Negligence in academic advising and abortion counseling: courts rulings and implications - Special issue: legal and ethical issues in school counseling

Professional School Counseling, Oct, 2002 by Carolyn Stone

Navigating the legal and ethical waters of any profession can be daunting but the waters are especially murky in a human service profession such as counseling. When you add to the complications of counseling individuals clients who are minors in schools, the potential for legal and ethical dilemmas multiply. School counselors' legal and ethical work with minors involves value-laden subjects (e.g., abortion), safety issues (e.g., harassment), and life-threatening concerns (e.g., suicide). There is the inescapable fact that a school counselor's client extends beyond the student to include parents, teachers, administrators, the school district, and the community. The confluence of this multiplicity of responsibility to parents and others (and a setting whose mission and function is to deliver academic instruction) flows together to make the legal and ethical world of school counseling a complex one to negotiate.

The setting in which school counselors work is the most defining and confining characteristic for school counselors when they enter into a counseling relationship with students. Personal or emotional counseling for minors in schools brings immediate tension between the student's right to privacy and the parent's right to be the guiding force in their children's emotional development (Fisher & Sorenson, 1996; Isaacs & Stone, 1999; Kaplan, 1996; Remley & Herlihy, 2001; Salo & Shumate, 1993).

The multifaceted nature of working with minors in schools makes it impossible to develop policy for all the potential variables and situations faced by school counselors. Although there is legal guidance such as legislation and school board policy, school counselors often have to practice without clear guidelines. Occasionally, the legal obligations of school counselors are underscored by court cases.

Two court cases are presented in this article to illuminate school counselors' legal responsibilities in academic advising and abortion counseling. However, it is important to note that court decisions are based on a particular set of facts, and the law of a particular state or area of the country is applied. They do not fully define school counselors' legal obligations as professionals practicing in a particular jurisdiction. These cases are presented to show how appellate court decisions can guide and inform future decision making in a variety of potential malpractice situations.

It is highly unusual for a school counselor to be sued (Parrott, 2001; Remley & Herlihy, 2001; Stone, 2001; Zirkel, 2001a). These court cases are discussed not to disturb peace-of-mind, as that would be an over reaction, but to inform future practice and to equip professionals to exercise even greater care for their minor students.

Negligence

Negligence is a civil wrong or, in legal terms, a tort in which one person breaches a duty to another (Remley & Herlihy, 2001; Valente, 1998). A criminal wrong is a crime against society, whereas a civil wrong is a breach of another's individual rights. A civil wrong causes damages or injury that may be physical, emotional, or monetary, and plaintiffs seek compensation. Malpractice is a civil wrong and is an area of tort law that refers to negligent practice in the rendering of professional services (Remley & Herlihy; Valente). As a general legal principle, civil liability for negligence will accrue if a school counselor is found to owe a duty to another person, breaches that duty by not living up to expected standards, and as a result of the breach of duty, causes damages to another person. According to Prosser (1971), all four of the following elements must be present for negligence to be proven:

* A duty was owed by the school counselor to a student or parent/guardian of a student.

* The duty owed was breached.

* There was a sufficient legal causal connection between the breach of duty and the injury.

* Some injury or damages were suffered.

Negligence has been judicially rejected in the vast majority of cases against school counselors and other educators in the area of educational advising and personal counseling (Fisher & Sorenson, 1996; Gladding, Remley, & Huber, 2001). Courts have been reluctant to determine that a school counselor has a duty as a matter of law to give accurate academic advice or inform parents when their child is considering abortion (Fisher & Sorenson; Gladding et al.). Since no duty is owed, then liability for negligence cannot be imposed. The two court cases discussed in this article represent a departure from previous rulings, in that the courts found that the counselors owed a duty and in one case, the court found that the counselor breached the duty owed (Arnold v. Board of Education of Escambia County, 1989; Sain v. Cedar Rapids Community School District, 2001).

Malpractice is failure to render professional service and the test for failure is determined by what is known as the standard of care or the expected standard of the profession (Cottone & Tarvydas, 1998; Prosser, 1971). Standard of care is determined by evidence of what a reasonable counselor would have done in a similar situation. The opinion of professional experts is usually used to establish the standard of care. Using standard of care as the framework, the court will decide if the school counselor acted as the reasonably competent professional would have under the same or similar circumstances (Cottone & Tarvydas).