Abstract
Mandatory reporting of child abuse and neglect now occurs during a period of worldwide debate over the degree to which privacy is being eroded. Privacy and accountability are both important societal values. Proper analysis of privacy protections recognizes that the value of privacy normally means restricting the availability of information, which can deny disclosure of information necessary to hold individuals and institutions responsible for behaving in ways that are harmful, unjust, unethical, or even illegal. Complete privacy would create a world in which it would be very difficult to hold individuals or corporate bodies accountable for injurious behavior of every kind, no matter how devastating the harm that results.
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Notes
- 1.
Raising an alarm or raising a “Hue and cry.” Soukhanov, A. H., ed. (1992), American Heritage Dictionary of the English Language, Boston, MA: Houghton Mifflin Company, p. 879; Select Documents of English Constitutional History. Adams, G.B., Stephens, H.M. (eds.). When a fire, flood, or dramatic change in the environs of one’s home or community was recognized, an alarm would be sounded. When an individual was thought to have committed a crime, villagers in England would be called to pursue the offender through the hue and cry.
- 2.
The importance of successful child rearing can be disputed, as perhaps being relatively insignificant to a nation’s success or perhaps argued to be impossible except in fully modern societies. However, there are countering arguments that “investment” in children makes all the difference in terms of which societies succeed better than others. Bross, D.C. (1991). The rights of children and national development: Five models. Child Abuse & Neglect 15(Sup.I): 89–97.
- 3.
Bross and Mathews, 2012.
- 4.
One illustration of the present “large-scale conflict” over values of privacy versus disclosure is the twenty-first century debate about the extent to which spy agencies should or must be able to access private communications to keep a country’s citizens free from terrorism. On one side are individuals who fear that concerns about terrorism are leading to excessive governmental power to track individual lives. On the other are individuals who see modern communications technology as a Trojan horse for enemies who would intrude into most of a nation’s affairs, public and private, seeking to rob, e.g., trade secrets, or sabotage (e.g., long-distance electrical systems). On one hand, can the secret services of a country be “accountable” for the nation’s safety if too many limits are placed on what data is sought? On the other hand, is privacy again being eroded or lost in the name of “protection”? And isn’t “accountability” needed not only to make sure sufficient intelligence information is gathered for national safety but also to assure that the same agencies do not exceed spying authority?
- 5.
Borkowski, A. (1994) Textbook on Roman Law, Blackstone Press, London, 103; Gardner, J. (1986) Women in Roman Law and Society, Routledge, London, 155.
- 6.
Lehr v. Robertson (1983) 463 U.S. 248, 262.
- 7.
Warren, S., Brandeis, L.D. (1890) The right to privacy. Harvard Law Review 4(December 15, 1990: 193.
- 8.
*Citations in the original text are omitted for the sake of brevity.
- 9.
Article I. Freedom of Speech, Press, Religion, and Petition. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
- 10.
Article IV. Right of search and seizure regulated. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
- 11.
The US Supreme Court overturned the conviction of a Connecticut woman who used contraceptives in violation of a Connecticut state law prohibiting such use. (1965). 381 U.S. 479.
- 12.
Savage, S. and Waldman, D. M., The Value of Online Privacy (October 16, 2013). Available at SSRN: http://ssrn.com/abstract=2341311 or http://dx.doi.org/10.2139/ssrn.2341311
- 13.
Economists Scott J. Savage and Professor Donald M. Waldman and their team: “(S)urveyed 1,726 people in seven cities nationwide and found a “representative consumer” was willing to pay $2.28 to conceal browser history, $4.05 to conceal contact lists, $1.19 to conceal personal locations, $1.75 to conceal the phone’s ID number, and $3.58 to conceal the contents of text messages location, $1.75 to conceal their phone’s identification number, and $3.58 to conceal the contents of their text messages.” The researchers believe theirs is the first economic study to gauge the monetary value smartphone users place on privacy. That value is measured in the willingness to consumers to pay for five different kinds of digital anonymity.
- 14.
In general, see Reporters’ Committee for Freedom of the Press. (2011). The First Amendment Handbook. 7th edition. http://www.rcfp.org/rcfp/orders/docs/FAHB.pdf.
- 15.
Student Press Center Legal Brief, Invasion of Privacy Law. ©2011 Student Press Law Center.
- 16.
Id.
- 17.
Id. citing the unanimous 1979 decision, Smith v. Daily Mail. (1979). 443 U.S. 97. As another example, note that through legislative enactments, privacy rights have been created for citizens of the UK. See the website of The National Council for Civil Liberties: http://www.yourrights.org.uk/yourrights/privacy/index.html
- 18.
