Privacy and Legal Duties to Warn About Unsafe Behaviors, Conditions, or Hazards: The Example of Child Abuse and Neglect Reporting
© Springer Science+Business Media Dordrecht 2015Ben Mathews and Donald C. Bross (eds.)Mandatory Reporting Laws and the Identification of Severe Child Abuse and NeglectChild MaltreatmentContemporary Issues in Research and Policy410.1007/978-94-017-9685-9_5
5. Privacy and Legal Duties to Warn About Unsafe Behaviors, Conditions, or Hazards: The Example of Child Abuse and Neglect Reporting
Program in Pediatric Law, Policy and Ethics, Kempe Center for the Prevention and Treatment of Child Abuse and Neglect, Aurora, CO, USA
Department of Pediatrics, School of Medicine, University of Colorado Denver, Aurora, CO, USA
KeywordsChild abuse and neglectConfidentiality, harm to childrenMandatory reportingParental privacyAnalysis of tension between need to protect vulnerable children and individual privacy, children’s access to society
Child abuse reporting laws were not created nor do they continue without a context. A thorough examination of the context of child abuse reporting should reduce the opportunity for ad hominem attacks, but cannot eliminate positions that are staked out supporting or opposing mandatory reporting based primarily on personal perception rather than through continuing and careful empirical and policy research. One aspect of the context of mandatory child abuse reporting relates to whether the activity is unique to child welfare narrowly defined or whether the notion of identifying hazards, behaviors, and conditions dangerous to people has broad precedents and responds to rapidly changing modern life. The enactment of any mandatory notification requirement related to the condition or behavior of individuals, including children, necessarily implicates the many trade-offs between privacy and safety in daily life. These are issues addressed in this chapter.
Hazard and risk abound in modern life, coexisting with the many resources and benefits of civilization. In response to these dangers, one question that arises is: when to impose duties on individuals or organizations to recognize, notify or warn about hazards, risk, or immediate danger? Recognition of danger on behalf of one’s fellow human beings has been considered a positive value and at times a duty across many centuries.1 On the other hand, as technological capabilities have grown, anxieties have increased about the standing of individuals within such complexity. More particularly, there are continuing concerns that the sphere of privacy for individuals is becoming more and more diminished and threatened. Given the intimacy of early human life, the value of personal privacy, as will be seen below, can also be seen as a value largely recognized for ordinary people only in limited settings until the past few centuries. Modern complexity created by population size, science, and intricate social organization can obscure how danger, privacy, and well-being coexist. The question posed in its broadest terms is: under what conditions and through what means are individuals expected, empowered, required or restricted from informing others of a perceived threat? The intrinsic and often overlooked embedded question is: how can society assure that information essential for individual and public functioning and benefit is made available when necessary? Coexisting with this question is: what are the limits of not only guarantees of safety but guarantees of privacy, either by individuals or corporate entities?
