Forensic Examination through Intimate Search of For Drugs in a Detainee Who Refuses to Consent to the Examination

To start with, intimate search can be delineated as the physical examination of the detainee’s body oral cavity other than the mouth. Precisely, some of the regulations such as Police and Criminal Evidence Act 1984 (PACE) Code H 2014 compel the physician to first create informed consent to the detainee prior to be subjected to intimate search and other forensic assessments (Stark, 2011). Therefore, there is an elementary ethical principle that guides every medical practice that states the forensic examiner should not conduct an assessment, diagnosis or therapy on a competent adult without his or her consent. However, it is worthwhile to state that ethical obligation with regard to making informed consent prior to initiating the examination applies to every situation including the situation consent is not a legal requirement (McLay, 2009). Therefore, the issue of making informed consent to the detainee who refuses to consent to the examination might subject the examiner into a dilemma. As a result, there are some ethical, legal and professional issues that ought to be considered prior to conducting the intimate search to such a detainee.  Thus, this paper will lay its focus on the ethical, legal and professional issues that revolve around forensic examination particularly performing intimate body searches.

It is factual that the main issue in this case is based on the consent of the detainee on the examination to be conducted. Thus, it is worthwhile for the forensic physician to consider the issue of making informed consent to the detainee and the correspondent issues associated with it (Stark, 2011). To start with, alluding to the fact that consent is a fundamental principle for the practice of every healthcare service, the physician ought to understand the meaning and magnitude of consent in such a case. Therefore, for the consent to be regarded as valid, the detainee should be given precise, sufficient and pertinent information about the examination. However, this does not apply to every individual since the issue considers both sides. Precisely, the individual being examined ought to be competent enough to consider the matter and be able to make a subjective decision and conclusion (BMA, 2009). Additionally, these decisions made by the individual ought to be voluntary with regard to the issue of coercion. Consequently, there are different ways of compromising the ability of the detainee to give consent;

• The ability of the examinee to make a conclusion and choice might be influenced by fright, exhaustion, health status, drugs or even anguish (BMA, 2009).      
• Consultation might lack privacy which is one of the factors that can affect the willingness of the detainee to participate in inquiring about the examination prior to making a decision.
• Giving consent by the detainee might be as a reason of expectations on being released quickly which means that the individual might not consider the definite procedures to be performed (BMA, 2009).
• Rebuttal of conducting intimate search may coerce the detainee to give consent as it is seen to imply culpability.
• In some of the cases, it is factual that the detainee might not have a choice whether the search will proceed or not. The only choice offered to the detainee is whether the examination will be conducted by the physician or the detention officer (BMA, 2009).

Therefore, because of these forces, the examinee will be left incapable of giving the consent which can be regarded as valid. However, it is factual that these pressures do not reflect in all cases that demand valid consent (BMA, 2009). It is perceptible that in some circumstances, the pressure is exerted on the detainee intentionally, but the consent still comes out as valid. Thus, it is crucial for the forensic examiner who is assessing the consent validity to be aware of ways of compromising the competence of the detainee to consent and take those factors into consideration. This means that in our case, the forensic examiner might decide to get to the roots of the issue by assessing the reasons why the detainee has refused to consent (BMA, 2009). This is based on the fact that it is the basic obligation of the doctor to make informed consent to the patient prior to conducting any type of examination. Therefore, one thing is for sure that intimate searches cannot be conducted without the informed consent to the examinee.

The Ethical Duty of the Forensic Examiner

It is palpably factual that some of the doctors might decide that since the examinee is subjected to certain pressures, undertaking intimate searches will be impracticable regardless of whether the individual will give perceptible consent (BMA, 2010). This means that it is important to comprehend that regardless of the fact that there might be inevitable pressures for the detainee that might arise from the nature of being in detention, the detainee has the right and competence to make subjective choices. However, for instance, the detainee might not have the choice on enduring the intimate searches but may, nevertheless, have an option about the person conducting the examination; whether it will be the qualified forensic practitioner, or the detention officer (BMA, 2010). In this case, the option of the detainee is meant for just expressing his or preference on the issue. For instance, the person suspected to conceal the drugs in the rectum might decide of have intimate search in order to be released quickly which exhibits his preference. Therefore, doctors are advised that if they are contracted in organizations where intimate searches are conducted as a way of seeking agreement with the detention officers, except for emergency situations, they have to attend to perform examination only when the examination is proposed (BMA, 2010). However, this does not commit the physician to conducting intimate searches but rather allows the physician to have a dialogue with the examinee in order to ascertain his or her preferences. After ascertaining the wish of the detainee, the doctor is able to comprehend whether the detainee gives consent to the intimate search (BMA, 2010).