Foretich v. Lifetime Cable. (D.D.C. 1991). 777F. Supp. 47
- 19.
Meyer v Nebraska. (1923). 262 US 390. The US Supreme Court ruled that parents could teach their parents German, even during a time of war against Germany, despite a Nebraska law making the teaching of German illegal; Pierce v. Society of Sisters (1925) has won on appeal to the US Supreme Court by parents who wished to satisfy the Oregon law requiring that children be educated, by having their children educated in private parochial schools.
- 20.
Griswold v. Connecticut (1965). 381 U.S. 479.
- 21.
Roe v. Wade (1973). 410 U.S. 113.
- 22.
Lawrence v. Texas (2003) 539 U.S. 558.
- 23.
O’Connor v. Donaldson (1975). 422 U.S. 563; Addington v. Texas (1979) 441 U.S. 418.
- 24.
Stanley v. Georgia. 1969). 394 U.S. 557.
- 25.
Moore v. City of East Cleveland (1977) 431 U.S. 494.
- 26.
Jehovah’s Witnesses, St., Washington v. King Cty. Hosp. (1968). 390 U.S. 598.
- 27.
Paulsen, The Legal Framework for Child Protection, Colum. L. Rev. 66:679, 711 (1966).
- 28.
Sligh v. Kirkwood (1915) 237 U.S. 52. See also: Santiago Legarr, The historical background of the police power. J. of Constitutional Law 746–794.
- 29.
Holder, A.R. (1989). Children and health care Philosophy and Medicine. 33: 161–172.
- 30.
Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112; R (Axon) v Secretary of State for Health [2006] EWHC 37 (Admin). See also: Taylor, R. (2007) Reversing the retreat from Gillick? R (Axon) v Secretary of State for Health. Child and Family Law Quarterly, 19(1): 81–97.
- 31.
See, for example, Colorado Revised Statutes §§19-3-101 et seq.
- 32.
As seen in the example of the following case, a family court from a common law jurisdiction can impose very strict rules of confidentiality on anyone who becomes privy to the information in the case. A county council, a mother, a father, and XYZ [2005] EWHC 31 (Fam), Case No: WR03C00142, http://www.familylawweek.co.uk/site.aspx?i=ed85
- 33.
National Association of Counsel for Children. Policy Statement. Confidentiality of Juvenile Court Proceedings and Records. Adopted by NACC Board of Directors April 25, 1998. http://c.ymcdn.com/sites/www.naccchildlaw.org/resource/resmgr/policy/policy_statement_-_confident.pdf?hhSearchTerms=%22court+and+confidentiality%22
- 34.
“Under the HIPAA Privacy Rule, protected health information (PHI) refers to individually identifiable health information. Individually identifiable health information is that which can be linked to a particular person. Specifically, this information can relate to:
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The individual’s past, present or future physical or mental health or condition,
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The provision of health care to the individual, or,
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The past, present, or future payment for the provision of health care to the individual.
Common identifiers of health information include names, social security numbers, addresses, and birth dates.
The HIPAA Security Rule applies to individual identifiable health information in electronic form or electronic protected health information (ePHI). It is intended to protect the confidentiality, integrity, and availability of ePHI when it is stored, maintained, or transmitted.” See: What is “protected health information” (PHI) and “electronic protected health information” (ePHI) under HIPAA? http://www.hrsa.gov/healthit/toolbox/HealthITAdoptiontoolbox/PrivacyandSecurity/underhipaa.html
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- 35.
- 36.
45 Code of Federal Regulations §46 et al. See especially Subpart D. See also: Sieber, J. E.; Stanley, B. (1988) Ethical and professional dimensions of socially sensitive research. American Psychologist, 43(1)49–55. doi: 10.1037/0003-066X.43.1.49
- 37.
Swartz, P. (2008) The future of tax privacy. National Tax Journal. 61(4):883–900, 884.
- 38.
Id.
- 39.
Id at 883.
- 40.
Id. 883–4.
- 41.
One of the few studies published on how many cases of maltreatment confirmed by a government case worker will be filed as a criminal charge yielded the result that only 4 % of founded cases result in criminal prosecution.
- 42.
A rare example of prosecution of an HIV-positive individual occurred in the state of Colorado. The prosecution involved a prostitute who continued in the sex trade while HIV positive, and who continued to be able unable or re-word?? was refusing to practice safe sex despite counseling.
- 43.
- 44.
Hardin, M. (1988). Legal barriers in child abuse investigations: State powers and individual rights. 63 Wash. L Rev. 493 et seq.