The reporting of suspected child abuse and neglect is one of many responsibilities that have been codified in a number of countries to assure that dangers to children of sufficient importance will be identified as soon as possible. The intent of such moral or legal duties is to assure that prevention, or at least a response “in time,” will be made more likely. What follows is not a comprehensive analysis of legal duties to warn. This review, however, does have the purpose of providing examples of the range of duties to notify. For some of these examples, the apparent effects and countervailing effects will be described along with their range of possible benefits and detriments. Notwithstanding a necessarily brief review of privacy and accountability trade-offs, however, we can position child maltreatment reporting among the important practices by which human cultures can assure continuing recognition of child endangerment in the twenty-first century. The protection of children in particular is a special challenge because of their vulnerability, the dependence of modern societies on children who grow up successfully as citizens and fill highly demanding roles,2 and the reality that the younger the children, the greater their reliance on the actions of others to keep them safe and well. The “case statement” for mandatory reporting of child abuse and neglect is, in many ways, similar to the argument for other reportable hazards and conditions: reporting of suspected child maltreatment increases the visibility of child endangerment, and maintaining visibility of harms to children increases the likelihood of response and successful prevention for one of the most significant threats to children’s success in life. Guaranteeing children’s safety and well-being assures the well-being of human society.3
The Contending Values of Privacy and Accountability
In order to consider child maltreatment in context, it is necessary to at least briefly note both comparable current conflicts about privacy and accountability and historical antecedents for current practices. Some historical and cultural practices of mandating notifications have been abandoned. For example, kings and other monarchs afraid of revolt and even regicide supported laws punishing failure to notify the crown of possible acts of revolt or treason. The common law of England included the crime of misprision of a felony (failing to report knowledge of a felony to the authorities): Sykes v DPP  AC 528. Such laws were intended to increase the chances of a monarch’s survival by punishing any failure to warn crown officials of an impending treasonous act or plot. It is essential to recognize that there was a “privacy” being protected by such laws. It was the privacy of those in authority to be shielded from observation, questioning, and ultimately accountability for the behaviors being done in the name of the crown. Such laws stripped the rights of the plotters to be protected by concerns about their privacy. Challenges to the monarch through demands for greater transparency of policies and financial transactions were often invitations for suppression.
From the perspective of early civilizations, the survival of society through organized government was seen as being dependent on protecting the monarch. As the age of monarchies was replaced by other forms of government, the twentieth century in particular became an incubator for totalitarian governments, differentiated from earlier authoritarian governments by the completeness and efficiency of newer forms of tyranny. Modern totalitarian governments exploit modern technologies and powerful ideologies. Under the implicit notion of government survival, a totalitarian government can mandate the building of apartments with thin walls or built-in eaves dropping. When a totalitarian government imposes sanctions for individuals who refuse to spy on fellow citizens, the authorities can normalize laws that reach well beyond the “ordinary” identification of direct and immediate threats to the government. Totalitarian governments have been known to require notification to government functionaries of any statements of political or cultural opposition or dissent, no matter how mild or indirect. Privacy is greatly diminished or largely nonexistent with respect to many personal, cultural, and political activities in totalitarian countries. As it was under the culture of absolute monarchy, the “privacy” which exists in such cultures is primarily a “privacy” for governmental power. In such settings, there is little or no “accountability” for the misbehaviors of those in power. On the other hand, there is “accountability” for any individual who is sanctioned for anything done or said about the government that does not please the authorities. The hermetically sealed state can come close to abolishing most personal privacy for citizens, so that it can achieve nearly complete compliance with state policies. This is “accountability” that means citizens are completely accountable to authorities but with no reciprocal obligation owed to the citizens: an asymmetric power relationship ripe for abuse. Under such a culture, privacy as a value, even if not absolutely in practice, can be largely extinguished. Argued here is that “privacy” and “accountability” can be favored to extremes, with all of the accountability imposed on some within society who will have no privacy, while all of the privacy achieved is maintained primarily for the benefit of those in power, for whom there is little or no accountability.4
This broad introduction leads to the need for analysis of parallel changes in the culture, politics, and law of family life, issues which can only be acknowledged here. For example, in Roman law, children’s complete lack of legal rights was embodied in the concept of patria potestas, which gave a father complete dominion over his children and his wife. Such was the extent of this power, and such was the nonchalance with which children were regarded, that in early Roman law the father had the right to expose infants to the elements if he chose to reject their existence5: A Borkowski (1994) Textbook on Roman Law, Blackstone Press, London, 103; J Gardner (1986) Women in Roman Law and Society, Routledge, London, 155. The father also had the right to punish his children, which could include imposing a penalty of death. Further rights included the power to sell one’s children aged under seven. The Roman Law doctrine of parens potestas or “father rules” has been replaced in many societies that borrowed portions of Roman language and culture. While following parens patriae in some ways, doctrine in common law jurisdictions has produced a more nuanced perspective. To the extent that society endorses parental authority over a child, it should also impose duties and constraints on parents as a balancing condition for parental power to be legally sustainable.6
Viewed historically, the concept of “privacy” is prominent in both individual liberties law and criminal law. Privacy is a much more encompassing idea than concepts of confidentiality, nondisclosure, or testimonial privilege. The concept of privacy in the common law tradition has expanded to include personal rights of religious practice, political belief, choice of marriage or sexual partners, control of personal reproduction, and rights against government intrusion even when a crime is being investigated, requiring many due process safeguards for the constitutional validity of criminal investigations to be upheld. While privacy is indeed a very broad issue, the scope of this analysis is limited, touching only on the extent to which information in any form can be held away from other individuals, and under what circumstances, as well as when information must be conveyed. The purpose is to place reporting duties as a narrow area of policy within a very large realm of philosophical, legal, and practical issues.
