In essence, confidentiality in a school counseling setting refers to the student’s right to have what they share in the counseling relationship to be kept private. The school counselor does not have the right to divulge this information unless under very specific circumstances. This can be tricky as more often than not, our students are minors. Many legal and ethical implications apply to confidentiality.
More from ASCA: “School counselors affirm their belief in the student’s worth and dignity (ASCA, 2016, A.1.a). It is the school counselors’ responsibility to fully respect the right to privacy of those with whom they enter a counseling relationship and to provide an atmosphere of trust and confidence (Lazovsky, 2008) unless keeping that information confidential leads to foreseeable harm to the student. Foreseeable and serious harm is different for each minor in the school setting and is determined by students’ developmental and chronological age, the setting, parental rights and the nature of harm (ASCA, 2016, A.2.e). Confidentiality is an ethical and legal term focused on information communicated within the counseling relationship. A school counselor who is in a counseling relationship with a student has an ethical and legal obligation to keep information contained within that relationship. Exceptions to confidentiality exist, and students should be informed that situations arise in which school counselors must inform others of information obtained in counseling relationships to protect students themselves or others. Privileged communication between a school counselor and a student is a legal term granting privilege to a counseling relationship only if said privilege is granted by federal or state statue. If privilege applies it can provide additional safeguards to confidential information. “(Excerpt taken from: https://www.schoolcounselor.org/asca/media/asca/PositionStatements/2018PublicComment/Confidentiality-DRAFT.pdf)
- ASCA’s ethical standards are a great source of guidance when dealing with issues of confidentiality.
- When in doubt, also reach out to the legal counsel for your district, particularly if you are subpoenaed.
- Legal and Ethical FAQs from ASCA
- (Added 11/10/23, CounselorTalk):
- Q: I’ve had students in the past who were already identified as transgender and were working through that process with parents, but this is the first time I’ve had a student come to me with questions about being transgender before parents are aware (they are also not sure if they want to talk to them yet). The student in question is a 4th grader. I know that, as of this year, HEA 1608 says that we need to inform parents in writing about a student requesting to change their name, pronouns, title, or other identifying language… but are we legally required to let them know about anything else? I want to give this student a safe place to figure themselves out and ask questions, but I also want to make sure that I have a job and want to make sure that I have my bases covered.
- A: I think this will help you with confidentiality! The excerpt below can be found here: https://iga.in.gov/pdf-
documents/123/2023/house/ bills/HB1608/HB1608.05.ENRS. pdf:
- SECTION 1. IC 20-28-10-17, AS ADDED BY P.L.1-2005, SECTION12,
IS AMENDED TO READ AS FOLLOWS [ EFFECTIVE JULY 1, 2023]: Sec. 17. (a) Except as provided in IC 20-33-7.5 and IC 31-32-11-1, a school counselor is immune from disclosing privileged or confidential communication made to the counselor as a counselor by a student.
- SECTION 1. IC 20-28-10-17, AS ADDED BY P.L.1-2005, SECTION12,
- There are many different interpretations of which records can or cannot be subpoenaed.
- I have found that many situations where parents are seeking confidential information can be resolved by developing a relationship of mutual trust and sharing regular reports of how I feel the child is progressing, without giving specifics.
- Confidentiality is central to all we do but can be tricky since we serve minors and have so many different stakeholders.
- What is best practice regarding case notes? How do I know if my personal notes meet the criteria for case notes?
Parents/guardians have a federal right to see anything you write down or record that refers to their child so, as a general rule of thumb, keep your notes in a way you would be comfortable with a parent reading. Personal notes should really be more like memory-joggers for you professionally. Anything that refers to a student, even using initials, ID numbers or personal descriptors, if specific enough, is an educational record that belongs primarily to the parent/guardian. Other student names can be omitted, but the parents/guardians have a right to see the rest. You can keep personal notes if you feel the need to be more specific, but the law has been clear that if anyone knows the notes exist they are then covered under the Family Education and Privacy Act (FERPA). According to FERPA, case notes are “sole-possession records” and not educational records if they meet specific criteria. They must: serve as a memory aid, not be accessible or shared in verbal or written form, be a private note created solely by the individual possessing it and include only observations and professional opinions (from ASCA)
- What do I do if I receive a subpoena for my testimony or case notes?
This is a common part of being a school counselor. Remember, most courts are not looking to attack educators and operate under the general thought that you are attempting to do what is best for students and families. Let your principal know, and ask for assistance to contact your district legal team to get advice on how to proceed. If possible, work with the district legal team to get the subpoena quashed. If you are not able to do this, then you are compelled to testify. When giving a testimony, provide only facts and omit any subjective information that may make room for doubt. A few states give students privileged communication, which means they can render the school counselor incapable of testifying about their communications. Check your state statutes. In most of cases, the courts are entitled to your testimony, and even in the states awarding privilege communication to minors, judges can often exercise discretion if they need the information for the safety and health of the minor.
- (from ASCA
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