Constitutional Law

Cleveland Attorney The Skolnick Law Firm – Criminal Law

The Skolnick Law Firm LLC http://www.skolnicklaw.com/criminaldefense.aspx Criminal Defense The Skolnick Law Firm, LLC represents clients facing misdemeanor and felony charges in state and federal courts throughout Ohio and areas of practice include: Bail and Bond Proceedings – signature bonds, cash bail, and pretrial release Domestic Violence – domestic abuse, domestic violence, and stalking Drugs & Narcotics – drug possession, manufacturing, cultivation, and trafficking Drunk Driving & DUI-DWI – alcohol-related driving offenses & DMV hearings Expungement – sealing records regarding an arrest or criminal conviction Firearms and Gun Offenses – assault weapons, concealed weapons, and gun sales Juvenile Crimes and Juvenile Delinquency – gang activities, drugs, and runaways Mental Health Cases – mental health and emotional issues Pre-Charging Investigation – pre-arrest negotiation with police and prosecutors Probation and Parole – revocation proceedings and post-conviction motions Sex Offenses – sexual assault, domestic assault, rape, and other sex offenses Theft and Property Crimes – burglary, identity theft, and receipt of stolen property Three Strikes Cases – prior convictions and repeat offenders Violent Crimes – robbery, homicide, murder, manslaughter, and terrorist threats White Collar Crimes – bribery, extortion, counterfeiting, and embezzlement The Ohio criminal defense lawyers at The Skolnick Law Firm, LLC have the necessary experience to vigorously defend any criminal charges brought against you and have successfully done so for many clients in your situation. If you would like to discuss your legal options, contact us online or call us at (216) 685-9991 to set up a FREE consultation.

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Pranic Therapy Vi

Pranic Therapy Part VI

All the four forces in the Universe – weak nuclear force, strong nuclear
force, electricity & magnetism -are but different manifestations of
that Unitary power which the Vedists call Prana. Using this Vital Energy
to heal is called Pranic Therapy. This article is a continuation of the
earlier article Pranic Therapy Part V.

Integral Life & the Universal Stream of Consciousness, Prana

Never in the integral view developed in ancient India was life regarded
as restricted to certain cellular activities. Rather, life is a Universal
stream of Consciousness known as Prana in the Upanishads &
Consciousness- Force ( Chit Shakti ) in the Tantras. Each living being
represents a centre around which Prana moves at different levels known
as sheaths ( koshas). At the core of this multistoreyed personality
structure is the locus of the Self, known as the Atman.The Upanishads
state that just as the spokes of a wheel are fixed at the hub, so also
Prana and all psycho-physical structures are fixed in the Self. The
Self ( Atman ) is the Master Controller of Life that Western science
is seeking. The Vijnanamaya Kosha ( Intellectual Sheath) & the
Anandamaya Kosha ( Bliss Sheath ) are the sheaths where the light
of the Self is experienced.

The unattached Self, exercises its power through the Will ( known
as Dhrti), which in Yogic psychology is regarded as the dynamic aspect of
intelligence. With the help of the pure Will, a Yogi is able to keep all his
sense organs, all activities and mind under control, says the Geetha.
Acquisition of this pure will is the result of a Spiritual Awakening. This
Awakening, which takes place only through prolonged & intense spiritual
struggles, opens the divine door in the heart. This gives the yogi access
to all kosas or the five sheaths. He gains the capacity to open each kosa
to the stream of the Cosmic Prana. The stream of universal life flushes
out impurities & diseases from the personality system and brings in new
vigour and strength.

The world is overcome, aye even here,
By such that fix their faith on Unity
The sinless Brahma ( Absolute ) dwells in Unity,
And they in Brahma ( Absolute )! ( The Song Celestial )

The Cause all Disease – “Fault of Awarenes”

Intense striving alone can pave the way for this kind of yogic self-
mastery. But an inner alertness & some degree of general
supervision over all his activites such as eating, sleeping,exercise,
response to stressful situations etc can be attained by anyone.
It is failure of this inner watchfulness, known as Prajnaparadha or
“Fault of Awareness “, caused by ignorance and negligence that
makes a person yield to evil thoughts and deeds that is the root
cause of all diseases. .

