Where law and ethics diverge: the ethics of intimate body searchesBMJ 2013; 347 doi: https://doi.org/10.1136/bmj.f6974 (Published 22 November 2013) Cite this as: BMJ 2013;347:f6974
- Daniel K Sokol, honorary senior lecturer, medical ethics and law, King’s College London, and practising barrister
On 2 January 2013, in the small town of Denning, New Mexico, David Eckert failed to come to a complete stop at a “Stop” sign in a car park. A police officer spotted this infringement and asked him to step out of the vehicle. The officer thought Eckert appeared nervous, with an unusual posture. According to reports, an enthusiastic narcotics dog and an allegation that Eckert had previously hidden drugs in his rectum led a local judge to issue a warrant permitting an intimate body search of Eckert.
Armed with the warrant, the police brought Eckert to a doctor, who allegedly refused to perform the procedures on ethical grounds. Eckert was then taken to the regional medical centre, where he underwent radiography, digital rectal examinations, enemas, and a colonoscopy without his consent. These were performed by medical professionals.
No drugs were found. Eckert has issued proceedings against several defendants, including the city of Denning, the police officers, the hospital, and two doctors.
Much has already been written on the rights and wrongs of the arrest. Journalists have pointed accusatory fingers at the police, the deputy district attorney, and the judge. Legal scholars have argued that the intrusive search breached the Fourth Amendment of the US Constitution (prohibiting unreasonable searches and seizures) and hence that the judge was wrong in law to sign off the warrant. I focus here on the role of doctors in cases of this sort.
The Hippocratic Oath states “Into whatever houses I enter, I will go for the benefit of the sick.” Eckert was not sick. The purpose of the investigations was primarily to gather evidence for potential criminal proceedings. The two roles—forensic investigator and healer—are difficult to reconcile.
A cornerstone of modern medical ethics is the requirement to obtain consent from adults with capacity before examining or treating them. This obligation is not annulled in cases such as Eckert.
Each of the three components of valid consent—adequate information, voluntariness, and capacity—can present challenges in such cases. Some ethicists might question the possibility of consent in a detainee whose refusal would probably result in a prison sentence. Yet, bleak alternatives to consent—present in other contexts, such as end of life care—do not invalidate consent. In such instances, an explanation of the alternative options forms an integral part of the consent process. In Eckert’s case, this discussion may include the possibility of a court inferring guilt or the possibility of non-doctors performing some of the invasive procedures, with perhaps greater risk to health. The patient should also be told that, if drugs are present in the rectum (or vagina), a refusal to search might lead to a rupture of the drugs inside the body and a risk of overdose.
If the duty to obtain consent is relatively uncontroversial, far trickier are so called “duties of manner,” or duties relating to how and where the consent should be sought. The patient may be in a state of distress, vulnerable, or under the influence of drugs or alcohol. The doctor must explain that another Hippocratic commitment—the duty to keep the secrets of patients (that is, confidentiality)—is weakened. The doctor might need to disclose personal and incriminating information to the police.
Against a backdrop of suspicion, sound communication skills and a good bedside manner are vital. Doctors should encourage questions from the patient, and suppress any judgments about guilt or innocence. Privacy should be respected as far as possible, with the safety of the doctor also borne in mind. Although all intimate body searches are undignified, there are degrees of indignity. The duties of manner serve to minimize the indignity.
In Eckert’s case, the legality of the warrant was questionable but there might be situations, in some jurisdictions, where it is lawful for doctors to perform intimate body searches without the consent of an adult with capacity. In those situations, medical ethics diverges from the law. Ethics requires consent, even if the law does not, for it is consent that maintains the integrity of the doctor as helper. Thus no doctor should be forced to perform such procedures without consent.1 Even with consent, ethics favours the use of the least invasive option (such as radiography), to the minimum extent necessary, rather than the plethora of measures allegedly used in Eckert’s case.
The first doctor, who refused to examine Eckert, followed the tenets of medical ethics. He also displayed considerable moral courage. It is one thing to propound a virtuous course of action in theory and quite another to do so with police officers waiving a state-sanctioned warrant under one’s nose. In this distasteful tale, his refusal to participate stands out as an act of humanity.
Cite this as: BMJ 2013;347:f6974
Competing interests: None declared.