THE COUNSELOR, PRIVILEGED COMMUNICATION, …

1 THE counselor , PRIVILEGED . communication , AND THE LAW. RICHARD R. DeBLASSIE*. rights of the school counselor in the realm of Can the school counselor refuse to give PRIVILEGED communication . confidential information when asked to do so by school authorities or when testifying in court? What are the legal rights of the school Confidentiality in Counseling counselor in PRIVILEGED communication ? It is far better not to give a blanket promise of confidentiality to the counselee if the counselor feels that for some reason, depending on the nature of what the coun I HE word "confide" is usually de selee tells him or her, there might be the need fined as "trust by imparting secrets; to tell to communicate to others (3).

2 Any condi in the assurance of secrecy." It comes from tions for confidence should be expressed in the Latin conftdere which means to trust advance. Benjamin (1) points out that we absolutely. When given a secret by some should not promise confidentiality if we are body else we have to fight a natural urge to not certain that we can provide it. The ques share it with a third person. McNelis (6), tion, "If I tell you what happened, do you suggests that keeping a secret requires a promise not to tell my teacher?" should not maturing of the ego, and inability to do so be answered positively unless the counselor indicates a weakness of the ego boundary.

3 Intends to keep the promise. It need not be He also stresses the sacredness of informa answered positively, however, for the inter tion divulged by counselees in the counseling viewer may not be prepared to promise some situation: thing about which he or she knows nothing. The counselor can reply, "I can't promise It is well to remember that anyone suffi ciently troubled to seek professional counseling without knowing, but I do promise that if already feels sensitive, vulnerable, and less than you tell me about it, I won't do anything complete. It is not sufficient to do unto others without first letting you know what it is and as you would have them do unto you.

4 A piece of discussing it with you.". information that at first seems perfectly neutral Nebo ( 7) adds to this by stating: and innocuous, may in fact be of exquisitely painful importance to the client (p. 353). Some workers find themselves boxed in with an over-confidential relationship. The child The purpose here is to discuss the right must know and accept the fact that certain of school counselors to refuse to relate con 'Richard R. DeElassie, Professor and Head, fidential information when asked to do so by Department of Counseling and Educational Psy school authorities or when testifying in court chology, New Mexico State University, Las and, more specifically, to deal with the legal Cruces 522 Educational Leadership kinds of information must be shared with par PRIVILEGED communication in ents, teachers, and other school personnel.

5 Counseling Usually, children will accept the worker's as surance that only information which will help Despite methods used to safeguard rec him will be shared, and that this will be done only with his full knowledge. Some interpre ords or efforts to maintain confidentiality, tation of the worker's contacts with parents and counselors still can be called as witnesses, teachers on a continuing basis must be made put under oath, and forced to testify to per to the child (pp. 391-92). sonal and confidential information under Huckins (2) describes how the right of threat of being cited for contempt of court if privacy of the counselee or client may be they refuse.

6 Disregarded or impinged upon, as far as Oelrich (8) speaks to this dilemma: school counselors and guidance workers are School counselors are not included under concerned, in two different ways. First, they the mantle of PRIVILEGED communication and are may be guilty of relating confidences from therefore subject to litigation under the laws of counseling relationships in an indiscriminate libel and slander when they make information manner or they may be forced to testify to of a defamatory nature available. Some states have adopted laws extending the testimonial confidential disclosures when, and if, their privilege to confidences entrusted in profes knowledge of a counselee could be assumed sional consultations with psychologists.

7 The to have some bearing on a court decision. requirements are such that most counselors are Second, the implication of confidence may eligible for certification as "psychologists," but be nullified through the failure to properly whether or not a school counselor will fall under safeguard student-personnel records. The the protection of psychologists' privileges has effectiveness of counseling and guidance not not been tested (p. 25). only depends upon safeguarding privacy and This is in contrast to doctors, lawyers, maintaining confidentiality; it also depends and ministers who generally are protected by upon the recording and using of information law and thus are not required, ot even al pertinent to counselees and students.

8 Lowed to abrogate the confidences of those The concept of cumulative records pre who seek their assistance. This is " PRIVILEGED sents an obvious dilemma. As Huckins communication " in that it refers to the right notes, of clients to prevent professional persons While they (counselors) cannot counsel from revealing in legal proceedings any infor effectively without such records, neither can mation given in confidence as a result of the they do so when they cannot assure their coun professional relationship. Three conditions selees that the private and personal nature of must be fulfilled before the professional rela the information included is respected as merit tionship arises: (a) there must be one who ing protection.

9 Can counselors, working as a part of an educational team, limit direct access is legally a lawyer, doctor, or minister; (b) at to student cumulative records to themselves or the time the communication in question was to the counseling and guidance staff without an made, the lawyer, doctor, or minister must unfavorable effect upon relationships with other have been acting in a professional capacity;. school personnel? Second, can the examination (c) the person making the communication , of these records be denied to those outside the if in possession of his or her faculties, must school, such as law enforcement officers, par have regarded the professional person as ents, and other interested citizens (p.)

10 26)? his or her doctor, lawyer, or minister. Without the assurance of confidentiality, Two different alternatives are left to students cannot be expected to confide in school counselors for securing the privilege counselors, nor can counselors be expected of confidentiality for their counselees. First, to amass confidential and personal informa they may test the attitude of the courts by tion about counselees and be forced to accept claiming PRIVILEGED communication status the responsibility for its unqualified inter and refusing to testify to the personal, con pretation by lay citizens. fidential information given them by coun- April 1976 523.