to the one involving Elijah McClain and how best to handle them. Providers spend hours on “mock codes” and “mock trauma” scenarios but are more likely to see situations involving mental health crises, difficult patients, and drug and alcohol situations. Yet we don’t typically conduct much realistic training on these scenarios.
• Practice communication skills to intervene effectively with police when you detect that the person in custody might be in distress or in need of medical evaluation, such as the “bystander intervention” techniques discussed below.

Recommendation 2: Be accountable for our actions - and our inaction

Not only should EMS be accountable and accept responsibility for our actions and the assessment and treatment we provide, we must also be accountable for decisions not to pursue a particular course of action that we know would benefit the patient, like deciding not to bring the medical equipment directly to the patient. One of the points made in the report was that the paramedics did not bring all the necessary medical equipment to the side of McClain when it was needed.

Providers must have the “tools of the trade” within reach in any situation, wherever possible. There’s simply no excuse for not having our necessary equipment close to the patient. So what if you don’t need it? The worst thing that happens is you must take the equipment back to the ambulance. But if you don’t have it and a patient needs it, that could lead to inadequate care and may compromise the patient’s condition.

Recommendation 3: Practice always the three principles of a professional caregiver

There’s been much talk about what defines a professional EMS practitioner. Does “being professional” require a college degree or not? Should EMS providers be “certified” or “licensed’? Those debates miss the point of what truly defines a healthcare professional. True healthcare professionals have “emotional intelligence” and live by the following three principles:

1. They recognize that we each have a duty to question ourselves when we are not sure of a particular course of action. “False pride” and being unwilling to seek advice and assistance from a partner or colleague when you are unsure of what you are doing can harm patients and others.
2. They recognize that we all have a duty to question each other, especially when we observe inappropriate or questionable behavior from a partner, other responders, or law enforcement. That’s one of the reasons we have partners. To have two sets of eyes on the situation so that there is a good “check and balance” when caring for patients. One partner may miss something that the other partner may pick up and vice versa. And true professionals don’t take offense when their partner questions what they are doing or intervenes in the interest of the patient, that’s emotional intelligence. It’s the ability to see the situation and appreciate it from another person’s viewpoint.
3. We have a duty to accept responsibility for our actions. That can be tough for some EMS practitioners with the strongest of egos. But we must have the ability to acknowledge when we make a mistake or don’t treat the patient with our best effort in a particular situation. That’s the only way to provide competent health care. Lives are at stake in much that we do, and we need to learn from our mistakes to avoid harm to the patient and to prevent the same mistake from happening in the future.

Recommendation 4: Address the implicit biases that can cloud decision-making

Another major concern identified in the report was the role of cognitive errors in medical decision-making. Specifically, the report notes the potential for bias in the McClain case and similar cases. Previous experiences with difficult, intoxicated, or hostile patients may impact our individual interpretation of the facts. Our past experiences can certainly help in assessing the patient’s condition. But past experiences can also allow our subconscious or implicit biases, especially related to a patient’s gender, sexual identity, race, ethnicity, economic status, etc., to enter the decision-making process in an unconscious way. This can have both positive and negative consequences.

In other words, EMS practitioners can become “hardened” because of so-called “bad” patients and thus that becomes a “normal” expectation. Like getting the call to the convenience store at 3 a.m. for a middle-aged man down in the parking lot vomiting. Inherent unconscious biases due to past experiences may be telling you that this is going to be an intoxicated person and not a heart attack patient because the subconscious tells us it will be an intoxicated person. We need to understand how past experiences can lead to the implicit bias that can cloud our judgment.

Recommendation 5: EMS Must Accept and Serve All Patients

We must also always remember the adage “we accept the patient where they lay.” And that means accepting the patient on the patient’s own terms, and on the patient’s own time not on our terms or on our time. EMS serves patients, whoever they may be and whenever they may call. It doesn’t matter whether the patient is a wealthy person experiencing chest pain in the middle of the day in their mansion or the patient is incoherent and vomiting in the parking lot of the convenience store at three in the morning in police custody. Both are patients and human beings deserving EMS’s best efforts regardless of their station in life.

