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Legal and Ethical FAQ

CASE NOTES AND SUBPOENAS

Are case notes truly my own or do I have to share them if ever lawyers get involved? Do I have to testify?

The sharing of case notes depends on your state statutes and often your ability to advocate using the legal muscle your ethical standards provide you. In some states, the conversations between school counselors and students are considered privileged communication. In most states, however, school counselors are required to testify in court proceedings. Visit www.schoolcounselor.org/ethics to see your state’s statutes. Even when your state statute grants privilege for the school counselor/student relationship, the statute often contains exceptions and caveats allowing a judge to determine when the needs of the state outweigh the privilege. If the case is tried in federal court, then the state statute may or may not extend.

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 your student, and cite your ethical standards, which support you in safeguarding your student's confidences. Explain that the state will gain no new knowledge should you testify, but on the flip side your student may be harmed and cite your reasons. If all else fails, you must testify unless your student has privilege under state statute.

Never respond to a subpoena until you have consulted with the legal representative for your school district, who may be able to get a motion to quash the subpoena. Try to keep your records and opinions out of court unless in a case of abuse. Our loyalty is to our students and the confidentiality we owe them. We want to protect their privacy to the extent possible. However, if all attempts to avoid relinquishing your records to the court fail, you must submit them for the court.

What detail is necessary for case notes? Is it necessary to have notes on every conversation we have with students? What do we have to disclose to parents from these notes?

Typically school counselors only keep minimal notes, containing student name, time and a few details as a memory aid. However, when we do write detailed notes, for example in the case of a child-abuse situation, you must write with great care as others can see your notes. In most states, your case notes can be subpoenaed, and parents can access them if they record anything other than your observations and professional opinion.

According to the Family Education Rights and Privacy Act (FERPA), case notes are “sole-possession records” and not educational records, which parents are entitled to see, if they meet specific criteria. They must:

  • serve as a memory aid
  • not be accessible or shared in either verbal or written form
  • be a private note created solely by the individual possessing it
  • include only observations and professional opinions

Avoid being paralyzed by the fact that your notes may be subpoenaed. Filter what you write through the lens that it can be read in a court of law (if your students do not have privileged communication). Write down what you need to advocate for your students especially if it is a child sexual abuse case.

Read more on case notes and subpoenas:
Subpoenas, Court Orders and the Trusting Relationship (ASCA School Counselor, March/April 2006)
Confidentiality, Privileged Communication and Your Legal Muscle (ASCA School Counselor, March/April 2012)

CONFIDENTIALITY/NEED TO KNOW

In the past, administrators have asked me to break student confidentiality regarding matters that, in my opinion, aren’t need-to-know. What should I do in cases like this? Is it insubordination to refuse to give that information?

This situation challenges you to use your best political and collaborative skills to demonstrate respect for the position of authority while still adhering to your obligation to protect students' confidential and sensitive information. To simply refuse an administrator’s request outright is to set up a power struggle that will cause you to lose time, energy and, in the case of a few lawsuits, money.

There are no hard and fast rules; rather your response to a request for confidential information has to be made in context of the school counselor/administrator history, relationship and trust. Confidentiality is much harder to respect with the competing interests in a school setting. In most all states, administration is entitled to information on students deemed need to know to optimize a student’s learning. The onus is on you to figure out how to promote students’ autonomy while also letting administrators know you’re listening and respecting their requests. Here are some suggestions for dealing with the confidentiality issue:

  • Look for opportunities to interject information about the critical importance of your confidentiality before it becomes an issue. Early on establish a trusting relationship with your teachers and administrators by letting them know you will immediately involve them in information affecting students’ safety and well-being.
  • Learn to deflect or address requests for confidential information in such a way that the teacher or administrator feels supported. For example: “What are you observing with this student?” “Is there a particular issue I can help you solve?” “Rather than have you labor through my notes, would it help you if I make a list of the most common problems students bring me?”
  • Give your principal a copy of the ASCA Ethical Standards for School Counselors, and offer to highlight the most salient points. This may help set the stage so the administration will know not to seek sensitive confidential information from you.

