Baltimore City Department of Social Services v Bouknight and Tarasoff v. Regents of University of California

The fields of sociable sciences and the legal system retain scram inextricably linked in response to the development of system processes to assistant in problem solving. Each of the fields informs the other, utilizing their respective extensive expertise and knowledge-based literature to apportion the jubilateing ch exclusivelyenges in the society. In the desire to plow the complex criminality and societal problems that beset the nation, the legal system and the pr wreakitioners of hearty sciences argon inevitably linked so that the knowledge base and expertise of one idler collaborate with the other and vice versa.The development of remedy jurisprudence became an imperative, each field having an imp exploit on the other towards the construct of systemic processes to solve societys problems. The civil liberties accorded infra the snout of Rights be safeguards against the vast powers of establishment. Their existence and observance ensure singles from the undue regul arizemental interference and intervention. One of these franchises is the aright against self-rap. In the roles of U. S. v. vigor, (465 U. S. 605) and push v. U. S. 487 U. S.201, 209 (1988), the motor lodge enumerated the 3 (3) requisites that should be posit for the twenty percent Amendment to apply, namely a) that the offerment be tri thate b) criminatory and, c) induceled. However, in the graphic symbol of Baltimore City de federal agencyment of complaisant run v Bouknight, the defendant was marked incarcerated for refusing to stop the where or sos of her s contractr who was believed to be abused. The speak to ruled that the favor is inapplicable considering that what was demanded of Bouknight was non testimonial in purpose.Moreover, presumptuous that it was, the judicature ruled that as between the individual right and globe engage the latter should prevail. The safeguard and swell being of a child is a matter of earth interest and on that pointf ore Bouknight fuck be compelled to disclose the necessary information. In the depicted object of Tarasoff v. Regents of University of California, the tap ruled that a therapist/physician can interruption his obligation of undercoverity with respect to matters unwrap by his forbearing of of in the course of intercession by example the readily identifiable per watchword of the peril or disparage to his life.This tariff to upbraid is countenanced by integrity or by the formula of honorables of physicians. This persuasion excessively serves as an exception to American negligence cases where peculiar(a) relationship of parties essential be held to exist. Baltimore City section of well-disposed serve v Bouknight, 488 U. S. 1301 (1988) A tercet month old infant was admitted for treatment in a hospital. It became app bent that the mother, Jackie Bouknight whitethorn leave maltreated the infant.Consequently, the Department of societal Services (DSS) petition ed the judicature to declargon the child as a child in need of assistance and commit it the power to set up the child low foster care (Baltimore City Department of Social Services v Bouknight, 488 U. S. 1301 (1988). The Court granted relief and it was agreed upon by the parties that Bouknight shall book the custody of the child subject to the conditions of supervised parenting and an undertaking of non-infliction of material harm and punishment on the child. At first, Bouknight complied with the conditions but later on she became uncooperative and refused to produce her son to the DSS.The DSS in fear for the pencil eraser device and well being of the child filed a case in front the Court to compel Bouknight to produce her son. She failed to appear before the Court but was later on arrested. On her refusal to disclose the whereabouts of her son, she was found guilty of contempt and was ordered to be incarcerated until compliance with the order In re Maurice, zero(prenominal ) 50 (Dec. 19, 1988). 314 Md. 391, 550 A. 2d 1135. On certiorari, the Court of Appeals of Maryland ruled that the incarceration of Bouknight was an infringement of her Fifth Amendment right against self incrimination.According to the Court, the production of the son is testimonial in nature be behave by doing so, it only proves Bouknights continuing control over her son which may be utilized in a criminal proceeding. It ruled that there are acts of production deemed to have testimonial value citing the case of U. S. vs. Doe (Baltimore City Department of Social Services v Bouknight, 488 U. S. 1301 (1988). The U. S. overbearing Court granted the stay of DSS pending the filing of the requisite petition for certiorari.The grant of stay was based on the fact that even assuming that the act of production of the child is testimonial in character, many boundary of conclusions of the Court are clear that as between the world need similitude a single claim of an individual on innate cl aim, the former(prenominal) is upheld. In this particular case, the safety and interests of the abused child must be upheld over Bouknights assertion considering that, in the hierarchy of values, the safety and well-being of the child takes precedence over other concerns (Baltimore City Department of Social Services v Bouknight, 488 U.S. 1301 (1988). Moreover, the information sought which is the whereabouts of the child is for the