Privacy, Confidentiality and Duty to Warn in

School Guidance Services

March 2006

Disclaimer - While the information in these slides are designed to reflect current law, the author is not an attorney and the information does not constitute legal advice. Individuals should seek additional assistance, including consultation with legal counsel, when specific legal problems arise.

Privacy Protections• Privacy – The right to be let alone;

to live without governmental interference in intimate personal relationships or activities, to make fundamental choices involving the person, his family and his relationship with others (Adapted from Black’s Law Dictionary [Sixth Edition] St. Paul MN: West).

• Privacy requirements affecting students apply to all those working in the school system.

What is a Pupil Record?

Pupil record means any item of information, other than directory information, gathered within or outside the district, that is directly related to an identifiable pupil and maintained by the district or required to be maintained by an employee in the performance of his/her duties (emphasis added).

Sole Possession Exception

A pupil record does not include informal notes compiled by a school officer or employee which remain in the sole possession of the maker, are used only as a personal memory aid, and are not accessible or revealed to any other person except a substitute (Education Code Section 49061 and 49062; Title 5 California Code of Regulations Section 430; and Title 34 Code of Federal Regulations Section 99.3) (emphasis added).

Record Access: Parties with Legitimate Educational

Interests

School officials and employeesshall have access to those particular records which are relevant to the legitimate educational interests of the requester (Education Code 49076)(emphasis added).

Note: There’s a longer list of those persons and agencies with access to pupil records, e.g., School Attendance Review Board members.

Privacy as a Function of Pupil Records Law

• Unless authorized by law, privacy laws require information about a pupil contained in pupil records to be protected (access is denied, information is not disclosed).

• When authorization to permit access to pupil records, scope of access is limited by need to fulfill duties.

• Parents have an absolute right of access to all pupil records (see sole possession/confidentiality for limits).

• Other so authorized by law have access to pupil records.

Confidentiality and the School Counselor

• No privilege of confidentiality in common law

• Statutory Privilege • Based on public policy

– disclosed information should be protected absent consent or waiver

– Giving incentive to make full disclosure to obtain effective treatment free from embarrassment and invasion of privacy to advance the public good

• The privilege is not absolute, express limiting language of statute and court interpretation

School Counselors: Confidential Communication

Confidential Information means any information of a personal nature disclosed by a student or that student’s parent or guardian to a school counselor when the student is 12 years of age or older and in the process of receiving counseling from a school counselor.

The information may not become part of the pupil record without the written consent of the person who disclosed the confidential information. The information may not be revealed, released, discussed, or referred to except in certain specified circumstances (Education Code Section 49602).

Scope of Confidentiality Privilege: Information of a Personal Nature

As used in this section, "information of a personal nature" does not include routine objective information related to academic and career counseling (Education Code Section 49602).

Scope of Confidentiality Privilege: Process of Receiving Counseling

The privilege must arise out of a “professional relationship,” (i.e. counseling), to include, but is not limited to:

• academic counseling • career and vocational counseling

• personal and social counseling

Disclosures by a student 12 years of age or older in the process of receiving counseling or the parent or guardian of a student 12 years of age or older and in the process of receiving counseling.

Scope of Confidentiality Extends to:

Exceptions to Confidentiality Privileges

for School Counseling (“Exceptions”):

Referral to ProvidersConfidential information shall not berevealed, released, discussed, orreferred to except,

For the sole purpose of referring the pupil fortreatment:

• discussion with psychotherapists as defined by Section 1010 of the Evidence Code,

• other health care providers, or • school nurse

Cite: Education Code Section 49602 (a)

Exceptions Continued

Confidential information shall not

be revealed, released, discussed,

or referred to except,

• Reporting of child abuse or neglect as required by Article 2.5 (commencing with Section 11165) of Chapter 2 of Title 1 of Part 4 of the Penal Code.

Cite: Education Code Section 49602 (b)

Exceptions ContinuedConfidential information shall not be

revealed, released, discussed, or referred to except,

• Reporting information to the principal or parents of the pupil when the school counselor has reasonable cause to believe that disclosure is necessary to avert a clear and present danger to the health, safety, or welfare of the pupil or the following other persons living in the school community: administrators, teachers, school staff, parents, pupils, and other school community members

• Duty to Warn for Psychotherapists - Tarasoff, Civil Code Section 43.92, and Ewing v. Goldstein

Cite: Education Code Section 49602 (c)

Exceptions ContinuedConfidential information shall not berevealed, released, discussed, orreferred to except,

• Reporting information to the principal, other persons inside the school, as necessary, the parents of the pupil, and other persons outside the school when the pupil indicates that a crime, involving the likelihood of personal injury or significant or substantial property losses, will be or has been committed

Cite: Education Code Section 49602 (d)

Exceptions ContinuedConfidential information shall notbe revealed, released, discussed,or referred to except,

• Reporting information to one or more persons specified in a written waiver after this written waiver of confidence is read and signed by the student and preserved in the student's file.

Cite: Education Code Section 49602 (e)

Exceptions Continued

Notwithstanding (despite) the provisions of this section, a school counselor shall not disclose information deemed to be confidential pursuant to this section to the parents of the pupil when the school counselor has reasonable cause to believe that the disclosure would result in a clear and present danger to the health, safety, or welfare of the pupil.

Cite: Education Code Section 49602

Exceptions ContinuedNotwithstanding the provisions of this section, a school counselor shall disclose information deemed to be confidential pursuant to this section to law enforcement agencies when ordered to do so by order of a court of law, to aid in the investigation of a crime, or when ordered to testify in any administrative or judicial proceeding.

Cite: Education Code Section 49602 (a)

No Limits on Pupil Record Access

• Nothing in this section (on confidentiality in counseling) shall be deemed to limit access to pupil records as provided in Section 49076.

Remember: Sole possession and confidential information does not become part of the pupil record.

Holder of the Privilege

Holder of the confidentiality privilege in school counseling means the student or parent who disclosed personal information under the conditions specified in the statute

Joint holders of privilege

Privilege and the Exceptions

The patient . . . has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication.

Waiver of the Privilege

Waiver of the Privilege

• Where two or more persons are joint holders of a privilege . . . (Section 1014 [psychotherapist-patient privilege]), a waiver of the right of a particular joint holder of the privilege to claim the privilege does not affect the right of another joint holder to claim the privilege.

California Evidence Code 912

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INTEREST AND ATTENTION