Of the triune attributes of Nature – Rajas, Thamas and Satwa
( humanity, bestiality, divinity ), both Rajas ( humanity ) & Thamas
( bestiality ) are pathogenic. Satwa is non-pathogenic meaning
that living in rhythm with Nature can save us from diseases.

Charaka Samhita, an authentic treaitse on Ayurveda states
“The disturbance of the three humours are caused by Prajnapara-
dha, produced by the distortion of the intellect, will & memory ” .
Some of the aetiological factors are carelessness, lack of alertness,
forgetfulness & misuse of will power.The root cause of most of
the psychosomatic or constitutional disorders is Prajnaparadha,
the misuse of our cognitive and conative faculties. It is our
unconscious way of living, not in conformity with natural law, that
is the primary cause of illness.

Health can be restored by changing our way of living to a Self-
directed style. Hyperacidity, rheumatism, irritable bowel
syndrome and similar disorders are the body’s alarm signals
We can bring about integration of the personality if we extend our
Consciousness into the interior parts of the body & bring these
neglected areas closer to the light of the Self. This integration
fortifies our immune system and restores the coordination,
rhythm and balance in the working of the different organs. This
kind of extension of Consciousness can be done in different ways.

Extension of Consciousness by Meditation

The inner awareness which is the result of absorption in Meditation
can be extended into the affected part of the body through concentrative
visualization. If these meditative techniques are practised for some
days, the process of self-renewal & self-defence gets accelerated
and healing takes place automatically.

The Triune Meditation- ( Physical, Verbal & Mental )

Reverence for preceptors,continence, nonviolence – these constitute
Physical Meditation.

Speaking kind words, adherence to Truth, Self-study – these constitute
Verbal Meditation.

Cheerfulness, humility, silence, purity of heart – these constitute Mental
Meditation

Maintaining Yin-Yang balance

Everything in Life has opposites, Yin-Yang. (Yin is expansion and Yang
is contraction ). The most common yin-yang imbalance is stress arousal.
Stress arousal increases the adrenaline & cortisol levels which inhibits
the immune system. Stress is misplaced effort & takes away the energy
required for healing.

Ultradian healing response is the second major yin-yang balance. Every
one and a half to 2 hours , our mind-body goes through a period of
daydream or slowing called the ‘Ultradian healing response’. We are
neglecting our healing cycle if we artificially keep perked up with coffee,
cigarettes, alcoholism or workaholism. Daydreaming, meditation &
quiet time allows us to take advantage of this Ultradian healing cycle.

The foundation of Life – The Superconscient

Modern Psychology & Psychoanalysis deals with the Subconscious &
Unconscious. Aurobindo averred that the Superconscient and not the
Subconscient is the foundation of life. The Fourfold Yoga is the science
of the Superconscious Mind. The mind via meditation opens up to the
Superconscient and healing takes up automatically.

Jung spiritualised Psycho-Analysis and was not an atheist like Freud.
Modern psychology is an infant science, rash, fumbling and crude. In
it the universal habit of the human mind, to highlight a half-truth and
generalise it unduly, runs riot here. Freudian psychoanalysis is half-
knowledge & half-knowledge is dangerous & can be an impediment
in the realisation of Absolute Truth. Neither the Subconscious
(which modern psychology highlights) – nor the Unconscious (which
Psychoanalysis highlights) are the important elements.The Supercon-
scious, and not the subconscious ( or the Unconscious ) is the
foundation of Life. The science of the Superconscient is Yoga
( whose Western equivalent is Free Masonry.) The Superconscient
is our evolutionary future as the subconscient was our evolutionary past.

( To be continued )

Article by G Kumar, Astrologer, writer & programmer of www.eastrovedica.com. Recently he was awarded a Certificate by the Planetary Gemologists Association Global ( www.p-g-a.org ) as a Planetary Gem Advisor. He has 25 years psychic research experience in the esoteric arts. To subscribe to his free informative Ezine, the Z Files mailto:info@eastrovedica.com?subject=SubscribeZF. His Astro blog is up at http://www.zodiacastrology.blogspot.com & his Philosophy blog is http://transcendentalphilosophy.blogspot.com Mobile 091 9388556053

G Kumar
http://www.articlesbase.com/education-articles/pranic-therapy-vi-62418.html

Musca Law

Musca Law provides statewide legal representation for individuals charged with a criminal offense. They service the entire State of Florida. http://www.muscalaw.com/

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Road Map for Control of Terrorism in India

Road Map for control of terrorism in India

The growing menace of terrorism poses a formidable challenge to the civil society bringing civilization on the brink of disaster. It is needless to elucidate that loss of innocent lives in terrorist activities and trauma it has resulted in the society propelled me to write this article with complete focus on solution functionality, which to my understanding can curb terrorism to a great extent.

