I. Overview

The purpose of this material is to review the conflict created by the competing ethical and legal obligations with regard to confidentiality which are imposed on guidance counselors. Guidance counselors frequently face the challenging question of whether or not to disclose information that has been entrusted to them by a student. The goal of this material is to assist the guidance counselor in resolving the issues associated with the tension between the competing duties owed to the District, parents and the student.

II. The Expanding Role of the Guidance Counselor

The expanding role of the guidance counselor is the direct and proximate cause of the emerging tension with regard to confidentiality. ED 306.14 sets forth the minimum standard imposed on schools with regard to guidance. The section provides that:

(a) The school board shall ensure that each school develops and implements a written plan for the school's guidance and counseling program which:

(b) For each school this plan shall provide for the delivery of the following:

(c) For each high school this plan shall also provide for the delivery of career and college counseling.

Practically speaking, the role of the guidance counselor in today's school setting goes well beyond the functions listed in ED 306.14. Guidance counselors routinely perform the work of a mental health counselor and offer guidance that goes well beyond career and college counseling. For example, the American School Counselor Association [ASCA] defines the role of the "professional school counselor," as including counseling, large group guidance, consultation, coordination. See "The Role of the Professional School Counselor," ASCA, (approved June 1999). www.schoolcounselor.org. Guidance counselors also play a vital role in initiating and operating student assistance programs in the schools.

III. The Department of Education's Standards for Certification as a Guidance Counselor

ED 507.07 sets forth the "entry level" requirements for certification as a guidance counselor. The applicant must have:

There is no explicit state requirement as to the training of guidance counselors in the area of confidentiality. In contrast, the state standards for certification as a school psychologist, require that the school psychologist possess, "knowledge of those ethical principles applicable to the practice of school psychology aimed at protecting the rights of individuals." See ED 507.08

IV. The Ethical Standards Imposed by Professional Organizations on Guidance Counselors

The ethical standards for school counselors are adopted at an organizational level. These ethical standards do not have the force of law, but instead, should be interpreted in a manner that permits a guidance counselor to follow the law. For an example of the detailed nature of these ethical standards, see "Ethical Standards for School Counselors," American School Counselor Association, (revised June 25, 1998), www.schoolcounselor.org/ethics/standards.htm. Similar standards are promulgated by the American Association of Counseling and Development [AACD].

With regard to confidentiality, the ASCA standards observe in part, "[e]ach person has the right to privacy and thereby the right to expect the counselor-counselee relationship to comply with all laws, policies and ethical standards pertaining to confidentiality." The ASCA standards articulate the following with regard to confidentiality:

These ethical guidelines reiterate the core role that the law plays in defining a counselor's ethical duties.

V. The Law Pertaining to Confidentiality

There are various aspects of state and federal law which come to bear on defining the duty and scope of confidentiality to be maintained by a guidance counselor.

A. The Law Pertaining to Privileged Communications: the Absence of a "Testimonial Privilege" for Counselees of Guidance Counselors

The most sacred province of confidentiality is the area of law known as "privileged communications." Also known as the "testimonial privilege," the testimonial privilege is a much narrower limitation on disclosure than a general duty to maintain confidentiality. So, what is a "privileged communication?" Privileged communications are communications which give rise to a legal right on the part of the communicator to invoke the privilege and a duty on the part of the recipient of the communication to protect the confidentiality of the communication. Even a privileged communication can be disclosed if the communicator knowingly waives the privilege. The key to remember is that each of these privileges is held by the communicator, and protected by the recipient of the communication.

What are some examples of relationships that give rise to the privilege? The New Hampshire Rules of Evidence acknowledge the following privileged communications:

Even these privileges are not absolute, but instead are limited by such statutes as the child abuse reporting requirements (N.H. R.S.A. 169-C:32) and the duty to report gunshot wounds (N.H. R.S.A. 631:6).

SO IF EVERYBODY ELSE HAS A PRIVILEGE, WHERE'S MY PRIVILEGE?

ANSWER: In New Hampshire, there is no evidentiary privilege extended to students who confide in a guidance counselor. Therefore, a student does not have the right to preclude a guidance counselor from testifying in Court on the basis of a statutory privilege.