contempt jerk and therefore civil in nature (Baltimore City Department of Social Services v Bouknight, 488 U. S. 1301 (1988). The Fifth Amendment Right against Self-Incrimination The Fifth Amendment originated from England and derived from the Latin saw nemo tenetur seipsum accusare meaning no man is bound to accuse himself (Levy, 1968). It was used in both the accusatorial and inquisitorial legal systems of England (Levy, 1968). In the U.S. , after the transformation the states ratified the writing with the inclusion of the exemption in the bill of rights. The authoritative version of Madison was amended by the House to let in in any criminal case (Schwartz, 1971). Thus, as it now stands, the Fifth Amendment provides, . . . nor shall be compelled in any criminal case to be a knowledge against himself . . . (U. S. Constitution, Bill of Rights). The primary purpose of its inclusion in the Bill of Rights is to nurse the innocent and to further the search for truth Ullmann v.United democracys, 350 U. S. 422 (1956). However, in subsequent line of decisions, the Court ruled that other favors stated in the bill of Rights are more in the nature of adjuncts to the determination of truth such(prenominal) as the right to counsel or the safeguards afforded by the Fourth Amendment while the privilege against self-incrimination is primarily for the preservation of the accusatorial system of criminal justice. This maintains the integrity of the discriminative system and protects the privacy of the individuals from government intrus ion Miranda v.Arizona, 384 U. S. 436, 460 (1966) Schmerber v. California, 384 U. S. 757, 760765 (1966) California v. Byers, 402 U. S. 424, 44858 (1971). The privilege is a guarantee against irresistible impulse for testimonial endorse which consequently provide result in the imposition of criminal penalty on such person making testimony. The Court laid down the requirements necessary before a party can successfully invoke the protection of the privilege against self-incrimination. In the cases of U. S. v. Doe, (465 U. S. 605) and Doe v. U. S. 487 U. S.201, 209 (1988), the Court enumerated the threesome (3) requisites that should be present for the Fifth Amendment to apply, namely a) that the statement be testimonial b) incriminating and, c) compelled. According to the judgeship, testimonial refers to all communications whether express or implied which relate to a factual assertion or disclose information (Ashby, J. , 2006 citing Doe v. U. S. , 487 U. S. 201). The statements or communications made whether verbally or in writing fall indoors the privilege (Ashby, J. , 2006) and is non limited by the forum where it was elicited, i. e.before the court, administrative minutes or before the rightfulness enforcement office Lefkowitz v. Turley, 414 U. S. 70 (1973). The second requirement, incriminating refers to statements that can be used as a basis for a finding of criminal liability under a penal law or provides a link to the chain of evidence for prosecution under a criminal statute United States v. Hubbell, 530 U. S. 27 (2000). The third requisite is the fate to give a statement. The Court explained that this requisite refers to mint that deny the individual a free choice to admit, to deny, or to refuse to answer (Ashby, J., 2006). Additionally, the Court ruled in the case of Fisher v. United States that these three requisites should all concur and be present so that the privilege can be successfully invoked 425 U. S. 391(1976). Legal and Ethical Iss ues and their Impact on Social reckon perform The main legal issue in the case of Baltimore is whether the circumstances surrounding it would fall within the ambit of the privilege against self incrimination and consequently, Bouknight may successfully invoke it and prevent her from being compelled to produce or furnish the whereabouts of her son lest be incarcerated for contempt.The imperative Court allowed the stay of the decision of the appellate court for overturning the ruling of the juvenile court and in finding that the compulsion for Bouknight to produce her son squarely fell within the privilege and therefore ordered her release (Alderman and Kennedy, 1992). The appellate court found that the act of production is testimonial and therefore its compulsion, is a violation of the privilege. Furthermore, the interest of the government in the safety of the son cannot outweigh the observance and respect for the privilege against self incrimination as provided in the Bill of Rig hts (Alderman and Kennedy, 1992).In other words, the three requisites concurred, i. e. the act of production or of furnishing information as to the whereabouts of her son are incriminating and testimonial in character and, there was also compulsion be font if she failed to disclose information sought she would be incarcerated for contempt as what had happened. The Supreme Court through Chief Justice Rehnquist predicated his discussion on three major points, namely a) The Court of Appeals passed upon a controversy concerning the federal Constitution which logically can be properly resolved by the U. S.Supreme Court (California v. Riegler, 449 U. S. 1319) b) The act of production does not fall within the ambit of the privilege citing the cases of U. S. v. Doe, Fisher v. U. S. and Schmerber v. California. In these cases, the court ruled that the act of production of the documents is not testimonial