India being a very large country, with complex problems clouding socio economic fabric, multi pronged, and pluralistic approach will be instrumental in curbing terrorist attacks which are hitting head lines every other day.

The following measures are suggested:-

1. Short term measures:-

1.1          Administrative measures

Luggage check by public transport operators: - It is impossible for police to check luggage round the clock 365 days. Police can only do brisk and discreet checking.   In order to encourage the operators to check the luggage, luggage checking format with the provision of entering passenger’s basic details and signature or thumb impression should be there. This information and possibility of taxi / Auto driver having a better look on the passenger can be ensured.  A terrorist about to commit a crime is likely to exhibit certain distinctive psychological behavior

·         May show tensed up gait.

·         Unusual generosity to driver

·         High concentration

·         May not be able make eye contact continuously if questioned.

In order to sustain above measures transport operators are to be given financial incentives which citizens will be interested to bear for safety. Incentives may be redeemable against filled in format with certain logical limit and may be adjusted with tax payable. 

1.2 Technological solution:-

A high speed scanner on certain stretch  of the road should be able to detect explosives by virtue of its infra-red signature. It is pertinent to mention that such scanner is already available in the world as created by Wugiang Yang of Manchester University.

Infra-red camera, rudder etc. are also the possibility for use which has the technical potential to detect explosives inside the vehicle.

Since billions of dollars are being spent in order to develop a full proof system, India should join in this venture along with the universities in India and abroad. We may also like to involve the Research organizations, interested talents across India. It is possible to create a platform in this connected world where people can share their expertise in co-ordination with the designated governmental agency that can support the sustainability of the research effort and be empowered to procure required gazettes / explosives in a designated place in the select cities. Interested research groups can be connected by Internet/ Video conferencing during a time, which will be convenient to most of the people.

Unfortunately terrorists seem to take the advantage of the connected world more often than the sane people.

1.3           Intelligence Network: -

Involve local people for gathering information regarding whatever is happening in the locality. A huge intelligence gathering across India within reward scheme for providing information can retard terrorist activities. If any terrorist is captured, it is important to understand his mind by psychoanalyst, Social psychologist by soft and empathetic approach rather getting into punitive third degree methodology right from beginning.

It is also important to maintain confidentiality after thorough dialogue with Media since every time details of investigation is known to everybody by national media, terrorist are getting smarter. Uses of wireless network, refraining from usage of mobile by terrorists are pointers to this fact.

1.4  Political Solution

A federal body involving top legal brains of the country, may be constituted for curbing terrorism from legal standpoint, whose recommendation after debate in parliament’s upper house, may be constitutionally enacted as binding to all political parties and states. It must be remembered that counter terrorism measures should be enforced respecting  international human rights obligations and the basic tenets of the Rule of Law, otherwise it will be self defeating.

1. Medium Term

2.1  Audio Visual Campaign:-

An all out audio visual campaign should be launched in order to counter the hate preaching by certain fundamentalist groups. It is important to study religious scriptures line by line in order to counter the misuse by certain misleading religious leader. Removing terrorism from the minds of people is more important than militarily fight terrorism. Broad minded religious leaders from all cross section of society should be requested to preach people for great cause of national harmony. The superior ingredient of religion can be translated into a motivation that will sanctify society”.

2.2  Conference Room Solution

In the event of brewing conflict in the society, bring the leaders of opposing groups to the conference room. Otherwise even a small discord can aggravate to a great turmoil.

2.3  Rationing Negative News Reporting

It is important to ration negative news reporting in the media. Too much of negative news reporting round the clock is changing the social psychology irreversibly.  It is important to highlight that many positive and innovative activities are taking place in society. Otherwise terrorists will bask on the sensionalism created in media.

