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Legal Update 2006

HIPAA FAQ
http://answers.hhs.gov/cgi-bin/hhs.cfg/php/enduser/std_alp.php

The government has collected a number of questions and provides answers regarding some of the intricacies of applying HIPAA in forensic and clinical situations. You can access the FAQ by going to the above website and looking under "Answers" in the drop down category labeled "Privacy of Health Information/HIPAA."

National Child Welfare Resource Center on Legal and Judicial Issues
http://www.abanet.org/child/rclji/online.html

The Resource Center provides training, technical assistance and consultation to agencies and courts on all legal and judicial aspects of the child welfare system, including court improvement, agency and court collaboration, court process, reasonable efforts requirements, legal representation of children and their families, guardianship, confidentiality and other emerging child welfare issues.

Daubert Tracker Brief Bank on Expert Witness Testimony
http://www.dauberttracker.com/product/BriefBank.cfm

The Daubert Tracker offers a collection of over 10,000 briefs and other supporting documents from both appellate and trial courts relating to "gatekeeping" challenges to expert witness testimony. The bank is updated daily. The documents are all in searchable PDF format and date back to 1993. The cost per document is $15.00 for non-subscribers and $7.50 for subscribers.

American Academy of Neurology releases new guidelines for expert testimony
January 10, 2006

The American Academy of Neurology (AAN) has updated its guidelines regarding expert witness testimony by neurologists. The guidelines titled "Qualifications and Guidelines for the Physician Expert Witness" seek to bar unqualified witnesses from the courtroom. Under the new guidelines experts must prove they possess a number of qualifications, including an active clinical practice; expertise in the area in which they're testifying, either through practice, research or published articles; and teaching experience in three of the last five years. They must also show how much of their time is devoted to practicing medicine versus acting as an expert witness for lawyers. Violations of the guidelines could lead to sanctions ranging from a letter of concern to expulsion from the academy.

Daubert has role in bail review in sex crime cases
January 13, 2006
U.S. District Court, Maryland
U.S. v. Thomas
http://www.mdd.uscourts.gov/Opinions152/Opinions/thomas011306.pdf

Judge Susan K. Gauvey has penned an opinion in a pretrial release matter that sets a standard for evaluating testimony on whether an accused sex offender is likely to re-offend. The case was decided nearly three years ago, in 2003. At a bail hearing, the defense wanted an alleged child sex offender released before trial on strict conditions; however, the government opposed any release. Judge Gauvey evaluated the methodology and reasoning of the opposing experts using the criteria set forth in the U.S. Supreme Court's 1993 decision in Daubert v. Merrell Dow Pharmaceuticals. Gauvey ultimately decided that the testimony of the defense expert that the defendant was unlikely to re-offend while out on bail was more reliable than the testimony of the prosecution's expert that there were no release conditions that could ensure the safety of the community.

The case involved alleged child sex offender Gordon Elliott Thomas III. Thomas was arrested after government agents found 16,000 images of child pornography in his home, along with a video in which Thomas exposed the genitals of a sleeping child, the 9-year-old daughter of a friend. Thomas was charged with sexual exploitation of a child and possession of child pornography. At Thomas' initial appearance in federal court in April 2003, Gauvey heard lengthy testimony from one expert from each side on the probability that Thomas would commit another offense while awaiting trial. She ultimately approved Thomas' release deeming the defense expert's opinion was deemed more reliable because he performed an actuarial analysis of his probability of re-offending by comparing Thomas to other offenders with similar characteristics. The opinion of the government's expert, on the other hand, was deemed unreliable, as the expert did not show that his risk assessment methods had been tested or subjected to peer review.

Judge Gauvey wrote, "The Bail Reform Act requires a reasonable assurance, not a guarantee, of safety. Moreover, the probability and consequences of the defendant's prospective acts must be balanced against the proposed immediate restraint on the defendant's liberty, as he is presumptively innocent."

GAL/Minor's counsel does not have immunity for actions that cause child harm
January 18, 2006
Maryland Court of Appeals
Fox v. Wills
http://www.unitedforjustice.com/Mdcourtappeals.htm

In a precedent setting opinion, the Maryland Court of Appeals ruled that counsel appointed on behalf of a minor is not an arm of the court.  He or she has a duty to the child and does not have immunity from tort liability for actions that cause harm to the child.

The attorney, Vincent Wills, was appointed by the court to represent a young girl, K., as a guardian ad litem (GAL) during her parents' divorce. Following judgment in the divorce case, Elizabeth Ritter, the child's mother, filed a suit on her daughter's behalf charging Wills with legal malpractice. It was alleged that Wills abdicated his responsibilities as counsel for the child, that he did not act in accordance with K.'s best interests, and that he was in fact an advocate for the child's father who was suspected of sexually abusing Katherine.

