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The Privacy Obligations of School Counsellors

2/11/23
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As part of their duty of care towards students, schools often employ counsellors to help students with academic, health and personal issues. As a result, counsellors inevitably become privy to the personal information of students. This article explores what obligations school counsellors have with respect to this information.


Who Is a School Counsellor?

Some schools employ school counsellors to help students resolve a range of educational, health and personal issues. School counsellors are usually trained professionals, although the term is a broad one that refers to persons that may have a range of different qualifications. For example, some will be registered psychologists, while others may have qualifications in social work or counselling. Schools might directly engage these persons as employees, or a contractor may provide counselling services to the school. Regardless of their qualifications or how they are engaged, school counsellors are important because they help the school meet their duty of care to students.  

 

 

Do School Counsellors Have Privacy and Confidentiality Obligations?

School counsellors have a common law duty of confidentiality as part of the counsellor/student relationship. This is designed to enable students to feel comfortable speaking to them. Counsellors usually advise students at the start of the relationship of the confidential nature of their discussions and explain the limits to confidentiality. This duty may be applied to prevent divulging information both within the school and outside the school.

School counsellors are usually required to maintain their client’s confidence, not just legally, but ethically too. For example the Australian Psychological Society’s Code of Ethics requires psychologists to “safeguard the confidentiality of information obtained during their provision of psychological services”, subject to any legal or organisational requirements to do otherwise. The Australian Counselling Association Code of Ethics has similar provisions.

Counsellors at independent schools across Australia are also subject to the school’s requirements to comply with the Privacy Act 1988 (Cth) which protects the personal information of an identifiable individual that is collected, used, disclosed, or held by the school. In some jurisdictions, there may also be state-specific laws that impose obligations on schools and their counsellors. For example, under the Health Records Act 2001 (Vic), schools in Victoria have additional obligations with respect to health information that they collect.

 

When Can a School Counsellor Disclose Personal Information?

Obtaining a student’s consent to disclose information that they provided to a counsellor is a critical part of maintaining the safety of the counsellor/student relationship, however, student counselling is part of a school’s duty of care towards its students. This means that there may be times when counsellors will need to disclose information about a student with or without their consent. It is important that counsellors explain these limits to confidentiality to all relevant persons, in a manner that can be comprehended, prior to working with a student.

 

A school counsellor might need to disclose information about a student without their consent in the following circumstances:

  • to lessen or prevent a serious threat to life health or safety, which may be to the student or the public
  • where a disclosure is required to comply with a court order
  • to comply with reporting requirements under various child protection legislation, for example, a requirement to make a mandatory report or to make a notification of reportable conduct in relation to an employee of the school
  • when sharing information with other agencies under various laws (for example, sharing information relating to the safety, welfare or wellbeing of a child or young person)
  • to report a serious offence (for example, in New South Wales, someone who knows or believes that a person has committed a serious criminal offence and has information that might be of material assistance must bring this information to the attention of the police).

 

This list is not exhaustive and, to further complicate matters, there are also some exceptions to some of the above circumstances. For instance, in NSW, there may be some limited circumstances when a school counsellor may not be prosecuted for failing to report a serious criminal offence to police. Accordingly, schools should consider seeking legal advice and support for a staff member who is considering whether they should disclose the information of a student to ensure that the school avoids any liability that comes from not disclosing information. Obtaining legal advice would also be prudent in responding to a subpoena. Seeking advice can usually be achieved without breaching a student’s confidentiality, however, only information that is needed for the counsellor to understand what steps they need to take should be provided to the person providing advice.

 

It should also be noted that information received through counselling can also usually be disclosed with informed consent. We discuss this in more detail below.

 

Can the School Access a Student’s Counselling Records?

Where a counsellor is an employee of the school, their records are the records of the school, their employer. Technically, this means that the school would have the right to access these records in the same way that they can access any other school records affecting students. However, schools should still be mindful of the student’s right to have their information treated confidentially. As a result, if or when the school should access such records will probably depend on the circumstances in each case and the school’s duty of care to the student. At the very least, counsellors should alert students to the possibility of their information being accessed by the school and only share information with members of the school who need to know.

The situation is a little different when a contractor provides counselling services to the school. In this case, access to the student’s records will turn on the contractual relationship between the school and the contractor. Regardless of who owns the records, there will probably still be instances where the school requires access to these records. As a result, the school will probably want to insert a condition in their contract that requires the counsellor to provide reports or inform the school on matters regarding the student or other students at the school. The school should also provide a collection notice alerting students and parents/carers to the fact that they may access this information.

Where private counsellors are engaged by parents/carers directly, the school usually has no relationship with the counsellor and therefore will not be able to access the student’s information.

 

 

Can the Student and their Parents/Carers Access the Student’s Counselling Records?

Although there are some exceptions (see Australian Privacy Principle (APP) 12), privacy legislation usually allows an individual to access information about themselves. The most common reasons why a school may refuse to provide access is if they reasonably believe that by making the information available it would “pose a serious threat to the life, health or safety of any individual, or to public health or public safety” or it would have “an unreasonable impact on the privacy of other individuals”, for example, other individuals mentioned in the records or the opinions of teachers and counsellors.

In some cases, the student’s information may also be disclosed to parents/carers. This usually depends on whether a student has the capacity to either consent or withhold their consent to their information being provided to a parent/carer. In cases where a student lacks the capacity to consent to disclosure, a parent/carer will usually be able to access the student’s information or provide their consent to the information being shared with another party. Although there is no accepted age for when a child can provide consent, the APP Guidelines suggest that children aged 15 or older will usually have the capacity to consent. This is therefore less likely to be an issue in the primary school context. The most important consideration for schools in these instances is, once again, their duty of care to students. For example, if disclosing the information to parents/carers will result in harm to the student, the information should not be disclosed.

 

 

 

What Should Schools Remember to Do?

When considering whether they should disclose a student’s personal information to someone, school counsellors must consider relevant privacy laws, their duty of care to the student and the student’s own views about whether they want their information to be shared.

To help counsellors balance these considerations, and with any other issues that might arise, schools should ensure that:

  • students are made aware at the outset of conversations with counsellors the situations when their information may be disclosed to other parties, such as the school or police
  • the school has appropriate policies and procedures in place and that these are communicated to the school community so that everyone understands their obligations with respect to a student’s personal information, including when to obtain a student’s consent
  • school counsellors have had sufficient training so that they are aware of their obligations, including when it is appropriate to disclose information
  • counselling records are securely stored and appropriately disposed of, since these records are considered sensitive health information
  • relevant members of the school community understand when information collected about students will be disclosed. It might be a good idea for schools to refer to student counselling in the school’s Privacy Policy to ensure that this occurs.

For more information, independent schools can refer to Independent Schools Australia and the National Catholic Education Commission’s Privacy Compliance Manual.

 

 

Disclaimer

The contents of this article are generic in nature and do not represent advice that can be relied on. This article has been prepared without taking account of any person’s individual objectives, situation or particular needs. You should seek professional advice based on your own personal circumstances. The author and any other parties involved in the preparation or distribution of this article expressly disclaim any form of liability to any person in respect of this article and any consequences arising from its use by any person in reliance in whole or any part of the contents of this article.

 

 

 

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About the Author

Filip Manganaro

Filip Manganaro is a Senior Legal Research Associate at Ideagen CompliSpace. He has a law degree from the University of New South Wales.

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