B. Privileges and Duties Arising from Certifications in Other Fields

1. Psychologists, Mental Health Counselors, Pastoral Counselors and Clinical Social Workers

Certain guidance counselors may hold licenses as psychologists, mental health counselors, pastoral counselors, or clinical social workers under N.H. R.S.A. 330-A:1 et seq. N.H. R.S.A. 330-A:32 provides that:

"The confidential relations and communications between any person licensed under provisions of this chapter [N.H. R.S.A. 330-A] and such licensee's client are placed on the same basis as those provided by law between attorney and client and nothing in this chapter shall be construed to require any such privileged communications to be disclosed, unless such disclosure is required by a court order." See N.H. R.S.A. 330-A:32.

There is a clear statutory exemption for the guidance counselor from this statutory chapter. N.H. R.S.A. 330-A:34(I) provides that, . . . [n]othing in this chapter [330-A:1 et seq.] shall be construed to limit: (a) The psychotherapy activities, services or use of official title of a person in the employ of a . . . municipal agency, other political subdivision, or duly chartered educational institution, insofar as such activities and services are a part of the duties of such person in that salaried position." See N.H. R.S.A. 330-A:34. Hence, to the extent that a guidance counselor acts within their job description they are not subject to the confidentiality requirements of N.H. R.S.A. 330-A:32. However, acting outside of the scope of traditional guidance counseling may trigger a statutory duty to preserve the confidentiality of the communication.

2. Alcohol and Drug Abuse Professionals

The state of New Hampshire now offers licensure for alcohol and drug counselors through the Board of Licensing for alcohol and other drug abuse professionals.

N.H. R.S.A. 330-C:12 provides that, "no licensee under this chapter [N.H. R.S.A. 330-C] or an employee of a licensee shall disclose any information which was acquired from clients or persons consulting with the licensee or employee of the licensee in the course of rendering professional services unless otherwise required by law."

The law is apparent that the school guidance counselor who provides SAP services is not constrained by the provisions of N.H. R.S.A. 330-C, and thus is not constrained by N.H. R.S.A. 330-C:12.  N.H. R.S.A. 330-C:5 explicitly states that, "the provisions of this chapter shall not apply to. . . school guidance counselors." However, a guidance counselor may NOT hold him or herself out as a "licensed alcohol and drug counselor," without complying with the licensure requirements of N.H. R.S.A. 330-C:1, et seq.

The law is not as clear in the context of the guidance counselor who is both certified by the DOE and licensed as a alcohol and drug counselor. Therefore, the guidance counselor who holds such a license should be prepared to preserve confidentiality and invoke this statutory obligation.

C. Privacy Obligations under the Federal Educational Right to Privacy Act [FERPA] and ED

Guidance counselors, like all school personnel are obligated to maintain the confidentiality of student information. The Federal Educational Right to Privacy Act [FERPA], P.L. 93-380, speaks to maintaining the rights of both parents and students to maintain the privacy of student information. State regulations, such as ED 1123.01 et seq. also require that school personnel, including guidance counselors maintain the confidentiality of information.

This duty runs to the benefit of both the parent and the student. Thus, there is a clear statutory obligation to furnish records and information to parents. Only in the rarest of circumstances will a guidance counselor be justified in withholding information from a parent. Those circumstances will usually be determined by ethical standards rather than legal standards.

D. Conclusion Regarding Privileges and Privacy

There is no "privileged communication" status afforded to communications between students and guidance counselors. There may be a "privileged communication" status when the guidance counselor is acting with licensure in a related profession.

All guidance counselors have a duty to maintain privacy under FERPA in the same manner as other school professionals.

VI. Understanding the Scope of Confidentiality

There is a tendency to mythologize the scope of a guidance counselor's ethical privacy obligations. For example, a guidance counselor providing SAP counseling may be reticent to share information regarding the nature of counseling and the incidents giving rise to the counseling with members of an IEP Team. Such a reticence illustrates a misunderstanding of the scope and definition of confidentiality.

Guidance in this area can be gleaned from considering the function of statutory confidentiality obligations in analogous professions. A large law firm is obligated, as an entity to preserve the attorney-client privilege. This privilege in no way impedes the ability of the law firm's staff from sharing information necessary to service the client. Similarly, an hospital consists of a team of medical professionals charged with a clear physician-patient duty to preserve confidentiality. This duty in no way impedes the interchange of information among concerned professionals.

In the same fashion, the guidance counselor is one member of an organization with clear federal privacy obligations. Even those guidance counselors who by virtue of collateral licenses have a statutory confidentiality obligation, are not constrained from disclosing relevant information to the IEP Team. This is particularly true where the IEP Team is under a regulatory duty to accurately assess and respond to a broad spectrum of student needs.

