You’ve heard the claim before. A well meaning partner or supervisor may have warned you. Or perhaps a field instructor or even an EMT instructor made the dubious claim. It sounded something like this, “We need to be careful about taking people to the hospital against their will. If they have the right to refuse care then we are kidnapping them.
These little bits of instruction are often well intentioned. And it remains true that people who have the right to refuse our care should be allowed to make decisions on their own. But I want to make it clear that, while the idea of accidentally kidnapping someone sounds dramatic and meaningful, it’s also completely false.
Discard the idea that taking people to the hospital against their will is “kidnapping”. It’s not.
I understand that statement will come as a surprise to many of you reading this. The “accidental kidnapping” myth is pretty popular in EMS. In fact, it’s been dropped so often that there are few EMS providers running around who haven’t encountered it at one time or another. Here’s the major problem with the claim, you just can’t accidentally kidnap someone.
Kidnapping is a malicious act. The term itself implies malicious intent. To understand better why it’s so improbable that you could ever be formally charged with kidnapping you need to understand the difference between kidnapping and false imprisonment. You also need to be familiar with your local laws regarding the use of force in special situations.
Let’s look at both of these in a little more detail:
1) Kidnapping vs. False Imprisonment.
Kidnapping occurs when a person, without lawful authority, physically moves another person without that other person’s consent, with the intent to use the abduction in connection with some other nefarious objective. Kidnapping is a criminal act punishable by imprisonment.
False imprisonment is the illegal confinement of an individual without his or her consent by another individual in such a manner as to violate the confined individual’s right to be free from restraint of movement. False imprisonment is primarily a civil claim, meaning that a guilty verdict typically involves the awarding of damages (Money). It can also be considered a misdemeanor crime with punishment of up to a year in jail in some areas.
It’s that second half of the definition of kidnapping that rules out a bogus EMS transport as a possible kidnapping. For an EMT to be found guilty of kidnapping, there would need to be some evidence that there was a nefarious or malicious objective to the hospital transport.
Unless you are transporting the patient somewhere other than the hospital or possibly planning on ransoming them back to their family, I wouldn’t be too worried about becoming an unwitting kidnaper. We do, however need to be careful that we do not falsely imprison a patient.
Holding an individual against their will for the purpose of medical transport and evaluation is not an act of kidnapping. It may, in some extraordinary circumstances, constitute an act of false imprisonment and we should take care to avoid this.
2) The use of physical force in special relationships.
The second layer of legal protection afforded to most EMT’s in America (and many other countries around the globe) are specific legal statutes that allow for the use of force in special relationships. Special relationships include the relationship between a legal guardian and a child, an operator of a bus and a passenger or a medical professional carrying out their duties.
While these protections vary from state to state, they are fairly universal. As an example, here in Colorado, our legal statute falls under Colorado Revised Statute 18-1-703. Use of physical force – special relationships.
It begins: The use of physical force upon another person which would otherwise constitute an offense is justifiable and not criminal under any of the following circumstances:
Here is part C: (c) A person responsible for the maintenance of order in a common carrier of passengers, or a person acting under his direction, may use reasonable and appropriate physical force when and to the extent that it is necessary to maintain order and discipline.
And here is part D: (d) A person acting under a reasonable belief that another person is about to commit suicide or to inflict serious bodily injury upon himself may use reasonable and appropriate physical force upon that person to the extent that it is reasonably necessary to thwart the result.
And a bit more in part E: (e) A duly licensed physician, advanced practice nurse, or a person acting under his or her direction, may use reasonable and appropriate physical force for the purpose of administering a recognized form of treatment that he or she reasonably believes to be adapted to promoting the physical or mental health of the patient.
So here we see an additional layer of protection that makes it extremely difficult to charge an EMT with a crime when they are acting in good faith. And that might be the real key right there.
Act in good faith, with the best intentions of your patient as your primary concern, and don’t worry too much about kidnapping anyone. Try not to get too caught up in the fear based war stories about EMT’s languishing in prison for crimes they unintentionally committed.
Acting in your patients best interest, while respecting their rights, is always the best policy.
Now it’s your turn: Have you been scared by well meaning instructors to avoid “kidnapping” patients? Have you heard the cautionary tales? How do you respond? Leave a comment and join (or start) the discussion.