and therefore does not infringe upon the privilege considering that their existence and jam are already known to the administration. In fact, responding to a subpoena have been considered legal and withdrawable even if compulsion is present Fisher v. United States, 425 U.S. 391 (1976). Moreover, when an criminate is ask to furnish his handwriting sample, this had been held not to violate the privilege because it is not testimonial but merely evidentiary United States v. Flanagan, 34 F. 3d 949 10th Cir. 1994). The third point c) is by using the balancing of interests test or balancing the public need vis-a-vis ensuring the individuals constitutional civil liberties, public need prevailed considering that the apocalypse of information was non-criminal and not direct at a particular group as was held in the case of California v.Byers, 402 U. S. 424 (1971) where the validity of a law requiring disclosure of the name and address at the scene of a vehicular accident. Similarly in the case of New York v. Quarles where the Fifth Amendment rights have to give way to a pub lic safety exception and therefore in the case of Bouknight, the public safety exception to the Fifth Amendment was justified because its interest was in protect children kindred Maurice, not in prosecuting (Alderman and Kennedy, 1992).In sum, the privilege against self-incrimination is not an absolute right. Albeit the civil liberties accorded under the Bill of Rights safeguards undue government intervention and restraint to its power, there are instances when these rights would have to give way to compelling interests of the society that would warrant Government intervention and intrusion such in the case of protecting and ensuring the safety of infants or children from physical abuse.Once it has been established that a child is abused, it becomes the work of the State to take over and protect. The judicial pronouncement in the case of Bouknight has a pervading and far reaching implication on social work practice. This gives the social workers a great burden and responsibility t o follow up sharply abused children in foster care or those released under an order of preventative supervision. Admittedly, there is an apparent lack of strict protocols in the present system of child welfare agencies (Parks, 2005).A set of guidelines must be crafted to govern exigencies of missing children from foster care like supervised visits and court orders in cases of abduction like what have occurred in Maryland with Ariel who had been abducted by his mother Teresa B (Parks, 2005). Guidelines should also be drawn to address the coordinated efforts both with the law enforcement and child welfare personnel. Tarasoff v. Regents of University of California, 17 Cal. 3d 425 A graduate student from India, Prosenjit Poddar went to the University of California Berkeley to study naval architecture.It was there that he met Tatiana Tarasoff. A some kisses made him believe that they have a special relationship until Tarasoff bragged about her many relationships with other men. Podda r suffered depression until he sought professional jockstrap from Dr. Moore, a psychologist of the University Health Service. He confided to the doctor that he intended to ascertain a gun and to kill Tarasoff. On the strength of a letter request of Dr. Moore, Poddar was taken by the campus police, however upon assurance that Poddar was reasonable he was released.Upon the return of the University Health psychiatrist from his vacation, he ordered the destruction of Dr. Moores letter and did not recommend any further action on Poddars case. When Tarasoff returned from her vacation, she was stabbed and killed by Poddar who at that time moved in with her brother already. The parents of Tarasoff sued the Regents of the University, its health personnel namely, Gold, Moore, Powelson, Yandell and the campus police namely, Atkinson, Beall, Brownrigg, Hallernan, and Teel for failing to caution their daughter of an threatening risk of infection (Tarasoff v.Regents of University of Califor nia, 17 Cal. 3d 425). At the lower court, the complaint was laid-off because there was no cause of action. According to the lower court, the defendants only had the responsibility to the long-suffering and not to a third party. The dismissal was appealed to the Appeals Court but which only sustained the dismissal. Thus, it was elevated to the Supreme Court of California. The appealed decision in so far as the university police officers, Atkinson, Beall, Brownrigg, Hallernan, and Teel finding them not conjectural to the plaintiffs was affirmed.However, in so far as the therapists and the Regents of the university, the appealed decision was overturned for reception of evidence in accordance with the pronouncements of the Supreme Court (Tarasoff v. Regents of University of California, 17 Cal. 3d 425). In fine, the complainants averred four (4) causes of action, namely a) Failure to detain a perilous enduring b) failure to warn on a perilous patient c) abandonment of a dangerous patient and, d) breach of primary tariff to patient and the public (Tarasoff v.Regents of University of California, 17 Cal. 3d 425). Anent the first and fourth causes of action, the Supreme Court ruled that the defendants cannot be held nonresistant because of a specific provide of the Government Code or Section 856 thereof which grants immunity to public employees from any