VII. Practical Considerations Relating to Confidentiality

There are a number of practical considerations that the Guidance counselor should follow in order to avoid misunderstandings with regard to confidentiality.

VIII. Confidentiality in Relation to Parents

Guidance counselors are frequently confronted with questions regarding their duty of disclosure to parents and the relationship between this duty and the confidential nature of the counseling relationship. There is no state statute that explicitly addresses this question.

The American School Counselor Association sets forth the following ethical guidelines with regard to counselors and the parents:

C. Confidentiality, Parents and the Age of the Student

The state of the law in New Hampshire leaves little doubt that parents can refuse counseling services for their child. If a parent does such, the counselor is obligated to honor that refusal.

When does a minor begin to have a say with regard to confidentiality?

Similarly, parents of child under the age of at least 15 are, in most cases, entitled to be informed of what the child and the guidance counselor have discussed. The thesis is that the parents hold and protect the child's rights at least up to age of 15, and perhaps up to age of 18, the age of majority.

The statute pertaining to confidential communications between victims and sexual assault or domestic violence counselors is instructive by way of analogy. ⁽¹⁾  N.H. R.S.A. 173-C:2 provides a victim of sexual assault or domestic violence with a privilege "to refuse to disclose and to prevent any other person from disclosing a confidential communication made by the victim to a sexual assault counselor or a domestic violence counselor, including any record" made in the course of the counseling relationship. See N.H. R.S.A. 173-C:2.  N.H. R.S.A. 173-C:3 provides that a "minor victim who is emancipated, married, or over the age of 15, unless, in the opinion of the court, the minor is incapable of knowingly waiving the privilege," may either claim or waive the privilege. See N.H. R.S.A. 173-C:3.

It is reasonable to conclude that if a 15 year old minor holds such a statutory privilege, that the grey area between when the parents move outside of the circle of confidentiality and the circle closes to solely include the student is somewhere between the age of 15 and 18.

There are a few statutes that give minors specific authority to act without their parent's knowledge. For example, N.H. R.S.A. 141-C:18 gives a 14 year old minor the right to submit to examination and treatment for a sexually transmitted disease without parental knowledge or consent. See N.H. R.S.A. 141-C:18.

There are other statutes that still suggest parental control and a parental right to be informed up to the age of 18. For example, N.H. R.S.A. 141-F:7 gives a physician the discretion whether or not to report a positive HIV test result to parents or a legal guardian when the child is less than 18 years of age.

There are practical ways in which a guidance counselor can reduce the frequency with which they will be challenged by the question of disclosure to parents. First and foremost, they can adhere to the ethical guidelines which favor parental involvement in most circumstances. Second, they can develop a habit of letting the student know "up front" what their expectations should be with regard to disclosure/nondisclosure. Third, they can limit their scope of responsibility to areas which fall within the domain of guidance counseling, referring students out to services that address issues beyond the domain of school guidance counseling.

When a guidance counselor is confronted with the issue of whether or not to disclose information to the parent, involving a child above the age of 15, the determine will probably be very fact specific. Under such circumstances, it is advisable to seek the advice of the District legal counsel. Ultimately, the counselor should bear in mind that guidance counselors have been sued for failing to disclose information to parents. To date, there are no reported cases in New Hampshire of guidance counselors being held liable for disclosing information to parents. This is in great part due to the fact that any civil suit by a minor must be brought in the name of the parent.

The most critical exception to a general rule favoring disclosure to the parent is in the circumstances where a parent presents a threat of physical harm or sexual abuse to the child. Under such circumstances it is only logical that the counselor will preserve the confidentiality of the child's disclosure and make the necessary report to the Division for Child, Youth, and the Family [DCYF].

IX. The Guidance Counselor's Duty to Report/Disclose: When Confidentiality must Yield

There are a number of statutory and regulatory circumstances when the general duty of confidentiality must yield to a duty to disclose. Examples of circumstances giving rise to the duty to report are discussed below.

A. The Duty to Warn of a Threat of Physical Violence or Substantial Damage to Property

There is a clear common law duty on the part of a guidance counselor to warn of a threat of physical violence against a reasonable identifiable victim or a threat of substantial damage to real property. This duty is best discharged by notifying the potential victim, the police department, and the administration. See e.g. N.H. R.S.A. 330-A:35.

