Confidentiality and Minors

10 October 2016

Confidentiality is an essential component to the counseling process. It allows for the client to build a trustful relationship with the counselor. “ Counselors regard the promise of confidentiality to be essential for the development of client trust” (Glosoff & Pate, 2002). Most individuals that seek counseling services assume that what is discussed in the counseling sessions with the counselor will be kept in confidence with limited exceptions. These exceptions become a complex balancing act for the counselor especially when their clients are minors. Confidentiality is a widely held ethical standard a variously accorded legal right of clients and responsibility of counselors (American Counseling Association, 2005: American School Counseling Association, 2010). According to the Ethical Standards for School Counselors and the Code of Ethics and Standards for Counseling (2010), both specify that counselors are ethically required to take appropriate action and breach confidentiality in certain circumstances involving minors.

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Counselors are required to breach confidentiality if there is imminent danger to self and others, if there is suspected child abuse or neglect or to protect a vulnerable client from danger. There are other limitations to confidentiality and minors as well. Some of these limitations involve parents and their right to know what is happening in counseling sessions between the therapist and their child.

This problem is one that schools counselors and clinical therapists must face when counseling minors. Counselors in both clinical and school settings are faced with ethical issues with regards to confidentiality each time they encounter a client that is a minor. School Counselors have a variety of roles and responsibilities to students, teachers, parents and administrators (Iyer, McGregor & Connor, 2010).

According to the American School Counseling Association (2004), it is the responsibility of the school counselor to help a child develop effective coping skills, identify personal strengths and assets, recognize and express feelings and provide a foundation for the child’s personal and social growth as he or she progresses from school to adulthood as apart of the process. School Counselors must collaborate with all persons involved with the minor in this process, which usually includes the parents and teachers. School

Counselors are also sometimes asked to be apart of child study teams within the school, which can be very beneficial to the students and those involved in their lives. School Counselors must follow the American School Counseling Association’s ethical standards for School Counselors regarding confidentiality. In beginning sessions between the client and the school counselor confidentiality should be discussed and the conditions in which it may have to be breached. According to Lazovsky (2010), The management of student confidentiality has been described as the primary ethical dilemma of school counselors.

There are various ethical and legal issues that arise for School Counselors when dealing with confidentiality. School Counselors are required ethically to report when a student engages in clear and imminent danger to themselves or others. Some school counselors base their decision to breach confidentiality on how imminent the danger is that is being presented by the situation. “Most counselors would agree parents should be informed of drug experimentation by an 8 year old. Many however, would disagree to tell parents that a 16 year old client reported occasional experimentation with marijuana” (Glosoff & Pate, 2002).

This example shows that school counselors should use discretion when deciding to breach confidentiality. These two minor clients are different but each situation has a variety of ways that it could be handled. According to Lazovky (2008), school counselors are advised to consult with supervisors and colleagues before making decisions based on breaching confidentiality. They should also know their state policies and laws in the school jurisdiction. Another ethical and legal issue that can arise for school counselors counseling minors in relation to confidentiality is the disclosure of student provided information to parents.

Privileged communication is apart of confidentiality. Privileged communication allows for clients to ask counselors to keep their communications and records of their counseling sessions confidential. Privilege belongs to the client and the counselor asserts privilege for the client. According to Glosoff (2002), the already complex issue of privileges communication for school counselors is made even more complex by who has the privilege when counseling a minor. Parents of minors rather than minor clients are assumed to control privilege. School Counselors are sometimes subpoenaed for court appearances when the parent’s do not agree on whether the counselors presence is necessary in the testimony or a parental custody dispute may be the heart of the legal proceeding. The ACA and ASCA recognize that school counselors have limits to their ability to protect client confidences. School Counselors must not only be mindful of their ethical duties but cooperate with any laws that that apply to them as well. The Family Education Rights and Privacy Act (FERPA) establishes that parents control the rights of students under the age of 18 (Iyer, McGregor & Connor, 2010).

This includes any of the student’s records such as grades, awards and date of birth. Decisions about the release of these records are based under exceptions under FERPA and also the parent’s consent. However, most records regarding the student are held in safe places where other school officials do not have or need access. Another law that school counselors must keep in mind is HIPAA. This law was enacted to protect patient’s health information. In relation to school counselors, the student’s medical records are being protected. The issue of confidentiality in Child Study Teams has become an ethical dilemma for many school counselors.

The school counselor must decide on what to disclose and what information to inquire about based on each member’s rights and responsibilities. Deciding what to reveal and what to keep confidential can be a hard and difficult task for school counselors. Clinical Therapists face many ethical and legal issues with regards to confidentiality as well. Clinical Therapists are different from School Counselors in their role with minors because the only stakeholder involved with the therapist in most cases is the parent. According to Ellis (2009), minor’s right to confidentiality is an area at times, which ethics and the law are in conflict.

One of these ethical dilemmas arises in the area client privilege. In the case of minors, this privilege extends to the parents who act as representatives to their dependent children. Clinical Therapist struggle with maintaining confidentiality for their minor clients especially when the law is on the side of the parents because they have the right to know. Stone & Issacs (2003) suggest that in order to deal with ethical issues regarding confidentiality and minors therapists should prepare a written professional services agreement which provides details on the limits and conditions of confidentiality.

At this point the parent can be involved in their child’s treatment in various ways. One of the ways that parents can be involved is through periodical family sessions. In the clinical counseling setting, there are often conflicts between duties of confidentiality and the need to share information with parents or other agencies that provide care for a child or adolescent. There can also be ethical conflicts between duties of confidentiality, grounded in respect for patient autonomy, and both statutory and moral obligations to report child abuse, which are grounded in duties of care and protection (Kaplan, 2005).