If you believe the requester of confidential information would support and help a student if the requester had the information, then ask the student if you can share what the requester needs to know. Sometimes we may need to give out information without consulting a student, but this will be the rare exception.

If you do give information, then provide only the necessary information and nothing more. For example, if a student has witnessed domestic violence and comes to school the next morning traumatized and ready to fight it out with everyone in his or her path, it would help if the teacher understood the student has been through a great deal and may need extraordinary support and understanding from the teacher or administrator.

Who needs to know what? How do I balance the issues of confidentiality with need to know for students, teachers, parents and administration, especially with what could be considered at-risk issues?

The need-to-know rule requires school counselors reveal sensitive information only when the recipients of the information has a need to know and is in a position to benefit the student if they have the shared information. Without the assurance of confidentiality, many students would not seek our help. Breaching student confidentiality with teachers, parents and administrators requires continuously balancing the rights of students and parents against the criteria of need to know.

School counselors practice confidentiality through the following concepts: 1) in loco parentis; 2) substantial interest/need to know and 3) qualified privilege:

In loco parentis is a legal doctrine meaning educators assume custody of students in school because students are deprived of protection from their parents or guardians. The school counselor owes a special duty to exercise reasonable care to protect students from harm, and this includes protecting their right to privacy and respecting their confidences. Substantial interest requires school counselors only reveal sensitive information to educators who are in a position to benefit the student if they have the shared information. Qualified privilege protects educators when sharing unflattering information about a student to fulfill our obligations to educate and care for the student. Professionalism requires us to choose our words judiciously in an effort to maintain optimal communication with parents and students. Failure to recognize the power of words in conveying difficult information diminishes opportunities for growth and moves people away from rather than toward good resolutions.

Read more on confidentiality and the need to know:
Confidentiality and the Need to Know (ASCA School Counselor, January/February 2006)
In Loco Parentis, Substantial Interest and Qualified Privilege (ASCA School Counselor, September/October 2006)
Bridging the Gap (ASCA School Counselor, January/February 2012)
Confidentiality vs. Principal Relationships (ASCA School Counselor, September/October 2009)

REPORTING SUSPECTED ABUSE/NEGLECT

What do I do with families that resist getting much-needed mental health care for their children? At what point does it become a neglect issue?

What constitutes neglect is governed by state child abuse laws. For example, Virginia law defines neglect as the “willful act or omission in the care of such child [that] was so gross, wanton and culpable as to show a reckless disregard for human life.” Louisiana law defines neglect as “the refusal or unreasonable failure of a parent or caretaker to supply the child with necessary food, clothing, shelter, care, treatment or counseling for any injury, illness or condition of the child, as a result of which the child’s physical, mental or emotional health and safety are substantially threatened or impaired.” Although these laws seem to define neglect differently, consulting the local child protection office for its interpretation of state law is your wisest move in these situations.

Recently a student’s mother called me and told me her son had shared with her that one of his friends was being physically abused. When I met with the boy in question, however, he denied being abused. Am I required to pursue this situation further? If something happens in the future, will I held liable because I did not report it to the authorities?

The action you must take related to reporting suspected child abuse is governed by state law. Most state laws require school personnel to report the suspicion of child abuse. It is not your job to investigate the suspected abuse. If you’ve been told of potential child abuse and don’t report the alleged abuse, even if the child denies the abuse, you can be fined or even sent to jail in some states. The safest course of action is to call the local child protection service, and report the information (including the other child’s parent’s concerns and the child’s denial).

School counselors also need to be aware of ASCA’s 2003 position statement on child abuse and neglect prevention. ASCA takes the position that school counselors have a “legal, ethical and moral responsibility to report suspected cases of child abuse/neglect to proper authorities.” School counselors are also expected to provide appropriate services to abused or neglected children. Continuing education and consultation will be helpful for school counselors as they work with students who may be being abused or neglected.

Read more about reporting suspected abuse:
Child Abuse: Who Must Report? (ASCA School Counselor, November/December 2011)

Child Abuse Reporting: Advocacy vs. Interference (ASCA School Counselor, January/February 2009)

PREGNANT STUDENTS

What do I do when a student who is a minor tells me she thinks she is pregnant? And, if she hasn’t told her parents and plans to have an abortion, do I have a legal obligation to share the information with her parents and/or administration?