B. The Duty to Report a Violation of the Safe Schools Act

N.H. R.S.A. 193-D:4 (I)(a) clearly imposes a duty on the guidance counselor as a "public school employee," to report "information from the "victim of an act of theft, destruction or violence in a safe school zone" to a "supervisor." This duty, if not met, may give rise to criminal liability on the part of the guidance counselor under N.H. R.S.A. 193-D:6.

C. The Duty to Report "Bullying"

A guidance counselor is also under a statutory duty to report incidents of "bullying." N.H. R.S.A. 193-F:3(II) provides that "[a]ny school employee . . . who has witnessed or has reliable information that a pupil has been subjected to insults, taunts, or challenges, whether verbal or physical in nature, which are likely to intimidate or provoke a violent or disorderly response shall report such incident to the principal, or designee, who shall in turn report the incident to the superintendent." See N.H. R.S.A. 193-F:3(II). Therefore, the guidance counselor may not withhold information they receive from a student which fits within this statutory definition of "bullying" but instead must report the same.

D. Duty to Report Suspect Child Abuse (Physical and Sexual)

Guidance counselors are familiar with their duty to report physical and sexual abuse of a child. This duty arises under N.H. R.S.A. 169-C:29. Any privilege or confidentiality must yield to this duty. See N.H. R.S.A. 169-C:32 (abrogating any privilege in this area).

E. Duty to Report Misconduct Toward Students by School Personnel

Guidance counselors, like all certified teachers are under a duty to report suspected "abuse or neglect" of a student by an educator to the State Bureau of Credentialing. See ED 510.01(b). A failure to report any charges of misconduct or "incidence of suspected misconduct" exposes the non-reporting educator to disciplinary action under ED 510.01(c).

F. Duty to Report/Refer Threats of Self-inflicted Harm

The guidance counselor should always err on the side of reporting/referring threats of suicidal ideation or other self-inflicted harm. There is a clear state regulatory duty on the part of guidance counselors to identify and refer students in need of suicide prevention, and where appropriate to make psychiatric referrals. See ED 306.14. Similarly, in cases of a threat to runaway, the counselor should report the threat to the parents unless the threat is the result of parental abuse or neglect. In those circumstances the report should be made to DCYF.

G. Duty to Report/Refer to IEP Teams and 504 Teams

The guidance counselor is frequently in a position where they gain information that may warrant referral of a student for evaluation to determine whether or not the student is eligible for services under the IDEA or Section 504. As a licensed educator, this federal and state duty extends to the guidance counselor.

Similarly, the guidance counselor is frequently an integral part of the IEP Team. 34 CFR Section 300.24 defines "related services" as including "counseling services." "Counseling services" are defined in Section 300.24(b)(2) as "services provided by qualified social workers, psychologists, guidance counselors, or other qualified personnel." When the guidance counselor provides their service as a component part of the IEP, their confidentiality obligation is qualified by their duty to report IEP progress to the Team. In reality, this type or reporting does not compromise the ethical confidentiality duties of the counselor since each of the Team members are within the scope of the same duty.

H. Pregnancy

The law does not address whether or not a guidance counselor has a duty to report a child's pregnancy to the parents. The District has not developed any written policy on this matter. Therefore, the guidance counselor is left to their own ethical judgment. However, any time a pregnancy or a proposed termination of a pregnancy involves an apparent risk to the health of the student, the guidance counselor should usually yield the confidentiality in lieu of reporting the same to the parents, but only after affording the student an opportunity to either self-report, or jointly report. A clear referral should also be made for medical assistance. When in doubt, the counselor should err on the side of reporting, since a counselor's failure to report has been the subject of litigation, whereas there is no reported case of litigation resulting from the report to the parent.

It is permissible for a guidance counselor to refer a student to an outside agency. However, in doing such the counselor should avoid counseling the student to make any particular decision regarding a pregnancy. The counselor should, in almost all cases encourage the student to self-report his or her circumstances to a parent or legal guardian. This is particularly true when the student is below the age at which he or she can consent to medical treatment and care.

X. Conclusion

There remains a significant tension between the guidance counselor's desire to preserve the confidential nature of the counseling relationship and the duties the counselor owes to both the parents and the law. In those areas where the law is silent, the counselor must seek to maintain a consistent standard of ethical practices.