Sources for the Meaning and Value of Privacy
In 1890, two famous Justices of the US Supreme Court, Samuel Warren and Louis D Brandeis, wrote a law review article on privacy that has been cited frequently since its publication.7
Political, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the new demands of society. Thus, in very early times, the law gave a remedy only for physical interference with life and property, for trespasses vi et armis. Then the “right to life” served only to protect the subject from battery in its various forms; liberty meant freedom from actual restraint; and the right to property secured to the individual his lands and his cattle. Later, there came a recognition of man’s spiritual nature, of his feelings and his intellect. Gradually the scope of these legal rights broadened; and now the right to life has come to mean the right to enjoy life, – the right to be let alone; the right to liberty secures the exercise of extensive civil privileges; and the term “property” has grown to comprise every form of possession – intangible, as well as tangible.
Thus, with the recognition of the legal value of sensations, the protection against actual bodily injury was extended to prohibit mere attempts to do such injury; that is, the putting another in fear of such injury. From the action of battery grew that of assault.* Much later there came a qualified protection of the individual against offensive noises and odors, against dust and smoke, and excessive vibration. The law of nuisance was developed.* So regard for human emotions soon extended the scope of personal immunity beyond the body of the individual. His reputation, the standing among his fellow-men, was considered, and the law of slander and libel arose.* Man’s family relations became a part of the legal conception of his life, and the alienation of a wife’s affections was held remediable.* Occasionally the law halted, as in its refusal to recognize the intrusion by seduction upon the honor of the family. But even here, the demands of society were met. A mean fiction, the action per quod servitium amisit, was resorted to, and by allowing damages for injury to the parents’ feelings, an adequate remedy was ordinarily afforded.* Similar to the expansion of the right to life was the growth of the legal conception of property. From corporeal property arose the incorporeal rights issuing out of it; and then there opened the wide realm of intangible property, in the products and processes of the mind,* as works of literature and art, * goodwill,* trade secrets, and trademarks.* 8
This development of the law was inevitable. The intense intellectual and emotional life, and the heightening of sensations which came with the advance of civilization, made it clear to men that only a part of the pain, pleasure, and profit of life lay in physical things. Thoughts, emotions, and sensations demanded legal recognition, and the beautiful capacity for growth which characterizes the common law enabled the judges to afford the requisite protection, without the interposition of the legislature.
This long quotation presents as well as any summary, the change in the meaning of “privacy” during the most recent centuries. By describing the “intangible” as well as tangible, usually property related, rights, the Justices were announcing, at least in the USA, the legal recognition of an expanding sphere of personal privacy. Justices Warren and Brandeis, who are quoted in the lengthy excerpt found immediately above, refer to the innovative capacity of the Common Law. However, it is perhaps their obvious familiarity with the US Constitution that gave them a “head start” on expanding the concept of personal privacy. Specified protections for the “privacy of beliefs” are found in the First Amendment to the US Constitution9 and are also found in the Fourth Amendment.10 The thinking reflected in the very term “the Right of Privacy” reverberates in eventual, but later, rulings of the US Supreme Court, including Griswold v. Connecticut,11 in which the seven member majority endorsed the concept of a “penumbra of privacy” as being a guarantee implicit in the US Constitution, as well as a considerable number of subsequent decisions on behaviors related to sexual choices.
