January 6, 2020

Demands by the County Jail for Arrestee Medical Clearance

How many of your local police are dealing with being turned away from the county jail until the arrestee is medically cleared?  It is an area of growing concern for city police throughout the Commonwealth. Our police are being placed in situations where they feel compelled to get costly and time-consuming medical attention for an arrestee with very minor injuries or physical complaints. This medical treatment is obtained solely because the county jailer is flatly refusing to accept the arrestee without such medical clearance. The jailer compelling medical treatment of this type is misplaced under the applicable law and adds legally unwarranted time and expenses to our cities.

To put it simply, a jail demanding medical clearance for minor medical issues violates KRS 71.040 as interpreted by OAG 92-84 which remains the best authority available as to the statutory meaning of “emergency medical attention” as to arrestees.

KRS 71.040 states:

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.

OAG 92-84 offers the best guidance available when our city police are confronted by jailers unwilling to receive arrestees by claiming minor medical treatment must be obtained for the arrestee by the arresting officer.

The question presented in OAG 92-84 was, “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?”

OAG 92-84 noted that previous authority held that a jailer could not refuse to receive persons lawfully committed to him because they were sick or injured.[1] However, the attorney general noted that a 1984 amendment to KRS 71.040 now distinguished those previous OAG holdings.

The attorney general recognized that the 1984 amendment removes from the jailer, the duty to receive and keep an arrestee who needs emergency medical attention when offered for booking. Additionally, the amendment imposes on the arresting officer an affirmative duty to obtain emergency medical attention for an arrestee in need of this type of care before delivering them to the jail.

The attorney general recognized the distinction inherent in KRS 71.040 of “emergency medical attention” versus mere medical attention. The attorney general stated, “’ 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.”

The opinion also distinguished attention 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.

OAG 92-84 remains the best interpretation of “emergency medical attention” to mean a condition that, if not treated, might result in loss of life or grievous bodily harm, such as loss of sight or limb. A jailer’s refusal to accept a person for minor temporary issues such as the typical effect of drink or drug is not to the level to require “emergency medical attention” as used in KRS 71.040 and interpreted by OAG 92-84. Our cities should be aware of this authority and the KLC Department of Municipal Law and Training would be happy to provide copies of this opinion should it be needed. Please call Chris Johnson at 859-977-3709 or email him for assistance. 

1 - OAG 71-273, OAG 81-148, OAG 82-166, OAG 82-364, and OAG 83-324.