(Define the 4th, 5th, 6th ans 14th amendment of the united states constitution and cite at least one case as it relates to interview and interrogation. when you cite any case you need to give the details of the case or as much information that you feel is necessary for one to understand what occurred)
Introduction
In Tarasoff v. The Regents of the University of California [S.F. No. 23042, Supreme Court of California, July 1, 1976], a ‘wrongful death’ action was filed against the Regents of the University of California hospital psychotherapists and campus policemen. The victim’s parents testified that the Hospital staff had been informed of the patient’s intention to murder their daughter; hence protecting colleagues from a potentially violent patient.
At time of trial, the defendants' demurrers to the complaint were suspended without leave; and entered judgment in their favor. Upon appeal, the Supreme Court affirmed the judgment in favor of the police officers, yet reversed judgment regarding the therapists and the University Regents.
The court held amendment to the complaint was valid to state a ‘cause of action’ against the therapists; stating they had in fact determined that their daughter's killer posed serious danger, and that peril was articulated as intent by Poddar. The case resulted in a landmark ruling, pursuant to the standards of professional ‘duty to a reasonable standard of care;’ upholding informed consent and nondisclosure of the patient, but nevertheless failed to protect the victim from illicit danger.
The court held that when a therapist ‘determines, or pursuant to the standards of his profession should determine,’ a patient poses danger of violence to another, an obligation stands to exercise reasonable care to protect the potential victim against such danger.
Judicial interpretation also furthered the ruling, citing breach of nondisclosure by patients, where discretionary acts may implicate practitioners in malpractice lawsuits, where immunities may be at stake (Gov. Code, § 820.2). Failure to procure Poddar’s confinement, argued the court, insulated Moore and colleagues from liability; yet did not release them from disclosure where danger was present (Gov. Code, § 856).
Ethical concerns in favor of nondisclosure (§ 5328), were central to the court decision, where judicial opinion outlined the professional parameters to ‘effective treatment,’ ensuring greater safety of society. Policy acts included in the decision included Healing Arts and Institutions § 30, ‘Medical Practitioners and Duty of Therapist to Dangerous Patient's Intended Victim,’ which defines professional standards of conduct regarding disclosure of serious peril to another as an obligation within the scope of therapeutic practitioner’s exercise of ‘duty’ to a reasonable standard of care.
Pertinent to the discussion of ethics in therapeutic communities of practice is the relevance of the United States Constitution 4th, 5th, 6th and 14th amendments in respect to interview and interrogation. Tarasoff v. The Regents of the University of California elucidates the complexity of ‘witness’ within the practitioner role. The multiple layers of ‘duty’ oscillating within daily responsibilities of therapists are many.
Without exception Tarasoff reminds us of the ethical and legal expectations to professional conduct in practitioner-patient informed consent relationships and the discretionary secrets bound up in decisions regarding where ‘reasonable standard of care’ crosses the line from patient to peer, and public. The entrance of the ‘group therapy’ model not surprisingly, eliminates some of the liability to patient misconceptions. It is in the reinvention of the medieval confessional community in North America that we find a unique solution, and a distinct ground for reinterpretation of the ethical dilemmas presented in Tarasoff.
Ethics of Informed Consent
As therapeutic practitioners we are constantly seeking methods of increasing patient trust; working to decrease risk to both patients and the public. Therapeutic misconceptions rooted in the ethical dilemmas sometimes posed by informed consent constitute a substantial liability to therapists attempting to forge the highest caliber relationship in the therapist-patient interaction. Conflict where there should be synergy is common in fulfilling the ‘duty to a standard of reasonable care’ where patients are concerned; and the critical impetus to most medical malpractice lawsuits.
In Tarasoff v. The Regents of the University of California the dangers presented by an individual therapist-patient informed consent interaction culminated in the transformation of State of California laws on disclosure. The case also appears in a number of court proceedings throughout the United States as a landmark ruling referenced in judicial opinion. As evidenced in the case, there are instances where the popular one-on-one therapeutic model employed by psychiatric specialists in the United States is moot in the face of patient recovery.
Informed consent is not absolute, however, and therapeutic misconception and trust issues may stand in the way of truth (Showalter, 2008). The distance between informed consent and therapeutic misconception may not sufficiently resolve a patient’s intent. While therapeutic intervention is nothing short of the revelation of ‘secrets’; those sessions may also include patient’ omission of harmful thoughts up to the point that details to the intent to commission of homicide is sidestepped based on patient perception of the relationship.
The study on the ethics of group therapy focuses on the reemergence of the medieval confessional community in the late-capitalist era as a method of therapeutic treatment and instrument of mitigation against liability to informed consent (Showalter, 2008). While Tarasoff is a radical ending to an otherwise normative practitioner-patient relationship, contiguity in the current moment is not negated.
Counselors often face difficulties in expiation of the conditions of a patient, and details to diagnosis may be too narrow or opaque to capture the ethical complexity of the therapeutic misconception. This also pertains to interactions with patients. For example, psychiatric patients in some cases do not comprehend or retain information about their diagnosis. A range of misconceptions may arise leading to circumstances of misplaced trust to exploitation.
