Almost 50 years have passed since the Munchausen syndrome (MS) was first identified. 1 Now it is more than two decades since Munchausen Syndrome by Proxy (MSBP) has been identified. MSBP continues to be one of the most bizarre and baffling forms of child abuse to all who encounter it. 2 The victims of MSBP typically are children under six years old who are abused by their mothers and unable to verbalize their story; 3 thus, the dilemma of identifying and protecting these children exists. Obstacles to intervention are numerous. First, health professionals lack awareness that an illness may be intentionally produced. Second, the mother who falsifies her child's illness usually is portrayed as a model parent. Third, securing evidence of a parent who is secretively producing symptoms is most difficult to obtain. Finally, the courts are reluctant to believe this type of abuse is occurring. 4

COVERT VIDEOTAPED EVIDENCE

Beatrice Crofts Yorker, RN, JD, Professor of Nursing at Georgia State University and a leading publisher and researcher in the field of MSBP, writes that she has personally observed a videotape (of a hospitalized child) that showed a mother rinsing a thermometer under running water and then calling in the nurse to read an elevated temperature (covert video surveillance). 4 Indeed, some hospitals have employed covert videotaping to observe the alleged perpetrator's (mother's) behavior with the child.

The legal issues surrounding video surveillance are concerned with the Fourth Amendment to the Constitution of the United States of America, written in 1791, which states:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized." 5

Evidence seized in violation of the Fourth Amendment is not admissible in court under the "Exclusionary Rule" of the Fourth Amendment. Is video camera surveillance in a child's hospital room, which is intended to view the mother's actions with the child, an unreasonable search and seizure?

The most important issues when determining the legality of a hidden video camera in a child's hospital room are the "reasonable expectation of privacy" and "state action." The U. S. Supreme Court recognized exceptions to the Exclusionary Rule for a search warrant. The exceptions are in exigent circumstances such as when a suspect will destroy the evidence or an immediate threat to human life. Court cases support warrantless searches if danger to human life is imminent. Therefore, child health care providers would argue that a mother who is suspected of smothering her child certainly poses an immediate danger to the child. Of course, arguments can be made that obtaining a warrant takes only a short time and allows for an objective legal review on the "exigent" circumstances. 4

The reasonable expectation of privacy was first set forth in Katz v. United States, 389 U.S. 347 (1967). 6 It provides that where a person could reasonably expect that his or her conversations or actions would not be overheard or observed, a search warrant is necessary in order to listen or look in. In Katz, the defendant was in a telephone booth with the door closed and his conversations were listened to by law enforcement. The U.S. Supreme Court said that this was a situation in which he reasonably would have expected that his conversations would be private. It was, therefore, unlawful to listen without a warrant.

The Fourth Amendment (as applied to the states and to the federal government) requires "state action." State action means that actions are taken for some state purpose. For instance, if the police came into the hospital and asked that the hospital videotape a certain room so that the police could collect evidence of a crime, this would be state action and would require a warrant for it to be lawful. One must understand that any crime described in a state or federal statute is considered a crime against the state or federal government.

However state and federal statutes on wiretapping vary. Generally, wiretapping covers audio surveillance, with or without video. Video, without audio (sound), generally does not violate the statutes. By its very nature, a hospital is a place where patients are assessed, observed, and monitored. This can be accomplished only if patients are viewed by nurses, doctors, and other health care personnel. The mother is aware of this monitoring. This, of course, is part of the attention she craves. It should follow that the mother would have only a limited expectation of privacy in a hospital room. 7

Furthermore, in United States v. White, 401 U.S. 745, 745 (1971), 8 the Supreme Court clarified the expectation of privacy by the use of evidence of electronic surveillance in courts of law with the consent of only one party. Thus, the nurse or the physician may be the consenting party. For example, in Avery v. State, 292 A.2d 728 743 (MD. Ct Spec. App. 1972), a woman who was sexually assaulted by her physician was allowed to introduce evidence obtained by a hidden camera in her room. 4

Of course, a warrant by the police to video/audiotape may be applied for through the court system of the applicable state. This warrant application must specifically name the child (victim), the mother, the hospital, and all items to be seized as evidence. They include, but are not limited to, body fluids, diapers, clothing, vomitus, blood, other secretions coming from the victim, and devices and instruments that may have inflicted bodily injury on the mother herself or others for the purpose of using these results of false injury to the victim as evidence, such as fake blood or animal blood that may represent falsely illness or injury to the child. 9 If the above sounds confusing, this is the nature of search warrants. This is a subject of its very own and thus is limited for the purpose of this article. The warrant must be dated and signed under the pains and penalties of perjury.

INTERVENTION/LACK OF INTERVENTION DILEMMA

Many other questions need to be answered when a hospital makes a decision to use covert video surveillance. There are potential legal liabilities to the hospital as well as child-safety, allowable child abuse, intervention/lack of intervention, and the consequences of not initiating video surveillance. 9

Libow, a pre-eminent scholar on MSBP, suggests obtaining consent by adding "videotaping" to the consent form that parents must sign on admission to the hospital to permit medical treatment for their child. Limiting the surveillance to video only, and not audio, is less invasive should legal questions arise. 10 This, of course, brings up the issue of the alleged perpetrator (mother) having access to the child. If such a step is taken, investigators should be available for immediate intervention when viewing a suspicious act by the mother. Having this and other safeguards in place, such as clear policies and procedures, should allay concerns regarding neglect.

A British law journal in 1994 outlined several criticisms of video surveillance, stating it does not work cooperatively with families, it invades privacy, and may even endanger the lives of the children while it tries to "catch" the offenders. 11

The American Civil Liberties Union (ACLU) has been the champion of constitutional liberties in the United States since the 1920s. There are ACLU chapters in every state in the country. They frequently defend many causes in various legal actions in which the issue of civil liberties are at stake. Through its director, Ron Madick, the ACLU stated that the expectation of privacy in a hospital room is so slim that video surveillance is not a problem, in general. However, as cases are brought forward to the ACLU, they will be reviewed on a case-by-case basis (R. Madick, personal communication, October 1998)

ROLE OF EDUCATION AND FORENSICS IN MSBP

Child abuse is one of so many ways in which nurses are involved in forensics. The nursing staff caring for these children will also be observed (most likely unknowingly). This too may be another arena of legal debate concerning employees' rights to privacy, if any

It is the position of both The American Association of Nurse Attorneys (TAANA) and the International Association of Forensic Nurses (IAFN) that an introduction to public and private legal proceedings should be incorporated into nursing curricula. Further, to understand forensic nursing interventions, as is the case in child abuse, the nurse must have a working understanding of the applicable criminal law, its procedures, and evidence. Such education allays anxiety while fostering the interdisciplinary collaboration so necessary in the MSBP cases.

SUMMARY

Based on the existing laws in the United States, video surveillance in a child's hospital room may be permissible for various reasons.

* protection of the child patient

* constant monitoring/assistance in diagnoses and treatment

* protection of the facility and employees from allegations of negligence

REFERENCES