2.4  National Forum

It is suggested to create a national forum with online participation of talents all across India not for only discussion  but take decisions on issues of great national importance in consonance with Ministers and IAS officers and political leaders of different parties within the constitutional framework. Following Model may be suggested. Let us create a National Channel and involve talented media personalities from NDTV, Times Now, Headlines Today, CNN etc. evolving an enlightened society to curb the menace of terrorism.  Media brains can anchor the program with the focus on solution functionality rather than only capturing opinions or sterile intellectual exercise. Channel should allow detailed discussion involving an audience all across India either through physical presence or by video conferencing, Internet etc.  Decisions should be taken on the channel itself and Ministers and IAS officers should prepare resolution on the spot itself and read out to nation. It may be noted many discussion in NDTV ushered in epoch making initiatives from Government especially in Indo –Pak relationship. Hence suggested model will be instrumental in encouraging  many initiatives from Government for better tomorrow.

2.5  Invoke Liberal views in the society

Let us involve pious souls like Shri Ravi Shankar, Monks of Ramkrishna Mission and other religious institutions. To my understanding, some of the monks of Ramkrishna Mission are intellectual giants not only because of their knowledge of religious scriptures, but because of their amazing liberal views on social and political issues. Nation should be open to such great souls in our troubled times who can provide radically different solution acceptable to all conflicting parties.

1. Long Term Measures

3.1  Educational Campaign across country:-

Through out the world it is the education which is the ultimate solution for all social problems.  Most of the social problems are arising out of people’s ignorance. Hence Government should invest maximum amount in Education- more than any other sector. One can even do the deficit financing in this area, considering whatever the amount that will be spent today, its effect will be offset by the goods and service generated by the more educated people, as a result of the education drive. It requires no explanation that educated and enlightened individuals will definitely promote peace and harmony in the society.

3.2  Socio-Economic Solution

Oppression and wide spread neglect of human rights and denial of  hope of better future for common people are the fertile ground for breeding terrorism.  Social, economic and political disparities in a large scale engender conflicts within the State and beyond.

Policy makers should ensure that a balance is maintained all across India. It is not important to have world class facilities only in select cities, it rather important that most of the people in India should be put on survival economy. Any meaningful endeavor to resolve conflicts and terrorism will have to ensure enjoyment  the full range of Economic, Social and Cultural Rights by the citizens. Political leaders have to rise above narrow interest and  limit the uneven economic development in India as much as possible. It may be argued that all out development in all villages in India will require astronomical amount and India may not have so much of resources. But on the contrary, amount required to curb social unrest and terrorism is not less either. At least let us share resource judiciously for the unfortunate section of the humanity. In that process, all of them may not live in prosperity but they will not starve either. Once we start contributing something for the nation with little honesty and sincerity, a miraculous result will follow- and that my belief.

3.3    Defusing religious extremism:- One major  factor leading to terrorist activities for imposing so called religious or ideological intent needs to be defused by counter campaign which will convince people regarding the rationale of non violent approach against hatred policy of  misguided fanatics. Society’s condemnation  to a climate of religious bigotry, which leads to discrimination, harassment and attacks on all those who are believers of other faiths, has to be very strong, otherwise indifference of the society to such acts will only encourage fundamentalism. Government must encourage, fund and protect NGO who will be focusing on defusing religious extremism.

Dwijadas Ghosal
http://www.articlesbase.com/politics-articles/road-map-for-control-of-terrorism-in-india-693162.html

Law of Attraction

http://www.realcoachingradio.com The Law of Attraction in action not just an intellectual concept http://www.rcrn.info

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Social Work and the Law

NOTE: THE ARTICLE APPEARING BELOW WAS COPIED ON  22 JUNE 2009 BY http://www.cityadministrator.org/?p=397 WITHOUT MY PERMISSION AND WITHOUT CITING THIS AUTHOR. The blog is hosted by GoDaddy and registrant

Registrant Name:Joseph R Smith
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Baltimore City Department of Social Services v Bouknight,