Technology has liberated human beings from being limited to a few, relatively slow, and scarce modes of communications to seemingly ever-expanding ways to communicate. These vast developments challenge us to ask whether privacy related to “new technology” might be culturally distinct.12 How will we understand any value for the “privacy” of a person’s face, lifestyle, associates, or “financial records/transactions”? In this arena, privacy can be priced to some extent.13 Rather than any estimate of monetary cost, it is the very example of “paying for privacy” during online communications that is important for the discussion here, because it illustrates how context, and the role of the person seeking privacy, influences assumptions of how much privacy can be maintained as a practical matter against the counterbalance of other rights and interests, economic and personal.
As a next example, and as a prefatory transition to the theme of accountability, “privacy” analyzed from the perspective of news media advocates presents the issue as a question of finding justifications for releasing information to the public due to the specific characteristics of the information or the nature of the source of the information.14 From this perspective, privacy is a secondary and frustrating consideration, as the media is constrained from carrying out its mission of accountability through exposure of facts, some of them arguably “private” but nevertheless newsworthy for reasons such as accountability and media profit. This leads media advocates to a search for the circumstances under which the release of information to the public can and cannot be justified.15
The legal right of privacy has been defined as the right to be let alone, the right of a person “to withhold himself and his property from public scrutiny if he so chooses.” Federal Trade Commission v. American Tobacco Co. 262 U.S. 276 (1923) However, unlike the First Amendment right to free speech, privacy (in the media context) is not a right explicitly guaranteed by the Constitution. Instead, privacy law has developed over the last 100 years.16
While “certain intimate details about people, even though true, may be “off limits” to the press and public,” such as educational, health, or private sexual activities, the names of minors can be published “in newsworthy stories as long as the information is “lawfully obtained” and “truthfully” reported.”17 In other words, the press, being anxious to “serve the public” as well as make money, has a motivation to “push the envelope” in choosing to publish what others might consider private information. In the same light, US media companies must recognize that the very fact that the likeness or details about a child’s life are published can cause a court to find that an “invasion of privacy” has occurred.18 The special domain of family life and children’s privacy occurs within the larger domain of privacy and confidentiality, as reviewed in the following section.
Privacy Specific to Children and Families
Beginning in the early twentieth century, US Supreme Court decisions related to the US Constitution have been supportive of parental authority, and hence “privacy,” to make major decisions about their children’s education and religion, essentially blocking unjustified state intervention in family life even if parental decisions do not conform to majority opinion.19 However, the first decision to the effect that parental authority or privacy has some limits occurred in 1944. Prince v. Massachusetts involved a state law regulating child labor that the parents in question opposed on First Amendment grounds of the freedom to exercise their religion. The child in question was under 12 years of age and was working “voluntarily” selling religious tracts for “a guardian” in the evening. The Court upheld the Massachusetts child labor restriction despite the parents’ religious beliefs. From the mid-twentieth century forward, the meaning of personal privacy and privacy within the setting of the family was expanded through decisions addressing contraception,20 abortion,21 homosexual behavior,22 involuntary treatment for mental illness,23 possession of obscenity,24 and municipal ordinances defining nuclear families as not including “extended families” for the purposes of zoning for housing.25 Despite a century of expansion of individual privacy rights, the position of children often continues the implicit assumption of the very earliest cases that stand for the “privacy of parents” when they make decisions for their children and imply a “home as castle” analogy with parents as the controlling individuals on behalf of “family privacy.” Simultaneously, however, and notwithstanding many decisions expanding privacy protections of many types, US Supreme Court decisions subsequent to Prince v. Massachusetts have also made clear that parental authority to refuse to take certain measures for their children, for example, to seek and approve medical care, cannot always be legally justified under a privacy umbrella, even for religious reasons.26
