In This Issue

Confidentiality in schools: Do you know what to do?

A discussion of limitations to confidentiality, standards of professional organizations and legal regulations

By Monica Pires

Abstract: School settings can generally pose several challenges for maintaining confidentiality. Due to the varying roles school psychologists assume (e.g., evaluator, counselor, and consultant), it may be unclear when and what information should be kept confidential. Although students are entitled to confidentiality rights, parents are also given access to this information. Furthermore, school educators such as teachers and principals may request disclosure of what may be considered confidential information. Understanding confidentiality within school settings is critical to good school psychology practice. Limitations to confidentiality, standards of professional organizations, and legal regulations are discussed.

The competing interests and obligations that school psychologists have to students, parents, teachers, and administrators can make confidentiality in school settings difficult. School psychologists rely on other professionals and families when planning for student services. They often request and disseminate information to help their students; however, in some instances, it may be unclear when and under which circumstances the ethical standards of confidentiality apply.

Confidentiality refers to the ethical obligation to conceal information obtained through a professional relationship (Jacob & Hartshorne, 2007). The National Association of School Psychologists–Principles for Professional Ethics (2000) and the American Psychological Association–Ethical Principles of Psychologists and Code of Conduct (2002) have outlined confidentiality standards for school psychologist to follow. School psychologists are held to a standard whereby they are expected to “respect the confidentiality of information obtained during their professional work. Information is revealed only with the informed consent of the client, or the client’s parents or legal guardian, except in those situations in which failure to release information would result in clear danger to the client or others” (NASP-PPE, III, A, #9).

All information revealed to school psychologists as individuals receive services (e.g., counseling or consultation) is therefore protected, unless concealing that information would result in “clear danger.”

In schools, an added complexity exists since students are entitled to confidentiality rights; however, because they are minors parents are given the right to access information regarding the services received by their children (Jacob, 2008).

This is particularly important in the case of direct service delivery (such as counseling), which may affect professional practice. Isaacs and Stone (2001) found that often adolescents feel reluctant to participate in counseling because they do not have the same entitlement as adults do. Consequently, building a therapeutic relationship with the child or adolescent may become difficult, as some information intended to not be disclosed will have to be shared with parents. Nonetheless, school psychologists should explain to parents the importance of confidentiality and seek parents’ agreement to only inquire about general information (Jacob & Hartshorne, 2007). A trusting relationship needs to be built in order to effectively help children and adolescents reach positive outcomes.

In addition, school psychologists should inform parents that they will communicate with them immediately should they become aware of a serious situation. Parents should be informed about issues concerning sexuality, pregnancy, physical or sexual abuse, substance abuse, crimes against property, and danger to self or others (Isaacs & Stone, 2001). Reassuring parents that they will be informed of serious situations is important to establish trust and strengthen home-school collaboration.

Otherwise, keeping parents informed with brief summaries of sessions should be sufficient.

Limits of confidentiality should be discussed at the beginning of services, unless the student was referred for an evaluation to determine if he or she is a threat to self or others (Flanagan, Miller, & Jacob, 2005). Students and parents should know from the beginning of services that the school psychologist is there to help and will do everything he or she can that is in the best interests of the student. If at any point the school psychologist determines that confidentiality must be breached, explaining to the student the reasons for disclosure becomes an important part of the process. It is also best to collaborate with the student when sharing confidential information (Isaacs & Stone, 2001). This should ease the process and empower the student to problem-solve and engage in decisionmaking. It also promotes autonomy and strengthens trust between the school psychologist and the student. Only information that is crucial to understanding and resolving the situation should be shared (Davis & Sandoval, 1982).

There are three situations in which school psychologists are obligated to disclose confidential information: 1) if the student makes the request, 2) if there is a situation involving danger to the self or others, or 3) if it is mandated by law (Jacob & Hartshorne, 2007). Fisher (2009) explained that school psychologists have the legal duty to protect others from foreseeable danger (e.g., suicide and sexually active HIV individuals) and the legal duty to protect all students attending their school from possible harm (e.g. student-on-student violence). Duty to warn and protect laws usually require that third party individuals be informed of potential harm, so that such individual can seek safe environments.

Nevertheless, in legal settings confidential information is classified as “privileged communication.” In other words, information shared with the intent of helping a client or in a professional relationship is not subject to disclosure (Jacob & Hartshorne, 2007). In school settings, this right to privacy is given to minors and their parents or guardians. There are some exceptions to privileged communication, for example, records or testimony can be subpoenaed by a court of law for cases involving child abuse and criminal acts. When a subpoena requests privileged communications, the school psychologist is obligated to respond and should inform the court that he or she cannot provide privileged information without consent from his or her client (Fisher, 2009). The presiding judge has the power to waive privileged communication, which would then permit disclosure of information. If a school psychologist discloses information without the consent of the client or the waiver of the presiding judge, he or she may be at risk for a malpractice lawsuit (Jacob & Hartshorne, 2007).

