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Forensic nurses are faced with making an ethical decision when an unconscious patient presents with signs of sexual assault. If the patient is unable to consent, the nurses need to decide whether or not to perform a forensic exam. Hospitals have policies in place regarding consent for emergency care, but not all of them consider the collection of forensic evidence. The window of opportunity for forensic collection may disappear before contacts are made or proper consent is established. Ethical, legal, and policy considerations that complicate this scenario are discussed.

1. Background

Forensic nursing practice takes place in the context of a health care system as it intersects with the social, public health and criminal justice systems [1]. This complex integration of systems requires the forensic nurse to evaluate multiple concerns when conducting a patient assessment. Evidence collection becomes a dilemma in the unconscious patient, as illustrated in the following case. Forensic nurses need a model for ethical reasoning in order to provide care aligned with needs of patients and with ethical standards shared by nursing professionals. Whatever model is used, it must consider the patient as he or she intersects in this complex system. No system is ever static and it is important to review professional guidelines and practices as more evidenced-based information becomes available. Models for ethical reasoning should reflect on all the relevant issues of a patient case or situation. One model for ethical reasoning suggested is the Nurses Ethical Reasoning Model [2].

Case Study

It starts as another hectic Saturday night in the emergency department, when an unconscious woman with serious injuries arrives by ambulance. Immediately the staff suspects sexual assault due to the nature of her injuries, the placement of her clothes on her body, and the location where she was found. The forensic nurse is consulted. No other details are known; she is intubated and prepped for surgery with placement of an indwelling urinary catheter. The forensic nurse knows the importance of collecting valuable evidence before it is lost or destroyed during surgical preparation, or during the process of providing medical care. Next of kin or significant others are not yet identified or located.

It is important to collect evidence quickly when sexual assault is suspected, as forensic evidence is fragile and can quickly disappear. While the life-saving procedures are covered under the principle of implied consent [3], the collection of evidence is not necessarily covered in the state or province where many nurses practice. Forensic nurses confronted with this situation must know the guidelines for evidence collection.

2. Literature Review

Discussion in the literature primarily focuses on the unconscious female sexual assault patient. The British Columbia Network [4] evaluated this forensic issue and made the decision to oppose collection of evidence in the unconscious sexual assault patient. They evaluated the literature, involved their community of professionals along with input from sexual assault survivors as they considered their policy. Their opposition follows from both their legal and ethical stance.

From the legal perspective, the British Columbia Network (BCN) used the Canadian Medical Association that only allows the provision of life-saving medical procedures without consent. Collection of evidence is not a life-saving procedure. From the ethical perspective, the BCN used a feminist framework, focusing on women's health issues and the adherence to the philosophy of the importance of safety, autonomy, and returning control to the survivor. The BCN contends that performing evidence collection without consent may make patients feel loss of control; thus, they maintain their perspective is consistent with their philosophy and what they know of their community.

The BCN's evaluation assumes that evidence collection is an invasive, non-medical procedure that would submit a person to a demeaning procedure that may victimize the individual even further. They also maintain that evidence collection under these circumstances supports a legal system that the patient may or may not use. Although the BCN is conclusive about forgoing a forensic evaluation with collection of evidence, they did allow an exception that forensic evidence may be taken if discovered during the course of the medical evaluation and kept until consent is obtained.

The case for promoting the collection of evidence is primarily done with caveats, or conditions that require patient anonymity, or a provision for holding evidence until consent for release is obtained either by the patient, or a surrogate decision-maker such as a family member, guardian or judge. Pierce-Weeks and Campbell [5] argue that evidence collection has become a standard of care in the Emergency Department and to not take evidence is to fall short of that gold standard of care. They maintain that non-emergent care is routinely given along with emergent care; therefore a thorough medical/forensic examination does not violate any standards of care. Evidence collection during the examination would not be considered invasive or in violation of the patient. Some states allow for the collection of evidence in an "anonymous fashion, without report to law enforcement; in this case the identity of the patient is kept confidential until the patient decides whether to make a report" (p. 108). These states have given thoughtful consideration to patient choice, autonomy, consent, and confidentiality.

Carr and Moetus [6] reviewed both [4] [5] articles. While acknowledging the importance of the Lee article [4], they did not agree a strong case was made against collecting evidence. They agreed with Pierce-Weeks, to collect evidence and wait for consent from the patient or the courts. In addition, they advocate "Many patients will want the choice on whether to talk to the police or report a sexual assault. If the evidence is not gathered, then part of that choice is taken away from the patient" (p. 649). Evidence can be collected and saved until the patient requests, or the court orders the evidence be turned over to the police. If no report is made, or court order is received, the evidence would be destroyed.

These articles provide a solid place to start examination of the complexity of the issues. Other articles are discussed further regarding how to develop protocols or provide further guidance in clinical situations. Before turning to further discussion of the issues, it is helpful to review the basic elements of the forensic nursing exam.

3. Forensic Examination

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Jennifer L. Johnson, RN, BSN, MSN, APRN, CFN, SANE-A, SANE-P, is a Board Certified Nurse Practitioner, Certified Forensic Nurse, and Board Certified Sexual Assault Nurse Examiner for pediatric, adolescent, and adult cases.

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