While decisions of the US Supreme Court receive the widest attention because they can affect the entire USA, the 50 state courts have always been more likely to be presented with questions of family privacy, and questions of accountability for what happens within families. In the earliest years of American common law, “accountability” usually had a focus of preventing or punishing illegitimacy. Determining who was responsible for supporting a child meant a focus on preventing out of wedlock births, leading to paternity cases, and also stigmatization of orphans and children born out of wedlock generally. Early twentieth-century divorce law in the USA often focused on child support. With respect to privacy, most state court decisions deferred to parental authority to make decisions for their children. With the early twentieth-century advent of the “tender years” and ensuing “best interests of the child” standards for determining child custody, parental conflicts were for many years expressed primarily in terms of disagreements about custody and child support. However, from the 1980s on, disagreements about privacy and accountability arose with some frequency and most strongly when allegations of various forms of child abuse or neglect were raised by one parent, the other, or both. Yet, during all of the years leading up to the publication of the Battered-Child Syndrome in 1962, it is remarkable that decisions related to reporting suspected child maltreatment by individuals inside or outside of families do not appear in the appellate case law of the USA. One might reason that since parents held power to decide for their children what confidential information should be revealed, including maltreatment by someone within the family, a report by a physician about possible abuse to authorities would interfere with the parent’s fundamental rights. Dean Monrad Paulsen refuted this position in 196727 just after all 50 American states sequentially and individually passed child abuse reporting laws. He reasoned that a person, including a parent, who held power over another had no authority to exercise such power in a way that kept in harm’s way the person (child) for whom the power was exercised.
Children’s Privacy Rights
State statutes requiring reports of suspected child abuse are not the only example of limiting parental authority to govern a child’s exercise of privacy rights. Under the “police powers” reserved to them by the Constitution,28 American states have individually decided for what purposes a person under 18 can give consent to therapeutic or preventive health care without consent by or notice to parents,29 and the issues of children’s competence and right to consent on their own have been addressed by UK court decisions.30 These laws and decisions have addressed consent by persons under 18 years of age to diagnosis and treatment related to substance abuse, sexually transmitted infections, contraception, mental health care, the right of a minor parent to consent to the care of her or his own child, and consent by emancipated minors.31 In most other areas, the states defer to parents. Thus, protecting the privacy of children in these narrow situations occurs at the cost of parents being entitled to know everything about their children’s medical care.
Parents can deliberately legally waive their child’s right to confidentiality in a number of settings. Parents can also “waive consent” without meaning to. One example would be talking about their children’s medical issues or school performance outside of a professional relationship, as in discussing their child’s situation with a neighbor or a member of the media or talking about their child’s court proceedings inside or outside of court.32 Without a parent present, a journalist can argue that some children are old enough to consent to an interview even though the law provides no explicit standard. Thus, journalists in training can be instructed to obtain consent from minors when they are interviewed, while recognizing that if a child is as young as elementary school age, consent to newspaper interviews and other activities is likely to be treated like consent to contracts or many adult level activities, i.e., not legally recognized.
Parents should also be asked by police specifically to consent for a child to speak with police during an investigation, depending on the nature of the investigation. With respect to juvenile and family courts, the standard practice can be either to presume in favor of closed hearings or presume in favor of open hearings. Depending on the local presumption, motions can be made to close or open hearings by any person with standing to make the motion. The National Association of Counsel for Children has established a position that balances the many different interests served by either maintaining confidentiality or open proceedings in either child protection or delinquency proceedings, recognizing that the equities involved are often different depending on the nature of the litigation.33
With respect to many kinds of decisions about children’s lives or their right to consent, the states have not acted uniformly to determine their privacy and confidentiality, in effect often defaulting to common law precedents. In some of these domains, Congress has filled the legislative vacuum. Federal laws provide for confidentiality of children’s school records, allowing their use almost exclusively for educational purposes, while also creating a few exceptions, including for state laws that existed before the Federal law such as child abuse reporting (Buckley Amendments). The Federal Health Insurance Portability and Privacy ACT (HIPPA) now governs the exchange of protected health information (PHI)34 including the PHI of children. For further information, see the Summary of the HIPAA Privacy Rule: What Information is Protected – Developed by the Office for Civil Rights at the US Department of Health and Human Services (2003). This site provides a summary of the HIPAA Privacy Rule.35
Modern communications technology, particularly through the internet, has resulted in crimes that exploit new technology to target children. The Children’s Online Privacy Protection Act (15 U.S.C. §§ 6501-6506) allows parents to control what information is collected online about their children (younger than 13 years old). Operators of websites that either target children or knowingly collect personal information from children must post privacy policies, obtain parental consent before collecting information from children, allow parents to determine how such information is used, and provide the option to not participate or to block some information.