488 U.S. 1301 (1988)

A three month old infant was admitted for treatment in a hospital. It became apparent that the mother, Jackie Bouknight may have maltreated the infant. Consequently, the Department of Social Services (DSS) petitioned the Court to declare the child as a “child in need of assistance” and grant it the power to put the child under 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 have the custody of the child subject to the conditions of supervised parenting and an undertaking of non-infliction of bodily 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 safety and well being of the child filed a case before 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, No. 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 because by doing so, it only proves Bouknight’s “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. Supreme 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 line of decisions of the Court are clear that as between the public need vis-à-vis a single claim of an individual on constitutional privilege, the former is upheld. In this particular case, the safety and interests of the abused child must be upheld over Bouknight’s assertion considering that, in the hierarchy of values, the safety and welfare 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 charge 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 maxim “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 revolution the states ratified the Constitution with the inclusion of the privilege in the bill of rights. The original version of Madison was amended by the House to include “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 witness against himself . . .” (U.S. Constitution, Bill of Rights). The primary purpose of its inclusion in the Bill of Rights is “to protect the innocent and to further the search for truth” [Ullmann v. United States, 350 U.S. 422 (1956)]. However, in subsequent line of decisions, the Court ruled that other privileges stated in the bill of Rights are more in the nature of adjuncts to the determination of truth such 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” [Miranda v. Arizona, 384 U.S. 436, 460 (1966); Schmerber v. California, 384 U.S. 757, 760–765 (1966); California v. Byers, 402 U.S. 424, 448–58 (1971)]. This maintains the integrity of the judicial system and protects the privacy of the individuals from government intrusion [Miranda v. Arizona, 384 U.S. 436, 460 (1966); Schmerber v. California, 384 U.S. 757, 760–765 (1966); California v. Byers, 402 U.S. 424, 448–58 (1971)]. The privilege is a guarantee against compulsion for testimonial evidence which consequently will 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 three (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 court, ‘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 within the privilege (Ashby, J., 2006) and is not limited by the forum where it was elicited, i.e. before the court, administrative proceedings or before the law 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 compulsion to give a statement. The Court explained that this requisite refers to “circumstances 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 Issues and their Impact on Social Work Practice

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 Supreme 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 Rights (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 because 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 location are already known to the Government. In fact, responding to a subpoena have been considered legal and acceptable even if compulsion is present [Fisher v. United States, 425 U.S. 391 (1976)]. Moreover, when an accused is required 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-à-vis ensuring the individual’s constitutional civil liberties, public need prevailed considering that the disclosure of information was non-criminal and not directed 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 public safety exception and therefore in the case of Bouknight, “the public safety exception to the Fifth Amendment was justified because its interest was in protecting children like 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 duty 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 to follow up sharply abused children in foster care or those released under an order of protective 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 few kisses made him believe that they have a special relationship until Tarasoff bragged about her many relationships with other men. Poddar suffered depression until he sought professional help from Dr. Moore, a psychologist of the University Health Service. He confided to the doctor that he intended to secure 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. Moore’s letter and did not recommend any further action on Poddar’s 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 warn their daughter of an impending danger” (Tarasoff v. Regents of University of California, 17 Cal.3d 425). At the lower court, the complaint was dismissed because there was no cause of action. According to the lower court, the defendants only had the duty to the patient 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 liable 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 dangerous patient; b) failure to warn on a dangerous patient; c) abandonment of a dangerous patient; and, d) breach of primary duty 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 liable because of a specific provision 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 with their duty 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 duty of care on their part to warn Tarasoff. Their failure to warn her may reasonably concluded as a proximate cause of her death. The duty 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 physician/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 ethical duty 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 atmosphere 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 threatened 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 are defined by law and by the ethical code of conduct for practitioners in the territorial 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 required 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 Tarasoff case provided a basis to guide a practitioner in his professional dealings relative to the duty 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 victim of a patient of a threatened harm. Subsequent rulings of the court clarified and defined what constituted ‘threat’ as “imminent 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 moral 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 declared 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 affirmative 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 recognized 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 protective disclosure ruling with the practitioners (Kachigian and Felthous, 2004). Analogous cases and protective disclosure statutes in the different 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 patients” (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 patient’s family member” as pronounced by the Court in the case of Ewing v. Goldstein (May and Ohlschlager, 2008). The dubious jurisprudential precedents by the courts in interpreting the protective disclosure statutes or its resort to common law instead of interpreting the statute left 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

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E.Writers
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