There are many issues to consider when dealing with this difficult situation. It is most important to know your state laws around this topic (i.e., what is the age of consent, issues around pregnancy decision-making, etc.) as well as your school board policies regarding this issue and community norms. Find out how or if the student has confirmed her pregnancy. Other issues to consider include whether the sex was consensual and the age difference of both parties.It is also important to understand the legal issues on parental rights vs. student’s right to confidentiality before preceding any further. Understanding the student’s relationship with her parents will help you initiate how to approach having the student tell the parents. It is imperative to monitor your own biases while at the same time helping the student process how to best disclose to the parents if at all possible.

APPROPRIATE DUTIES

There seems to be an ongoing struggle with putting school counselors in administrative roles, having them deal with disciplinary issues or even evaluative issues with teachers. How do I refuse to do these duties without looking like I’m not a team player?

First and foremost, administrators who put their school counselors in quasi-administrative positions are often acting on historical role definition based on how their predecessors utilized the role of the school counselor. You need to educate your administrators and the faculty about the role of today’s school counselor. Doing a presentation for the administrative team, faculty, parents and other stakeholders regarding current research on school counselor effectiveness and the ASCA National Model will go a long way in addressing the misuse of your time.

Check the Careers/Roles section of the ASCA Web site and the ASCA Position Statements for helpful materials to use in your presentations about the role of the school counselor.

SELF-HARM AND SUICIDE

One of my students has recently shared with me that she often cuts herself. Should I contact her parents immediately, or should I meet with her a few times first to establish trust and try to get her to either tell her parents herself or allow me to do so? For me, the issue is not as black and white as I wish it were.

Black and white doesn’t always fit for ethical decision-making. In this case, you’ll need to assess her cutting behaviors and intentions. If your assessment indicates her intentions are suicidal ideation, of course you should take immediate action and inform her parents and develop a crisis plan. If her actions don’t indicate imminent danger, then it is important to understand her cutting conduct and assess the level of her addiction to this behavior. The relationship you have developed with the student may be the open door to guide her to disclosure of this behavior to her parents.

What is the school counselor's role when a student threatens suicide? Should the parents be notified? Should the school administrators be notified?

Until the Eisel vs. Montgomery County Board of Education court case (1991), courts consistently found that school counselors did not "owe a legal duty" to prevent a student's suicide. Eisel strengthened school counselors' legal obligation to students by satisfying for the first time the first element of negligence and declaring that school counselors have a special relationship with students and owe a duty to try to prevent a student's suicide. The court in the Eisel case cited as critical the in loco parentis doctrine, which means that educators, including school counselors, are legally standing in for parents and owe a special duty to exercise reasonable care to protect a student from harm. The court concluded school counselors have a duty to use reasonable means to attempt to prevent a suicide when they are placed on notice of a student's suicidal intent.

The Maryland Court of Appeals in the Eisel case ruled that school counselors had a duty to notify the parents of a 13-year-old student about the suicidal statements she made to fellow students.

A school counselors' legal liability ends when school authorities or parents have been notified that a student is at risk and appropriate actionas have been recommended. School counselors should be sure to document their notification. However, a school counselor's ethical obligation to a suicidal student may extend beyond parental notification. If a student isn't helped after notifying parents or guardians, then the student's counseling needs haven't been met. 

Read more about student suicide:
Suicide: A Duty Owed (ASCA School Counselor, March/April 2003)
Student Suicide: Legal and Ethical Implications (ASCA School Counselor, May/June 2012)

DUAL RELATIONSHIPS

I work as the only school counselor in a small middle school. Next year, my daughter will enter my school. How do I provide school counseling services to my own child?

Counseling your own family member creates an unethical dual relationship. However, the ASCA Ethical Standards for School Counselors state, “If a dual relationship is unavoidable, the school counselor is responsible for taking action to eliminate or reduce the potential for harm to the student through the use of safeguards, which might include informed consent, consultation, supervision and documentation” (A.4.a.).