One issue which troubles some clinical therapists is a statutory obligation to report consensual sexual relationships that adolescents are engaged in with adults irrespective of whether they are clinically judged to be abusive, because they can be framed in many child protection statutes or guidance as constituting abuse. (Ellis, 2009). There are some similarities between confidentiality and counseling minors in both school and clinical settings. One similarity is that in both settings counselors must follow the same ethical guidelines for breaching confidentiality.

Breaching confidentiality is allowed by ethical codes in special or extreme circumstances (Lazovsky, 2008). In both settings counselors must carefully deliberate over the circumstances that are presented to them by the minor client in the counseling sessions. The counselor should then decide whether or not to breach confidentiality. This ethical dilemma is a difficult issue that many counselors are faced with in both clinical and school settings.

Another similarity between counseling minors in both school and clinical settings is that counselors must often consult with other staff members in both settings for the benefit of the children that they serve. It is important for counselors to educate other non-mental health staff members that they must keep confidential any personal information they learn about children as a result of their professional positions (Rehmley & Herley, 2010). If any information were to be disclosed outside of the school or clinical settings, it could be lead to grounds for a lawsuit.

There are some differences between confidentiality and counseling minors in both school and clinical settings as well. One difference is that counselors in clinical settings encounter fewer ethical issues around confidentiality and minors because parents usually have given legal consent for the counselor to work with the client. However in the school setting, Rehmley & Herley (2010) state that the counselor often does not have a legal obligation to obtain parental permission before counseling students unless there is a federal or state statute to the contrary.

Another difference between confidentiality and minors in the school and clinical setting is in the clinical setting the counseling process may be limited to the counselor, the minor client and the parents. Most minor clients who are placed in clinical treatment facilities will be unable to make crucial decisions for themselves. The privilege of informed consent will be given to the parent and the parent will operate in the child’s best interests (Glosoff & Pate, 2002). Counselors in both clinical and school settings find the ethical and legal issues of confidentiality difficult because there are constant conflicts between the law and ethics.

One issue that counselors find causes tension between law and ethics is whether children have the right to enter into a counseling relationship without parental consent. According to Rehmley & Herley (2010), every child has a moral right to privacy in the counseling relationship. Kaplan (2005) believes that children should have the same rights to confidentiality as adult clients. However, counselors constantly struggle between the ethical obligation of privacy to their minor clients and their legal obligation to the parents of the same minor clients to keep their child protected and safe.

There are some ways that counselors are able to deal with these ethical and legal dilemmas regarding confidentiality and minors. One recommendation that was made by Iyer, Baxter-McGregor & Connor (2010) is to develop and maintain a strong informed consent policy. Informed consent is a process that is an ongoing process and should begin before the counseling process begins. According to Glosoff & Pate (2002), it is beneficial in both settings to develop a written informed consent policy so that it can be given to parents and anyone else who is involved in the clients counseling process.

This is beneficial because all parties involved in the process will know about confidentiality and also what to expect. Another recommendation that was suggested by Iyer, Baxter-McGregor & Connor (2010) is to educate all members that are involved in the minor client’s counseling process about the importance of confidentiality. In this way there will be a reduction in the likelihood of difficult situations posed by ethical dilemmas developing in the first place. An explanation of confidentiality would be a great addition to an orientation to parents, teachers or other non-mental health professionals.

They would know what to expect with regards to confidentiality in counseling sessions with minors. Another suggestion that was discussed in the literature in relation to ethical and legal dilemmas regarding confidentiality and minors is to send out educational newsletters and emails. This suggestion takes a proactive stance towards the ethical and legal issue of confidentiality and minors and it helps to avoid the possible ethical dilemma before it occurs (Glosoff &Pate, 2002).

Some possible items that could be included in these newsletters or emails may be a definition of confidentiality, one’s informed consent policy, state regulations or law’s regarding confidentiality and a summary of ASCA’s and ACA’s ethics statements for counselors. Lastly, another suggestion that was discussed in the literature in relation to ethical and legal dilemmas regarding confidentiality and minors is for counselors to develop a strong network of professionals that counselors can confide in and ask advice when they encounter an ethical dilemma (Iyer, Baxter-McGregor & Connor 2010; Glosoff & Pate, 2002).

This network may include school psychologists, local psychologists, counseling professionals and any who works within a similar field. According to Iyer, Baxter-McGregor & Connor (2010), a counselor may use a common framework such Kitchener’s five moral principles regarding ethical decision making. The five moral principal’s are autonomy, justice (fairness), beneficence (doing good), non-maleficence (doing no harm) and fidelity (keeping promises).

Another ethical decision making model that can be followed is by Forester-Miller and Davis which is to 1) Identify the problem, 2) Apply one’s professional code of ethics, 3) Determine the nature and decisions of the dilemma, 4) Generate potential courses of action, 5) Consider the potential consequences of all options and choose a course of action 6) Evaluate the selected course of action and 7) Implement the course of action. Counselors in both clinical and school setting have a tremendous amount of responsibility to uphold when they are counseling minors.

The ethical and legal issues that arise for this group can sometimes differ and also be contradictory to each other. It is the responsibility of the counselors to prepare themselves and all parties involved in the counseling process with the knowledge that is necessary in regards to confidentiality and minors. In many cases when the counselor is left to choose the right course of action in regards to confidentiality, the outcome will inevitable benefit the client.

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