resultant damage or injury from deciding whether or not to confine a person with mental ailment. This provision is also applicable to the therapists because the law also refers to those who are capable of recommending confinement.As regards the third cause of action, the government immunity includes the award of exemplary damages resulting from a wrongful death and therefore, defendants cannot be held liable (Tarasoff v. Regents of University of California, 17 Cal. 3d 425). Anent the second cause of action, the Supreme Court found defendants therapists and Regents of the University to have failed to comply wit h their province to warn Tarasoff of the peril to her life.Albeit, the therapists had no direct relations with Tarasoff, they could have reasonably foreseen the danger and threat to her life as confided by their patient, Poddar. This is the point where the law establishes the province of care on their part to warn Tarasoff. Their failure to warn her may reasonably concluded as a proximate cause of her death. The province of confidentiality between patient and psychotherapist and the right to privacy of the patient cannot prevail over public interest or public safety. Moreover, there are clear provisions of laws, i.e. Section 1024 of the Evidence Code and Section 9 of the Principles of Medical Ethics of the American Medical Association which allows the physician to divulge matters confided to him in confidence when it is necessary for public welfare (Tarasoff v. Regents of University of California, 17 Cal. 3d 425). Confidentiality The effective therapeutic relationship between phy sician/psychiatrist and patient rests largely on trust that matters confided by the patient during the treatment are kept in strictest confidence by the physician/psychiatrist.It is the good calling of the physician to observe privacy and confidentiality of his patients (Corbin, 2007). While it is also of public interest to ensure that treatment of those who are mentally ill by maintaining an zephyr whereby they can have an open dialogue with their therapist and of safeguarding its confidential character the same public interest calls for an imperative recognition of instances whereby disclosure of the confidential communications be revealed and be made to safeguard public safety and avert the peril peril.In the instances, where the public safety is at risk, the therapist must disclose confidential information discreetly with due regard to protecting the privacy of his patient (Tarasoff v. Regents of University of California, 17 Cal. 3d 425). The parameters of confidentiality ar e outlined by law and by the ethical code of conduct for practitioners in the territorial reserve jurisdiction. In the case of Tarasoff, the Evidence Code and the Principles of Medical Ethics of the American Medical Association provided specific and limited exceptions under which the confidentiality privilege can be breached, i.e. if the psychotherapist has reasonable cause to believe that the patient is in such mental or emotional condition as to be dangerous to himself or to the person or property of another and that disclosure of the communication is necessary to prevent the threatened danger unless he is necessary to do so by law or unless it becomes necessary in order to protect the welfare of the individual or of the community (Tarasoff v. Regents of University of California, 17 Cal. 3d 425).It would be wise for the practitioners to familiarize themselves of the limits of confidentiality as provided under the laws considering that it may differ from state to state. The Taraso ff case provided a basis to guide a practitioner in his professional dealings relative to the affair to warn others in cases of a specific threat of harm by his patient against others/another. Subsequent cases followed the consistent pattern of the jurisprudence laid down by the Supreme Court. In the case of David v.Lhim (1983), the plaintiff-administrator of the estate sued the psychiatrist who treated the son who killed his mother after he was released from the hospital. There was failure on the part of the psychiatrist who treated the son to warn the mother of the potential danger after her son confided his intentions of killing her (Corbin, 2007). In another case, Chrite v. U. S. (2003), the Veterans Administration was held liable for having failed to warn the intended dupe of a patient of a threatened harm.Subsequent rulings of the court clarified and defined what constituted threat as impendent threat of serious danger to a readily identifiable victim and specific (Corbin, 2007). When there are no specific provisions of the law, Dickson (1998) proposes that the therapist/practitioner may be protected against lawsuits if he would consult and keenly document the case of the patient or comply with the mandated reporting guidelines required by some states.Reamer (2003) on the other hand, suggests that the therapist must have evidence that the patient is a threat to the safety of another evidence of that the threat can be foreseen threat is imminent and that the potential victim is identifiable. Legal and Ethical Implications and their Impact on Social Work Practice The duty of reasonable care to assist others in danger is a legal duty as well as a lesson duty. However, American negligence law only recognizes it as a moral duty except when there exists a relationship between parties.In the case of