Police Procedure: Hospital Patients

Drink Driving Hospital Patients Police Procedure

The police can breathalyse any person who they reasonably suspect to have been driving, attempting to drive or in charge of a vehicle while under the influence of alcohol or drugs. They can also breathalyse any person they reasonably believe was driving, attempting to drive or in charge of a vehicle at the time of an accident on a road or other public place. However, in some cases a person may be taken to the hospital before a requirement to provide a specimen can be made. The procedure for hospital patients differs to that of standard police procedure.

A hospital is defined as an institution which provides medical or surgical treatment for in-patients or out-patients.

Hospital Patients

Whether or not a person is at the hospital as a 'patient' or they are there in another capacity will be a question of fact that can be assessed by referencing hospital records. Hospital records will show the names of all patients alongside the time they were both admitted to the hospital as a patient and the time they were subsequently discharged.

Once a person has been discharged from hospital, regardless of whether or not they need to return at a later date for further treatment, they will immediately cease to be a hospital patient and hospital procedure will cease to apply.

Preliminary & Evidential Breath Tests at a Hospital

s. 9 ss (1) of The Road Traffic Act 1988 [1] states:

(1) While a person is at a hospital as a patient he shall not be required to co-operate with a preliminary test or to provide [an evidential] specimen [...] unless the medical practitioner in immediate charge of his case has been notified of the proposal to make the requirement; and—

if the requirement is then made, it shall be for co-operation with a test administered, or for the provision of a specimen, at the hospital, but
if the [doctor or] medical practitioner objects [...] the requirement shall not be made

The police have the power to require a preliminary breath test or evidential breath test from a hospital patient as laid out under s. 6, s.7 and s.9 of The Road Traffic Act 1988 [1] if and only if the doctor (or medical practitioner) who is in charge of the patients case has been notified and does not object.

A doctor (or medical practitioner) may object to a preliminary or evidential breath test being required if it would be prejudicial to the proper care and treatment of the patient in question.

Provision of Blood Specimen at Hospital

s. 9 ss (1A) of The Road Traffic Act 1988 [1] states:

(1A) While a person is at a hospital as a patient, no specimen of blood shall be taken from him [...] and he shall not be required to give his permission for a laboratory test of a specimen taken [...] unless the medical practitioner in immediate charge of his case—

has been notified of the proposal to take the specimen or to make the requirement; and
has not objected [to the specimen being taken]

The police have the power to require an evidential specimen of blood from a hospital patient as laid out under s.7 and s.9 of The Road Traffic Act 1988 [1] if and only if the doctor (or medical practitioner) who is in charge of the patients case does not object.

A doctor (or medical practitioner) may object to an evidential blood specimen being required if it would be prejudicial to the proper care and treatment of the patient in question.

A person may not be arrested while at the hospital as a patient

Persons Incapable of Consenting

A person who is incapable of consenting, may have a sample of blood taken from them without their consent. For example if a person, who was believed to be the driver of a vehicle that was involved in an accident on a road or other public place and was unconscious.

s. 7A of The Road Traffic Act 1988 [1] states:

Specimens of blood taken from persons incapable of consenting

(1) A constable may make a request to a medical practitioner for him to take a specimen of blood from a person ("the person concerned") irrespective of whether that person consents if—

that person is a person from whom the constable would (in the absence of any incapacity of that person and of any objection[...]) be entitled [...] to require the provision of a specimen of blood for a laboratory test;
it appears to that [police] constable that that person has been involved in an accident that constitutes or is comprised in the matter that is under investigation or the circumstances of that matter;
it appears to that [police] constable that that person is or may be incapable (whether or not he has purported to do so) of giving a valid consent to the taking of a specimen of blood; and
it appears to that constable that that person’s incapacity is attributable to medical reasons.

(2) A request under this section—

shall not be made to a medical practitioner who for the time being has any responsibility (apart from the request) for the clinical care of the person concerned; and
shall not be made to a medical practitioner other than a police medical practitioner unless—

it is not reasonably practicable for the request to made to a police medical practitioner; or
it is not reasonably practicable for such a medical practitioner (assuming him to be willing to do so) to take the specimen.

(3) It shall be lawful for a medical practitioner to whom a request is made under this section, if he thinks fit—

to take a specimen of blood from the person concerned irrespective of whether that person consents; and
to provide the sample to a constable.

(4) If a specimen is taken in pursuance of a request under this section, the specimen shall not be subjected to a laboratory test unless the person from whom it was taken—

has been informed that it was taken; and
has been required by a constable to give his permission for a laboratory test of the specimen; and
has given his permission.

(5) A constable must, on requiring a person to give his permission for the purposes of this section for a laboratory test of a specimen, warn that person that a failure to give the permission may render him liable to prosecution.

(6) A person who, without reasonable excuse, fails to give his permission for a laboratory test of a specimen of blood taken from him under this section is guilty of an offence.

(7) In this section "police medical practitioner" means a medical practitioner who is engaged under any agreement to provide medical services for purposes connected with the activities of a police force.

The doctor (or medical practitioner) that is clinically responsible for providing the immediate care for any person incapable of consenting AND the doctor (or medical practitioner) who the police request to take a blood sample both need to agree that a sample can be taken.

The blood sample cannot be sent off for police forensic laboratory testing unless and until any person who was incapable of consenting at the time has:

become capable of consenting, and
has been informed that a blood specimen was taken, and
has given their permission for the blood specimen to be subjected to a laboratory test

A person who, without reasonable excuse, fails to give such permission will be guilty of an offence.

Reference:

[1] Road Traffic Act 1988

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