- 45.
- 46.
Bross, D.C., DeHerrera, N. (2005) Refusal of therapy for children: Factors affecting judicial decisions to override parental decisions. In: Amanda George Donnelly (Ed.) State of the Art Advocacy for Children, Youth, and Families. Denver: National Association of Counsel for Children, 147–158; Bross, D.C. (1982) Medical care neglect, Child Abuse & Neglect 5(4):375–382.
- 47.
Tarasoff v. Regents of the University of California. (Cal. 1976).17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14.
- 48.
Jacobson v. Massachusetts. (1905) 197 U.S. 11. See also: Parmet, W.E, Goodman, R.A. and Farber, A. (2005) Perspective: Individual rights versus the public’s health – 100 Years after Jacobson v. Massachusetts. N. E. J. M. 652–654.
- 49.
Melton, G.B., Petrila, J., Poythress, N.G. et al. (2007) Constitutional, common-law, and ethical contours of the evaluation process: the mental health professional as double agent. Psychological Evaluations for the Courts. 3rd Ed. New York and London: The Guilford Press, pp. 83–84.
- 50.
See end note xx supra.
- 51.
See end note xix supra.
- 52.
Bross, D.C. (1988) Confidentiality, Due Process and the Business of Central Registries: Legal and Policy Considerations. (Monograph) Williamsburg, Va: National Center for State Courts.
- 53.
Id., 34.
- 54.
Id., 49.
- 55.
Civil rights for children can be seen as a statutory right not to be denied protection or entitlements due to their age. For example, under the UK Equality Act of 2010, the following forms of discrimination are prohibited: age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex, sexual orientation, pregnancy or maternity discrimination in the work place, directly or indirectly. Equality Act of 2010. http://www.legislation.gov.uk/ukpga/2010/15/contents.
- 56.
Child Abuse and Neglect Fatalities 2011: Statistics and Interventions. (2013) Child Welfare Information Gateway, Children’s Bureau/ACYF February 2013, at page 4. https://www.childwelfare.gov/can/statistics/stat_fatalities.cfm
- 57.
Goldstein, J., Freud, A., Solnit, A.J. (1973) Beyond the Best Interests of the Child. New York: Free Press.
- 58.
George E. Fryer, Tom Miyoshi. (1990). Kempe Center research combining a one-year Colorado birth cohort that followed all children born in the same year, matching names with children ever confirmed by the Colorado Department of Human Services as maltreated, and a search of the National Death Registry. Unpublished
- 59.
Id. 493, 586.
- 60.
Hardin, M. (1988) Legal barriers in child abuse investigations: State powers and individual rights. 63 Wash. L Rev. 493 et seq.
- 61.
Bross, D.C. (1988). Confidentiality, Due Process and the Business of Central Registries: Legal and Policy Considerations. (Monograph) Williamsburg, VA: National Center for State Courts.
- 62.
Tjaden, P. G., Thoennes, N. (1992) Predictors of legal intervention in child maltreatment cases, Child Abuse & Neglect 16:807–821.
- 63.
Kim Shipman, Heather Taussig. (2009) “Mental health treatment of child abuse and neglect: The promise of evidence-based practice.” Pediatric Clinics of North America. 56(2):417–428.
- 64.
In the UK, the Mental Health Act 1983 provides for: (2) An application for admission for assessment may be made in respect of a patient on the grounds that:
-
(a)
He is suffering from mental disorder of a nature or degree which warrants the detention of the patient in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period.
-
(b)
He ought to be so detained in the interests of his own health or safety or with a view to the protection of other persons. See: http://www.legislation.gov.uk/ukpga/1983/20/contents.
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(a)
- 65.
It is interesting to me that, paradoxically, people are willingly and voluntarily revealing equally vast amounts of information about their personal lives through social media and about their travels and transactions through loyalty cards, credit cards, and EZ passes. Personal comment, Donald Woodhouse, April 2014.
Acknowledgements
The author acknowledges the editing help of Donald Edward Woodhouse, Antioch College, and Edward Richards, School of Law, Louisiana State University, both of the USA, and Dr Andrew Graeme Rowland, Emergency Department, North Manchester General Hospital, UK, who are of course not responsible for errors, omissions, or opinions found herein.
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Bross, D.C. (2015). Privacy and Legal Duties to Warn About Unsafe Behaviors, Conditions, or Hazards: The Example of Child Abuse and Neglect Reporting. In: Mathews, B., Bross, D. (eds) Mandatory Reporting Laws and the Identification of Severe Child Abuse and Neglect. Child Maltreatment, vol 4. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-9685-9_5
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