Privacy and confidentiality in school counseling - Special issue: legal and ethical issues in school counseling

Professional School Counseling, Oct, 2002 by Harriet L. Glosoff, Robert H. Pate, Jr.

Trust is an essential component in the development of helping relationships. Counselors regard the promise of confidentiality to be essential for the development of client trust. Most individuals seeking counseling services assume that what they divulge in counseling will be kept in confidence by their counselor, with limited exceptions (Glosoff, Herlihy, & Spence, 2000). This is most likely true for children and adolescents as well as adults. Managing confidentiality when counseling minors, however, is more complex than when counseling adults. School counselors must balance their ethical and legal responsibilities to their clients, clients' parents, and school systems. This complex balancing act is one reason that the topic of maintaining the confidences of student clients is raised in virtually every discussion of ethical and legal issues in school counseling. In attempting to weigh their legal and ethical obligations, it is helpful for school counselors to clearly identify those they consider to be "clients." School counselors are part of an educational community. As such, they consult with teachers, administrators, and parents. It is important for school counselors to clarify that their consultation is on behalf of students and that only the students are their clients (except if school counselors offer counseling to students' families).

The Code of Ethics and Standards of Practice of the American Counseling Association (ACA, 1995) and the Ethical Standards for School Counselors of the American School Counselor Association (ASCA, 1998) are two resources available to help school counselors manage privacy and confidentiality in their counseling relationships. School counselors can also look to moral principles or "shared beliefs or agreed-upon assumptions that guide the ethical reasoning of helping professionals" (Remley & Herlihy, 2001, p. 3) upon which the codes of ethics are based. The moral principles most often cited in relation to ethical practices of counselors include the following:

* Veracity or telling the truth

* Justice or fairness

* Nonmaleficence or doing no harm

* Beneficence or doing good

* Autonomy or respecting free choice

* Fidelity or keeping promises

The moral principle of beneficence refers to the responsibility to help clients gain something positive from engaging in counseling. It also includes counselors' duty to "help society in general and people who are potential clients" (Welfel, 2002, p. 34). Autonomy refers to respecting the freedom of clients to choose their own directions and make their own choices within the counseling relationship. Respecting a clients' autonomy does not mean that counselors encourage clients to make decisions independent of significant others (e.g., parents) in their lives or regardless of community and cultural implications. It does mean that "counselors refrain from imposing goals, avoid being judgmental, and are accepting of different values" (Herlihy & Corey, 1996, p. 4).

Applying moral principles to situations involved in respecting the rights of minor clients served in school settings is not always easy. To be effective advocates for their clients' rights, school counselors must have a good grasp of issues related to the following concepts: the legal status of minors and the legality and ethics of privacy, confidentiality, privileged communication, and informed consent. Each of these are reviewed along with relevant ethical standards and factors that complicate school counselors' ability to maintain a relationship based on students' confidence that they can speak freely and without fear of disclosure. Finally, implications for the practice of school counselors is presented.

The Legal Status of Minors

The ACA (1995) Code of Ethics and Standards of Practice specifically references the term minor twice, both in relation to matters of consent. The Ethical Standards for School Counselors (ASCA, 1998) include standards specific to counseling minors throughout the entire document. Neither set of ethical guidelines, however, defines the term minor. Typically, 18 is considered the legal age of majority, unless otherwise designated. Minors, therefore, can legally be defined as those persons under the age of 18. Amendment XXVI (1971) to the U.S. Constitution established the right of 18-year-old citizens to vote and by extension has influenced the generally accepted age at which minors are extended other adult rights. For example, 18 is cited in the Family Educational Rights and Privacy Act (FERPA) as the age at which the transfer of rights from parents to students occurs (FERPA, 1974). School counselors, therefore are faced with 18 as the age at which their clients are legally assumed to be mature, to have full ownership and control of their privacy rights.

The legal concept of the age of majority has implications for minor clients' rights to make choices about entering into counseling as well as their rights to privacy and confidentiality. Overall, although minor clients have "an ethical right to privacy and confidentiality in the counseling relationship ... [the] privacy rights of minors legally belong to their parents or guardians" (Remley & Herlihy, 2001, p. 184). Isaacs and Stone (1999) noted that the Supreme Court has upheld parents' legal right to make critical decisions about their children. (The term parents refers to all who function in the parental role and have the legal rights of parents.) Many people consider the decision to enter into counseling to be an example of a critical decision. Further, because counseling is considered to be a contractual relationship, "minors cannot legally agree to be counseled on their own" (Remley & Herlihy, p. 179). There are some exceptions to this. For example, many states have enacted laws allowing for individuals younger than 18 to receive counseling or medical services without parental consent. Additionally, most states have laws that allow minors to be declared "legally emancipated" from their parents and a few states allow for minors to be deemed a mature minor and capable of understanding the ramifications of counseling.