Recommendation 6: Teach how to intervene in difficult situations

A few years ago, the Equal Employment Opportunity Commission (EEOC) implemented a new program to help stop and prevent sexual harassment in the workplace. The EEOC developed a “Bystander Training Model” to help teach employees how to intervene when they observe a coworker unlawfully harassing another coworker. Many instances of sexual harassment go unreported because people are afraid to report it and intervene to stop it.

The problem is that if EMS providers silently sit back and are “bystanders to bad behavior,” that simply “normalizes” the bad behavior! Then the perpetrator of the bad behavior feels that it is okay to do what they are doing, and others then see that as acceptable conduct. The bottom line is EMS providers cannot be bystanders to bad behavior especially when they see a patient who is the victim of it.

Providers need to intervene in a positive way to interrupt bad behavior and hopefully to improve the outcome of the situation. This can be done by using calm and non-defensive phrases when attempting to intervene with a patient who is in the custody of police, but appears to be in distress. Here are some examples of phrases that can be used.

• “It looks like he is having trouble breathing, can I get in there to check him out?”
• “He is not coherent, he could be having a stroke or a neurological emergency. I need to assess his condition.”
• “He looks very pale, let me check his oxygen levels and his vital signs.”

Recommendation 7: Don’t let complacency become complicity

Laziness, i.e., complacency, can creep in after a difficult shift with multiple patients, no breaks, and no time to eat. It is especially difficult now after EMS has been hit with the double whammy of COVID-19 and the civil unrest that evolved after the murder of George Floyd. EMS practitioners are tired, exhausted, overworked, stressed out, and underpaid. But that cannot be an excuse for not giving patients and the public 100% of our best efforts with their best interests in mind.

It’s easy to become complacent with all the negative factors working against EMS. But providers must avoid allowing complacency to degrade into something worse – complicity with bad or unlawful behavior. When a provider allows another responder to behave badly toward a patient or allows them to act in a way that may harm the patient, like using a chokehold or prone restraint – and then not doing anything about it – that provider is not only being complacent but may also become legally complicit in that bad behavior.

That means the silent, complacent practitioner could then be just as guilty as the main offender under our criminal legal system. Ask the other police officers in the George Floyd case who are awaiting their criminal trials after the main offender, Derrick Chauvin, was convicted of second-degree murder. They are on trial primarily because of their alleged complicity in the criminal conduct of Officer Chauvin.

Sometimes it is easy to go along with the show and simply follow the direction of others at the scene, even when deep down inside we know that may not be the right direction. This evolves into a group dynamic that is not healthy and can be detrimental to the patient. EMS providers always must remember they work for the patient, not law enforcement or other responders.

Recommendation 8: Remember always, first do no harm!

The Hippocratic Oath of “primum non nocere” – first do no harm – should always be in our minds whenever approaching any situation, especially situations involving difficult or combative patients. It’s a fundamental principle of medicine. Providers should not make the patient worse off because of their actions (or inactions) than the patient was before EMS entered the picture.

It is the job of EMS practitioners to recognize life-threatening situations and to take appropriate action to treat them, even if that means intervening when observing the questionable or improper conduct of other responders, law enforcement, or even fellow EMS providers. Arguably, that’s one of the big issues involving the tragedy of Elijah McClain – failing to properly assess the situation and recognize it for what it really is (some medical experts say it was not excited delirium) and then taking actions that may have contributed to the patient’s harm – underestimating Mr. McClain’s body weight and administering too high a dose of ketamine.

Professional EMS practitioners cannot sit back as bystanders and watch untoward events unfold. Providers have a moral, professional, and legal obligation to take the steps necessary to prevent harm to the patient and all concerned. It’s a solemn, and legal, duty of EMS practitioners. It’s why we got into this field in the first place.

The NAEMT Code of Ethics for EMS Practitioners makes it clear that calling out the unethical or improper conduct of others is part of our professional responsibility. Under that code, EMS practitioners have an obligation “to refuse participation in unethical procedures and assume the responsibility to expose incompetence or unethical conduct of others to the appropriate authority in a proper and professional manner.”

Too much is at stake to sit back and not take the initiative to be engaged in the situation. We need to be patient advocates. If we are too complacent and don’t advocate for the patient, we could find ourselves complicit in the unlawful conduct of others.