Say, for example, you provide your daughter information on career development and academic issues. In those cases, you might want to explain what you would say as a school counselor as well as your opinion as a parent. You will want to avoid personal counseling. If your daughter would benefit from personal counseling, you’ll need to find an outside source. Consultation will be necessary as you navigate the next few years.

Are there ethical issues with high school counselors who also maintain an independent college counseling business outside of school hours? What if they only work with students outside their home district?

Having a private college counseling business has the potential to create unethical dual relationships, yet the business can be maintained with careful consideration of ethical guidelines. The ASCA Ethical Standards for School Counselors state that school counselors provide students with opportunities to explore post-secondary opportunities and create post-secondary plans (A.3.c.). School counselors are also expected to avoid dual relationships that may impair objectivity (A.4.a.). Therefore, it would be unethical for a school counselor to refrain from providing services in the school setting but offer to provide those services to students for a fee in a private practice.

The American Counseling Association Code of Ethics provides some additional guidance. Section C.3.d. states that counselors do not use their work sites to recruit clients for their private practices. Accordingly, if school counselors provide ethically mandated services to students, avoid harmful dual relationships with students and don’t use their place of employment to recruit clients, a private practice won’t violate ethical standards. Working with students in different school districts would seem to help the school counselor avoid ethical challenges.

TIME CONSTRAINTS

Situations spill over and may extend into after-school time or the other half of a day for a part-time person. Ethically, we need to see situations through until they are resolved, but how do you balance that with time constraints? Am I ethically obligated to work beyond my normal work hours to deal with issues with the students?

This situation identifies a common challenge for all school personnel. Typically teachers, administrators and school counselors can be found at school long after work hours have ended. Though a school counselor’s contractual legal obligations can be quantified, the defined schedule creates a minimum obligation. The legal standard of care, acting reasonably under the circumstances, would also include school counselors working with students in crisis until the crisis is resolved.

As the question indicates, school counselors are ethically obligated to see situations through until they are resolved. If school counselors are consistently working well beyond school hours, the school counselor may wish to discuss the situation with an administrator and identify issues such as whether non-counseling activities can be delegated elsewhere or whether hiring additional school counseling personnel is necessary.

SOCIAL MEDIA

I have heard reports of a particular student being cyberbullied. I haven’t seen any of the bullying myself as it’s done via students’ individual Facebook accounts and/or e-mail accounts. Additionally, the student being cyberbullied hasn’t come to me for help. What’s my role in this instance?

If you heard about a student being bullying in a school setting, you would most likely talk with the student even if the student hadn’t approached you. Simply because the bullying happens in cyberspace doesn’t mean you wouldn’t offer the same type of support. Cyber-antics will indubitably leak into the school setting; therefore every school district should develop a policy regarding cyber-bullying. As a pre-emptive approach, school counselors can educate students and parents about cyber-safety and cyber-bullying. Ethically educators cannot be unresponsive to this potentially deadly form of bullying.

I have set up a Facebook page for the school counseling department for my students. Although I am careful not to friend any of my students on my personal Facebook account, sometimes I see things via this department page that make me worry for my students, such as underage drinking or other risky behaviors. If these activities happen off school grounds, what is my role as the school counselor?

The prime directive of a school counselor is to advocate for our students. You can best address it in this situation by clarifying the boundaries of the school counseling department Facebook page. Put an informed consent statement on the front page. Avoiding the slippery slope of a dual relationship with a student on Facebook is a wise idea; however, cyber education is a proactive way to help students understand the impact and consequences of their posts online. React we must.

Read more about social media:
Facing the Facebook Ethics (ASCA School Counselor, November/December 2009)
It’s a Brave New World of Social Media (ASCA School Counselor, May/June 2012)

LETTERS OF RECOMMENDATION

I’ve been asked to write a letter of recommendation for a part-time job at an animal shelter for a student who’s frequently been called into the principal’s office for disciplinary actions. I think, deep down, this student is a good kid, and the additional responsibility of the part-time job will help put this student on the right path. Ethically, should I disclose the student’s disciplinary issues to the future employer or not?

In this case, you’re protected from sharing the student’s disciplinary record because that information is confidential. If you believe the student would do well in this job, you don’t violate any ethical standards by writing a letter to that effect.