Request By:
Hon. Charles Marcum
Jailer of Clay County
Clay County Jail
115 Court Street
Manchester, Kentucky 40962
Opinion
Opinion By: Chris Gorman, Attorney General; Gerard R. Gerhard, Assistant Attorney General
You ask: What is the duty of the jailer, and what procedures should be followed, when the jailer is confronted by an arrestee who has been delivered to the jail by police officials, and who is obviously in need of medical attention , but cannot or will not consent to medical treatment ?
You explain that you have encountered the problem of police officers bringing in severely injured arrestees who are in need of medical attention. Several of the arrestees, your letter indicates, have refused medical attention on various grounds, and the officers have stated that once within the premises of the jail, the arrestees are no longer their responsibility.
In our view, given the amendment of KRS 71.040 in 1984, a jailer is not required to accept for booking, an arrestee in need of emergency medical attention , unless the jailer is provided with either: (1) a medical professional's statement that emergency medical attention has been given the arrestee named on such statement, and necessary treatment provided to, or declined by, the arrestee, or (2) information, verbally or in writing, from an officer attempting to book a prisoner, indicating, at a minimum, where, and that within a reasonable time prior to attempted booking, a prisoner was offered emergency medical attention, and that the prisoner refused such attention, or alternatively, that such attention was provided and treatment, if recommended, was either accepted or refused. The responsibility of an officer for obtaining emergency medical attention for an arrestee in need of such attention, does not end when an arrestee is merely placed "within the premises of the jail. " Discussion follows.
In a number of prior opinions of this office, it was observed that a jailer could not refuse to receive persons lawfully committed to him just because they were sick or injured. See, for example, Opinion of the Attorney General (OAG) 71-273; 81-148; 82-166; 82-364; and 83-324. Those opinions, however, were issued prior to amendment of KRS 71.040 by the 1984 General Assembly (Acts, 1984, ch. 141, § 7). They are not consistent with current Kentucky law related to your question, and are thus distinguished accordingly.
The amendment of KRS 71.040, added, in part, the language underlined below, so that such provision now reads:
At the time of booking, the jailer shall receive and keep in the jail all persons who are lawfully committed thereto, until they are lawfully discharged, unless the person is in need of emergency medical attention, in which case the arresting officer shall obtain medical attention for the person prior to delivery to the jail . The jailer shall treat them humanely and furnish them with proper food and lodging during their confinement. He shall deliver those who die in jail to their friends, if requested, or have them decently buried at the expense of the county.
(Emphasis added.)
The language added to KRS 71.040, on one hand, removes from the jailer, the duty to receive and keep an arrestee who, when offered for booking, is in need of emergency medicalattention . On the other hand, the language imposes on an arresting officer, an affirmative duty to obtain emergency medical attention for an arrestee in need of such attention, prior to delivering such person to the jail.
Several points should be emphasized given the wording of your question, and the factual background presented in your letter.
" Emergency Medical Attention" vs. "Medical Attention "
First, KRS 71.040 provides that an officer obtain "emergency medical attention" for one in need of such attention, prior to delivery of such person to jail. The language of KRS 71.040 addresses an arrestee in need of emergency medical attention, not merely "medical attention, " as described in your letter. Thus, although an arrestee might need "medical attention" at the time he or she is offered for booking, it is only a need for "emergency" medical attention that will trigger the duty of an arresting officer to obtain "emergency medical attention" for an arrestee in need of such attention, prior to delivering an arrestee to the jail.
"Emergency medical attention, " as used in KRS 71.040, we believe, refers to a condition that, if not treated on an emergency basis, might result in loss of an arrestee's life, or in grievous bodily harm, such as loss of sight or a limb.
Emergency Medical "Attention" Distinguished from "Treatment "
The term "attention," as used in KRS 71.040, means, at a minimum, professional medical evaluation of a condition requiring, in the jailer's judgment, "emergency medical attention." The term, "attention" as used in KRS 71.040 does not equate with the term "treatment." If "attention" as used in KRS 71.040 is defined as synonymous with "treatment," arrestees, by mere refusal of "treatment," could avoid incarceration.
An arresting officer, as required by KRS 71.040, must obtain "emergency medical attention" for one in need of such attention, prior to delivery of one in such need to jail. Upon obtaining such "attention," an officer ideally should obtain a legible statement signed and dated by a physician, or other medical professional, identifying the arrestee, and indicating that emergency medical attention has been given the arrestee, and that necessary treatment was also given, or, alternatively, was declined by the arrestee.
In the event an arresting officer is unable to obtain a written statement from a medical professional as indicated above, he or she should note, preferably in writing, the date, time, where, and by whom, emergency medical attention was provided to an arrestee in need of such attention, as well as other pertinent facts.
Procedure
Procedurally, if an arrestee, who appears to the jailer to be in need of emergency medical attention, is presented to a jailer for booking, the jailer should advise the officer attempting to book such person of such fact, and state the possible condition involved for which emergency medical attention is believed needed. The jailer should, prior to accepting the individual for booking, request that the arresting officer provide either a statement from a medical professional as described above, or provide particulars, preferably in writing, indicating the date, time, place, and provider of emergency medical attention for the condition of concern.
The jailer may, in our view, refuse to accept for booking, a prisoner, who, in the jailer's judgment, is in need of emergency medical attention , if the arresting officer does not provide either a statement as described above, or, credible information indicating that such attention has been provided in relation to the condition of concern. KRS 71.040; Cf ., Kentucky Administrative Regulations (KAR) 501 KAR 3:120 Section 2(1), and Kentucky Jail Policy and Procedures Manual , Ky.Corr.Cab., 1983, IV-100, IV-200 (copies enclosed) .
Both the jailer and an arresting officer should carefully document the facts involved where an arrestee is in need of emergency medical attention.
We do not believe the legislature, in passing the amendment noted, intended to create a legal circumstance that would force a law enforcement officer to retain custody, in a car or wagon, of an arrestee in need of emergency medical attention , or that would enable arrestees, to avoid or delay their incarceration through refusal of such attention. Rather, the legislature sought to establish a standard that would place a reasonable burden on those in "first contact" with an arrestee, to obtain prompt emergency medical attention where such need is indicated, while at the same time minimizing the burdens imposed on a jailer. Any other interpretation of the meaning of KRS 71.040 would create an unworkable situation for law enforcement authorities.
Transfer of Responsibility
The claim you indicate is made by some officers, that an arrestee, once within the premises of the jail, is no longer their responsibility, is not consistent with the law of this state. The language of KRS 71.040, for example, refutes such notion. Certain responsibility for an arrestee formally transfers when an officer attempting to book a prisoner at the jail, having provided necessary information and documentation to the jailer, signs the intake form (See 501 KAR 3:120, Section 2(3), and, Kentucky Jail Policy and Procedures Manual , § IV-300, 1.f., copies enclosed) . Certain responsibility for an arrestee might also transfer from an arresting officer to the jailer if the jailer actively assumes physical custody of an arrestee.
As a practical matter, during the booking process, custody should be viewed as a joint or shared responsibility of both the jailer and an arresting officer, as for example, while the intake form is being filled out. Merely "putting an arrestee within the premises of the jail" does not transfer responsibility from an arresting officer to the jailer.
We suggest consulting personnel of the Kentucky Correctins Cabinet's Division of Local Facilities, 502-564-7290, for detailed advice or development and implementation of procedures related to prisoners in possible need of emergency medical attention.