Tarasoff, no special relationship existed between the therapist and Tarasoff however the court has made an exception to this general rule (Bickel, 2001). It dec lared that the therapist has the duty to care and to warn Tarasoff of the imminent harm on her life. This also includes the duty to control the conduct of his patient, Poddar. In the same breath, a doctor has the duty to warn his patient if he has a contagious disease (Saltzman and Furman, 1999).There is an optimistic duty for the therapist to advise and warn Tarasoff of the threat to her life although this meant breach of confidentiality with his patient Poddar. This finds basis both legally and ethically considering that the law and the code of ethics for doctors have recognized and provided specifically that doctors are bound to disclose relevant facts to others even if this violates confidentiality with their patients provided they are required by law or if it is required for public safety (Saltzman and Furman, 1999).This legal duty to warn applies when the threat is specific and imminent and where the victim is readily identifiable (Bickel, 2001). The courts also have recogniz ed the difficulty in assessing and predicting circumstances that may lead to harm or violence and consequently, adhered to the professional judgment rule whereby the therapist is not held liable for errors of judgments. Liability attaches only upon showing that the conduct of the therapist was not in accordance with the accepted professional standards (Bickel, 2001).There is an ambivalence that was created by the Tarasoff tutelar disclosure ruling with the practitioners (Kachigian and Felthous, 2004). Analogous cases and protective disclosure statutes in the dissimilar states were analyzed and it was discovered that there are no clear defined parameters of these duties. The therapist is required to a certain way betray his patient by disclosing matters which are protected by confidentiality.Considering the uncertainty brought about by the legal doctrine and court decisions, the undesirable consequence of which was deterrence for therapists to accept treatment potentially violent p atients (Merton, 1982). Moreover, therapists are more inclined to have their patients committed in an institution so that threats to the safety of potential victims can be averted. The Tarasoff protective disclosure was even extended recently to include even communications made from a patients family component as pronounced by the Court in the case of Ewing v. Goldstein (May and Ohlschlager, 2008).The enigmatic jurisprudential precedents by the courts in interpreting the protective disclosure statutes or its resort to common law instead of interpreting the statute left(p) a vacuum in the definition of the duty to protect (Kachigian and Felthous, 2004). As a result, clinicians must continue to rely on their clinical and ethical judgment, rather than statutory guidance, when considering potential protective disclosures or future drafts of protective disclosure statutes (Kachigian and Felthous, 2004). References Alderman, E. and Kennedy, C. (1992). In our defense the bill of rights in action.First Avon Books edition. Ashby, J. (February 2006). Note declining to state a name in consideration of the fifth amendments self-incrimination article and law enforcement databases after Hiibel. Michigan police force Review, No. 4, Vol. 104779. Baltimore City Department of Social Services v Bouknight, 488 U. S. 1301 (1988). Bickel, R. Revisiting Tarasoff v. Regents of University of California the scope of the psychotherapists duty to control dangerous students. Presented before the 2second Annual Law and higher Education conference in Clearwater, Florida on 18-20 February 2001.California v. Byers, 402 U. S. 424, 44858 (1971). Corbin, J. (Fall 2007). Confidentiality and the duty to warn Ethical and legal implications for the therapeutic relationship. The New Social Worker, Vol. 14, No. 4. Dickson, D. T. (1998). Confidentiality and privacy in social work. New York The Free Press Doe v. U. S. , 487 U. S. 201, 209 (1988). Fisher v. United States, 425 U. S. 391 (1976). Kachig ian, C. and Felthous, A. (September 2004). Court responses to Tarasoff statutes. Journal of American Academy of abnormal psychology and Law Online, Vol. 23263-273.Levy, L. (1968). Origins of the fifth amendment The right against self-incrimination. May, S. and Ohlschlager, J. (2008). California alert Tarasoff ruling expanded for clients who go off. ECounseling. American Association of Christian Counselors. Merton, V. (1982). Confidentiality and the dangerous patient Implications of Tarasoff for Psychiatrists and lawyers. Emory Law Journal, Vol. 31265. New York v. Quarles, 476 U. S. 649 (1984). Parks, A. (2008). Unless the Court of Appeals decision is reversed, MD children may not be. Daily Record The Baltimore.Reamer, F. (2003). Social work malpractice and liability. New York capital of South Carolina University Press, 2nd ed. Saltzman, A. and Furman, D. (1999). Law in social work practice. Brooks Cole, 2nd edition. Schmerber v. California, 384 U. S. 757 (1966). Schwartz, B (Decem ber 1971). The bill of rights A documentary history. Chelsea House Publishers with McGraw-Hill Education. Tarasoff v. Regents of University of California, 17 Cal. 3d 425. Ullmann v. United States, 350 U. S. 422 (1956). U. S. v. Doe, 465 U. S. 605. United States v. Hubbell, 530 U. S. 27 (2000).