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Confidentiality, Privileged Communication and Your Legal Muscle
3/1/2012
Carolyn Stone, Ed.D.
Thursday March 01, 2012
by: Carolyn Stone, Ed.D.

Section: Inside Insight


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Eric, a student you’ve been working with, was living with his aunt when it was discovered his cousin had a methadone laboratory in the woods behind the aunt’s house. You receive a subpoena to appear for a deposition in the prosecution’s bid to learn what Eric has told you about the circumstances of his aunt’s home. In the three years you have known Eric he has been kicked from pillar to post, in and out of foster care and relatives’ homes. You have seized every opportunity to build a trust with Eric, seeking him out in the hallways, bus loading zone, lunch room and individual counseling whenever possible. Teachers remark that your efforts are paying off with success in grades and improvement in behavior. You know nothing about the meth lab, and you want to protect the fragile trusting relationship with Eric. What are your legal and ethical responsibilities to the court and to Eric?

Protecting Eric’s confidences depends on your state and often your ability to advocate using the legal muscle your ethical codes provide you. Privileged communication is given to students in statute. In the majority of states, school counselors are required to testify in court proceedings.

Although school counselors have confidentiality requirements, they cannot deny the courts their testimony unless their students are expressly given privileged communication in state statute or they are successful in using their ethical codes. There is judicial reluctance to extend privileged communication to school counselors’ students because of the age of their students, the mandated setting, parental rights and the nature and function of schools. Even when the statutes grant privilege for the school counselor/student relationship, the statutes often contains exceptions and caveats allowing a judge to determine when the needs of the state outweigh the privilege.

School counselors should use judgment about when it’s appropriate to appeal to the courts to be dismissed from having to testify. Circumstances such as Eric’s would dictate that the ethical stance would be to protect his confidences and advocate to avoid testifying. Consultation with the attorney or judge in Eric’s case may result in a motion to quash, rendering the subpoena null and void. If you deem it important to avoid testifying, then inform the attorney that you do not have any information to help the case (if this is true). Explain that your obligations are to Eric, and cite your ethical codes, which support you in safeguarding his confidences. Explain that the state will gain no new knowledge should you testify but on the flip side Eric may be harmed because the relationship is too fragile. Speak to Eric’s background and inform that you do not want to be one more adult who cannot be trusted to stand up for him and protect him. Advocate. Seek research on abandonment issues and foster care children so you can advocate with facts and data. If your efforts fail, ask the judge to help you protect your trusting relationship with Eric by excusing you, using only notes that are germane to the proceedings and/or sealing documents. If all else fails, you must testify unless your student has privilege under state statute.

Another characteristic of your relationship with Eric is that your counseling has taken place everywhere in the schools. The court’s tendency is to interpret privilege statutes for school counselors very narrowly. Intent, a critical component in a court case, may not be enough to secure privilege. A school counselor may intend that an exchange with a student in the hallways is counseling, but the judge may or may not rule that privilege applies in that situation. For our profession, the interpretation is much more constricted, providing judges the latitude to interpret exceptions to school counselor/student privilege.

California provides an example of the ambiguity of the exceptions in state statutes. State school counseling associations can take a page out of California’s advocacy on behalf of school counselors and ask your state’s attorney general for a ruling on your confidentiality or privilege statute. On Dec. 29, 2011, Kamala Harris, California’s attorney general, weighed in on her interpretation of California § 49602’s exception to confidentiality.

The information shall not be revealed, released, discussed, or referred to, except as follows: (c) Reporting information to the principal or parents of the pupil when the school counselor has reasonable cause to believe that disclosure is necessary to avert a clear and present danger to the health, safety, or welfare of the pupil or the following other persons living in the school community: administrators, teachers, school staff, parents, pupils, and other school community members.

Harris defines this code as permitting but not requiring school counselors to disclose information, including abortion- or pregnancy-related information. Further, if the student is subsequently harmed the code “does not form the basis of civil liability against a school counselor…under the doctrine of negligence per se….”
The complete California Education Code § 49602 says: Any information of a personal nature disclosed by a pupil 12 years of age or older in the process of receiving counseling from a school counselor as specified in Section 49600 is confidential. Any information of a personal nature disclosed to a school counselor by a parent or guardian of a pupil who is 12 years of age or older and who is in the process of receiving counseling from a school counselor as specified in Section 49600 is confidential. The information shall not become part of the pupil record, as defined in subdivision (b) of Section 49061, without the written consent of the person who disclosed the confidential information. The information shall not be revealed, released, discussed, or referred to, except as follows:

(a) Discussion with psychotherapists as defined by Section 1010 of the Evidence Code, other health care provider, or the school nurse, for the sole purpose of referring the pupil for treatment.

(b) Reporting of child abuse or neglect as required by Article 2.5 (commencing with Section 11165) of Chapter 2 of Title 1 of Part 4 of the Penal Code.

(c) Reporting information to the principal or parents of the pupil when the school counselor has reasonable cause to believe that disclosure is necessary to avert a clear and present danger to the health, safety or welfare of the pupil or the following other persons living in the school community: administrators, teachers, school staff, parents, pupils and other school community members.

(d) Reporting information to the principal, other persons inside the school, as necessary, the parents of the pupil, and other persons outside the school when the pupil indicates that a crime, involving the likelihood of personal injury or significant or substantial property losses, will be or has been committed.

(e) Reporting information to one or more persons specified in a written waiver after this written waiver of confidence is read and signed by the pupil and preserved in the pupil’s file.

Notwithstanding the provisions of this section, a school counselor shall not disclose information deemed to be confidential pursuant to this section to the parents of the pupil when the school counselor has reasonable cause to believe that the disclosure would result in a clear and present danger to the health, safety or welfare of the pupil.

Notwithstanding the provisions of this section, a school counselor shall disclose information deemed to be confidential pursuant to this section to law enforcement agencies when ordered to do so by order of a court of la, to aid in the investigation of a crime or when ordered to testify in any administrative or judicial proceeding.
Nothing in this section shall be deemed to limit access to pupil records as provided in Section 49076. Nothing in this section shall be deemed to limit the counselor from conferring with other school staff, as appropriate, regarding modification of the pupil’s academic program.

It is the intent of the legislature that counselors use the privilege of confidentiality under this section to assist the pupil whenever possible to communicate more effectively with parents, school staff and others.
No person required by this section to keep information discussed during counseling confidential shall incur any civil or criminal liability as a result of keeping that information confidential. As used in this section, "information of a personal nature" does not include routine objective information related to academic and career counseling.

Courts respect ethical codes and weigh them heavily in decisions. In absence of statute support for privilege or confidentiality, advocate for Eric using ASCA Ethical Standard A.2.g. "Request of the court that disclosure not be required when the release of confidential information may potentially harm a student or the counseling relationship." ASCA’s Ethical Standards for School Counselors provide the standard of care for the profession and standard of care also gives you legal muscle.

Carolyn Stone, Ed.D., is an associate professor at the University of North Florida and co-chair on ASCA’s Ethics Committee. She can be reached at cstone@unf.edu.