Professionally, the forensic examiner is obliged to make sure that whatever the choice the detainee makes, it is cited from the precise information based on the possible outcomes of the process. In assessing the accuracy of the information given to the detainee, the examinee should be informed on the following

• Rejection to give consent might force the detention officer to undertake the intimate search instead of being undertaken by the medical practitioner (BMA, 2010).
• Refusal might be regarded as culpability in the court.
• Refusal might pose a health risk particularly if the drugs are concealed in the rectum.
• Other risk might be associated with failure to give consent such as using other procedures apart from intimate searches by a professional medical practitioner (BMA, 2010).

Legal Basis

In the prologue, it is patent that the law provides that intimate searches undertaken on an incompetent person such as a child or a young person or a mentally handicapped individual ought to be carried out in the attendance of an appropriate figure of the same sex with the detainee (Grigorenko, 2012). However, this can be contradicted only if the examinee requests the presence of the specific person especially a person of opposite sex. Therefore, in this case, the requested person ought to be readily available with regard to the proposed date and time of conducting the intimate search (Grigorenko, 2012). Nevertheless, the case is different for the intimate searches undertaken on the juvenile as it is the opposite of what should be done for the mentally handicapped adults. For the juvenile’s case, intimate search ought to be undertaken in the in attendance of a suitable adult except if the juvenile asserts otherwise (Grigorenko, 2012). Additionally, the present adult ought to be selected by the child/young person being examined. Therefore, for this case, it is advisable that doctors should not undertake intimate searches unless the valid consent is present. This means that there is an extent of consent in this case that is regarded as valid. Thus, if intimate searches are not in the detainee’s best interests, it is recommendable that the doctor should not participate in the procedure regardless of the presence of the requested adult (Grigorenko, 2012).

The alternative option that exists if the detainee fails to give consent is extended detention for up to 8 days (192 hours) by using warrants that approve further custody (BMA, 2010). Therefore, acquiring the warrant can only be achieved if it has been confirmed that the supposed object is obscured in the rectum of the suspect or has been ingested through the mouth. However, this can be contradicted if there are undeniable reasons for instant action. However, there are several legal provisions that approve conducting intimate searches regardless of the absence of the detainee’s consent. It is factual that these statutes authorize physicians to conduct intimate search but do not oblige them to do so (BMA, 2010). However, doctors are recommended to participate in intimate searches where the condition of the detainee is life-threatening. Some of the statutes that approve undertaking intimate searches without considering the legal recourse include Police and Criminal Evidence Act 1984, Criminal Justice and Public Order Act 1994, and Drugs Act 2005 (BMA, 2010). These statutes provide that intimate searches may be conducted by the detention officer who must be at least of inspector rank and reasonably believes that;

• The detainee has concealed a substance in his or her body that can either cause injury to his or her body or can use it while still in detention (BMA, 2010).
• The person was arrested because of possessing Class A and concealing it in his or her body and had an appropriate criminal intent before being detained.

Precisely, some of the Class A drugs includes cocaine, heroin, methadone and any injectable drug substance except cannabis (BMA, 2010). Therefore, confirming the presence of these drugs can be done using X-ray or an Ultrasound after reasonable grounds for the intimate search are presented.

Conclusion

Citing from the delineation of consent on the legal basis, it is factual that offering any type of healthcare service to a patient ought to be done with the consent of the patient. Thus, prior to undertaking intimate searches on a detainee, the doctor ought to make sure that the person gives valid consent to the procedure. The consent is regarded as valid when the patient’s consent is not based on pressures that compel him or her to give the consent. However, regardless of the fact that the nature of detention might exert pressures to the detainee making him or her give invalid consent, there needs to be a certain extent of consent to be given by the detainee in order to regard it as valid consent. Therefore, ethics oblige the forensic examiner to assess the level of consent prior to undertaking the intimate body searches to the detainee and if the consent is not valid, the examiner will have to consider factors that determine the unsoundness of the consent. Therefore, as a forensic examiner, I would manage the implications of professional and ethical dilemmas through adherence to ethical and professional knowledge together with legal provisions on the issue. Citing from the professional, ethical and legal provisions, it is factual that they all support the notion that it is better to undertake intimate searches with the consent of the detainee. Therefore, prior to undertaking the procedure, it is better to have a conversation with the detainee in order to create an informed consent first. This means that we will have to work as a team in order to enhance the consent of the detainee and make it valid. Team work will be meant to make sure that pressures that make the detainee give invalid consent or refusal to consent are lowered and taken care of.  

References

British medical association (BMA) (2009). Health care of detainees in police stations. Department and the Faculty of Forensic and Legal Medicine.

STARK, M. (2011). Clinical forensic medicine a physician's guide. New York, Humana Press. http://public.eblib.com/choice/publicfullrecord.aspx?p=884429.

GRIGORENKO, E. L. (2012). Handbook of juvenile forensic psychology and psychiatry. New York, Springer. http://public.eblib.com/choice/publicfullrecord.aspx?p=884153.

McLay, W. D. S. (2009). Clinical forensic medicine. Cambridge, UK: Cambridge University Press.

British medical association (BMA) (2010). Recommendations for healthcare professionals asked to perform intimate body searches. Faculty of Forensic and Legal Medicine