The framework to negligence calculus is constituted of four (4) rule elements: 1) probability that the harm would occur if adequate ‘care’ is not taken; 2) the likelihood that the harm will be serious; 3) a burden of precaution to avoid the harm is evidenced; and 4) the social utility linked to the riskcreating activity. Where there are substitute decision makers, as is the case with seriously incapacitated psychiatric patients, the enforceability of the rule of negligence offers measurement to the standard of protocol to be taken by the practitioner in informed consent relationships, where expert intervention is intended to ‘assist’ or ‘cure’ the patient (Staunton and Chiarella, 2007). Risk management is seen in the empirical management of such cases, where documentary process serves as evidentiary record of patient care. This is a critical factor substantiation of practitioner immunity in malpractice cases – where therapist oversight has been met with complaint as in Tarasoff.
Ethical assumptions to the liability practices by therapist are largely dependent up on national standards of ‘reasonable foreseeability’ within informed consent laws. Patients must be given general information on their diagnosis, proposed intervention. Mutual assent by the patient or third party decision maker to the treatment is the most typical phase where ‘forewarning’ is made material in the therapeutic journey. Most therapists require release from liability; including nondisclosure of patient record (Bullough, 1980).
When patients are determined to not substantially benefit where there is a diagnosis of deterioration, informed consent practices are customarily practiced via the third party consensual relationship, and including conservatorship by family, legal guardian or the state. Universal ethics attributed to informed consent are seen in most common law nations. ‘Duty’ to patients is circumscribed in four rule (4) elements within application of negligence law, and medical malpractice claims require all to be present in order to fulfill complaint (Table 1).
Non-uniformity in informed consent is the subject of study on the threshold of ‘feasibility’ to informed consent relationships in the medical field, Increasingly Informed Consent: Discussing Distinct Aspects of Psychotherapy at Different Points in Time, by Pomerantz (2005). According to the study conducted with licensed therapists, “psychologists are ethically obligated to obtain informed consent to psychotherapy ‘as early’ as is feasible" (Pomerantz, 2005).
Participants to the study reported that confidence in early disclosure of information, such as payment and confidentiality policies, “at the outset,” articulation of more “substantive issues,” of the therapeutic process may only transpire in process. Distinction in the therapeutic model versus the traditional medical model is made in the longitudinal decision making approach described by the psychotherapist participants, with variance in implication seen where process and event models affect informed consent and not vice versa. Comparison of the two models to informed consent clarifies the respective difference to healthcare practice and the point where disclosure meets threshold within the decision making process of therapists in the context of ongoing intervention.
‘Ethics,’ then, are far less reliant upon the temporal rule strictures in statutory law as understood within customary practice of physiological medicine. Distance on the continuum of ethical decision, I would argue, is two- fold: 1) Therapist to malpractice ratio is lower than for medical practitioners; and 2) Patients are less likely to be acknowledged in their ‘reasonableness’ to make such a claim. Still, as Tarasoff reveals, professional immunities do not provide for complete protection. Group therapy, however, removes the therapist even one step further from the obligation to engage informed consent activities.
Constitutional Rules
Observance of constitution law as guiding framework to the investigation of the crime of homicide commissioned in Tarasoff v. The Regents of the University of California confirms use of interview and interrogatories as part of discovery (American Hospital Association, nd.). What was discovered as part of the evidentiary proceedings is the result of due process. Informed consent rules on patient disclosure rules delayed resolution of the case. The 4th, 5th, 6th and 14th amendments of the U.S. Constitution articulate the rules to search and seizure, and to due process (Table 2).
The 14th amendment confirms professional immunities where licensed medical staff is concerned. This summates the fact that much like regulation, constitutional law offers constraint after the incident, and does not serve as preventive force in mandate of disclosure of patient information indicating that the party in care has expressed intent to cause harm on record.
Conclusion
In Tarasoff v. The Regents of the University of California [S.F. No. 23042, Supreme Court of California, July 1, 1976], a ‘wrongful death’ action was filed against the Regents of the University of California hospital psychotherapists and campus policemen for failure to inform the future victim of a patient threat of homicide. The landmark decision is offers foundation to the study of ethics in group therapy settings and interrogatories in law. Most insightful, the topic translates well in correspondence with the legacy of the U.S. criminal law in England’s medieval confessional community, now enforced as late-capitalist era statutory provision in constitutional and customary rule.
References
Bullough, B. ed. (1980). The Law and the expanding nursing role. New York, NY: Appleton-Century-Crofts.
Guidelines to Releasing Patient Information to Law Enforcement, nd.. American Hospital Association.
Pomerantz, A. (2005). Increasingly Informed Consent: Discussing Distinct Aspects of Psychotherapy at Different Points in Time. Ethics & Behavior, 15(4), 351-360. doi:10.1207/s15327019eb1504_6.
Showalter, J.S. (2008). The Law of Healthcare Administration. Health Administration Press, Chicago.
Staunton, P. and Chiarella, M. (2007). Nursing and the Law, 6th Edition. Chatswood: Elsevier Australia Pty. Ltd.
Tarasoff v. The Regents of the University of California [S.F. No. 23042, Supreme Court of California, July 1, 1976].