US Federal law also regulates research with minors and extends the protections for minors beyond HIPPA to include specific requirements for both the nature of human subject research permitted and the process by which human subject research on children can be conducted.36
To this point, many illustrations have shown that privacy and confidentiality are cherished human values, widely recognized and supported and, in many instances, legally enforced. Numerous requirements for consent prior to release of private or confidential information demonstrate the extent to which privacy is valued and protected. At the same time, however, there are many, many exceptions to the values, rules, and laws that safeguard personal privacy. The following section outlines reasons for imposing limits on confidentiality and privacy.
Information and Accountability
Confidentiality is widely recognized as an important value, is widely supported, and is reasonably well understood. The risks of confidentiality, however, are often overlooked. Why create duties requiring that information be shared? Absent information, neither private nor public business, can continue. Beyond this obvious fact, without access to information, some situations are likely, if uninterrupted, to cause a variety of personal and property injuries. Situations in which lack of information can lead to disaster are not limited to wars; weather, epidemics, and crimes can lead to immediate death or avoidable injury to individuals who are foreseeable victims. More broadly, if with less urgency, economies can fall, public and private corruption can harm millions, and gradual exposure to hazards or behaviors often create irreversible, yet avoidable, injuries, because privacy allows hazard or injury to advance without interruption. Without information about the harmful behavior of individuals or groups, or information about the results of such behavior, accountability is not possible. Not only is information necessary to hold those accountable after harm has been caused, but prevention of harm sometimes may only occur when notifications or warnings are communicated in a timely way.
Reporters and editors insist that they should not be compelled to reveal their “sources.” Their claim is based on a principle embedded in the First Amendment to the Constitution that in free societies a free media, “the press,” is essential to maintain freedom. Explicitly and implicitly this is an endorsement of the value of accountability needing to outweigh privacy under certain circumstances. The press position is that, in general, not so much information should be kept secret from public disclosure. “The media” extends the argument to the effect that, in general, less information should be protected from public disclosure so that society knows when public and private business is being conducted well and that such revelations do not endanger, but advance, the public interest. This position, offered with legal, moral, practical, monetary, political, constitutional, and cultural supports, introduces the overall question of how to assure responsibility for the exercise of power in the current world.
The position taken by the “free press” across the world, a position that favors the release of more information and discourages many forms of privacy, finds support as soon as one conducts even minimal research seeking examples of laws that require release or reporting of information that some might prefer not to have discovered. Laws that require sharing of information go to the heart of modern economies and nation states; examples include taxation; regulation; economic management of national economies, e.g., through economic surveys; and licensing of businesses and individuals. All of these activities require individuals or organizations of individuals to make available information that they might prefer would remain private. All of these requirements that reduce privacy are performed, at least arguably, for necessary government and societal functioning.
One example, “The Civil War Income Tax of 1862,” the first income tax in the US history, represented an early high point for the publicity of tax information. Pursuant to this statute, tax assessment information was posted on “courthoues doors and in newspapers,”37 to assure “accountability,” i.e., to assure compliance with the tax law.38 Beginning in 1976, the US Congress created confidentiality for tax records but did so while also enacting many exceptions.39 “The specific disclosure standards vary, but Congress generally crafts a given statutory test based on its sense of the necessary benefits and burdens of disclosure in a specific context.”40