The complaint further alleged that Wills ignored the trial court's orders in that he failed to ensure that the child's father was supervised during visitation, that he failed to ensure that Katherine was placed in a car seat when transported during visitations, that he failed to address the issue of the father's inappropriate touching of Katherine, and that he failed to address the numerous reports of the father's inappropriate exhibitions of anger in front of Katherine. The complaint also alleged that Wills deliberately prevented evidence of child sexual abuse from coming before the court by suppressing and distorting the report of a psychological expert appointed by the court to evaluate the claims of abuse. The report had advised against unsupervised visitation between the child and her father.

Wills filed a motion to dismiss the complaint, arguing that, because of his position as counsel for the child under Maryland Family Law Article § 1-202, he was functioning on behalf of and for the benefit of the court and was thus entitled to "absolute quasi-judicial immunity." Alternatively, Wills argued that, even if he were not entitled to "absolute quasi-judicial immunity," he was entitled to "qualified immunity," and that the allegations of the complaint were insufficient to show the malice needed to overcome qualified immunity. The Circuit Court granted the motion to dismiss, stating "that there is clearly privilege here or immunity, whether it is qualified or quasi-judicial." The plaintiff appealed, and the Court of Special Appeals also affirmed. The Maryland Supreme Court reversed holding that an attorney appointed to represent a child in a divorce case is "is not by statute or rule rendered any more 'an arm of the court' than other Maryland attorneys."

American citizens can be prosecuted for soliciting sex with children in other countries
January 25, 2006
U.S. Court of Appeals, 9th Circuit

The 9th U.S. Circuit Court of Appeals ruled that a 2003 law prohibiting U.S. citizens from paying minors for sex while overseas is constitutional. The majority upheld the 2003 law known as PROTECT (Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today) by applying the Constitution's commerce clause to international trade.

The case originated when Michael Clark, an elderly U.S. citizen who lived in Cambodia was arrested by Cambodian police for soliciting sex from young boys. The Cambodian authorities turned Clark over to U.S. agents. Prosecutors said Clark may have had sex with as many as 50 children in Cambodia , paying them $2 each. Clark appealed his conviction, arguing that U.S. law enforcement's reach shouldn't extend overseas. The federal court disagreed, holding that Congress' constitutional authority to regulate commerce with foreign countries allows for the prosecution of Clark and other Americans on underage sex tours abroad because they pay for sex. The court held that sex with a minor "might be immoral and criminal, but it is also commercial" -- and therefore subject to regulation. His case was the first successful prosecution under the PROTECT law.

Administration for Children's Services supervisor arrested in rape of teen
January 27, 2006
New York

Travis Davis, 41, an Administration for Children's Services supervisor, was arrested after a 15-year-old female relative accused him of repeatedly raping her for more than a year. The allegation was quickly followed by an accusation from another female relative, in her early 20s, who told detectives Davis also sexually assaulted her when she was a teenager. The arrest was the latest setback for a city agency that has come under increasing criticism after the deaths in recent months of four children whose families had been investigated by ACS.

University liable to student for unsupported report of possible child abuse based on essay
January 27, 2006
Canadian Supreme Court

The Canadian Supreme Court sided with a university student who says was harmed by the University's actions based on false suspicions of child molestation. The student was taking courses toward her goal of being admitted to the School of Social Work and becoming a social worker. As a result of a missing footnote in a term paper, a professor speculated that the case study attached as an appendix might be a personal confession to having sexually abused children. In fact the case study had been taken from a textbook listed in the bibliography attached to the term paper. The professor also suspected the term paper itself had been plagiarized. The professor wrote a letter to the student raising the issue of plagiarism, but did not mention her concerns about suspected child abuse or request an explanation regarding the appendix. The professor later took her concerns to the Director of the School of Social Work , who then sent a "suspected ill-treatment" report to the Child Protection Services (CPS). The concern that the student might be a child molester was also discussed among a number of social workers in several communities.

More than two years after the initial report, a CPS staff worker sought a meeting with the student where, for the first time, the student learned of the long-standing report. The student delivered the relevant textbook to CPS the next day. It was immediately obvious to CPS that the appendix had been copied from the textbook listed in the bibliography and was not in any way autobiographical. The student then sued the University complaining that their employees' actions "combined to put in motion a series of events that would forever shape the course of [her] future by affecting her reputation in the community, her ability to complete her education and by reducing her income-earning capacity." A jury found the University¹s treatment of the appellant to be negligent and further found that as a result of this negligence her chosen career prospects had been destroyed. The jury awarded the student $839,400 in damages.

The case was appealed and the Court of Appeal set aside the jury award, concluding that the action was barred by s.38(6) of the Child Welfare Act, which provides immunity to child abuse reporters "unless the making of the report is done maliciously or without reasonable cause." The student appealed to the Supreme Court. The Canadian Supreme Court sided with the student and restored the judgment against the University.

 

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