Confidentiality issues also arise in consultation and collaboration with others. These are similar to the confidentiality standards for direct services. The school psychologist should maintain confidentiality of all that is said in consultation and collaboration; if this does not occur, the trust that is essential for a safe professional relationship will not emerge.

Just as with direct services, limits of confidentiality and its parameters should also be discussed at the onset of consultation services and collaboration. The consultant may have to explain to others (e.g., administrators) that general impressions may be shared but not specific information (Davis & Sandoval, 1982; Erchul & Marten, 2002). Information obtained through consultation or collaboration is simply to be shared for the purpose of helping the student. Only the minimal information necessary to help should be shared (Jacob & Hartshorne, 2007).

Although at first glance confidentiality may appear to be a simple ethical principle, the application of these ideas can be more complex, especially when working within the constraints of the law. For example, a school psychologist may question what to do if he or she learns of a student who is sexually active or has committed a past criminal act. Generally, school psychologists do not have a legal duty to report unless, as mentioned earlier, there is a potential for harm to occur. A school psychologist is not required by federal law to report this, however, specific state laws or district policy may differ (Jacobs, 2008). Depending on the situation, school psychologists may be legally obligated to inform parents, authorities, or a public health clinic. In all unclear issues pertaining to confidentiality, school psychologists should consult their state laws and district policies. They may also consult with administrators and the district lawyers.

In addition to the ethical standards of confidentiality, laws exist to protect the privacy of individuals. The Family Educational Rights and Privacy Act (FERPA) of 1974 is a federal law that protects the students’ records in all schools that receive federal funding (Fisher, 2009). Consent is needed to allow release of records to others, except in special circumstances (e.g., health, safety, legal request, etc.). Under FERPA, parents, guardians, or an eligible student (age 18 or in post secondary programs) must be informed yearly of their right to access their records and must also receive an explanation of the procedures necessary to access them. Parents can review records such as actual test protocols, including specific test items (Canter, 2001a).

Any educational agency or institution that denies or prevents parents, guardians, or an eligible student the right to access the educational records may no longer receive federal funding (Boomer & Hartshorne, 1995). Furthermore, the Individuals with Disabilities Education Act (IDEA) requires that school districts establish policies and procedures similar to those required by FERPA. School psychologists should be familiar with their specific district policies and procedures for obtaining and disposing of records (Canter, 2001b).

School psychologists are ethically obligated to keep records of their work but are to document only information that is necessary to provide services. As these records are created, stored, accessed, disseminated, and disposed, they are to be protected in accordance with confidentiality standards (APA, Standard 6.02). They must be stored in a secure place, access should be limited to those who need the information to provide appropriate services, identifying information should be removed whenever possible, and disposal of records should take place in accordance with the law when records are no longer needed (Fisher, 2009). Records can take various formats (e.g., written or printed, audio or video recordings, emails, faxes, etc.). School psychologists should consult their local educational laws to know what kinds of information to store, how to store it, and for how long to store it (Jacob & Hartshorne, 2007). For students with disabilities, school records include medical, educational, and psychological information (Canter, 2001b). A psychological record may consist of documents relevant to evaluations, team meeting notes, Individualized Education Plans (IEPs), documents describing interventions, manifestation records, and suspension records.

Confidentiality is an ethical principle to ensure the privacy of clients, whether they are students, parents, teachers, or another interested party. It serves the purpose of preventing improper dissemination of information that may result in bias and fosters an environment of trust and safety. Although applications of confidentiality can be confusing, a strong knowledge base of ethical standards and the law can improve and facilitate the practice of psychological services in schools.

References

American Psychological Association. (2002). Ethical principles of psychologists and code of conduct. American Psychologist, 57, 1060-1073.

Boomer, L., & Hartshorne, T. (1995). Confidentiality and student records: A hypothetical case. Preventing School Failure, 39(2), 15.

Canter, A. (2001a). Test protocols, part I: Right to review and copy. Communiqué, 29(7), 30.

Canter, A. (2001b). Test protocols, part II: Storage and disposal. Communiqué, 30(1), 16.

Davis, J. M. & Sandoval, J. (1982). Applied ethics for school-based consultants. Professional Psychology, 13, 543-551.

Erchul, W. P., & Martens, B. K. (2002). School consultation: Conceptual and empirical bases of practice (2nd ed.). New York: Kluwer Academic/Plenum Publishers.

Fisher, C. B. (2009). Decoding the ethics code: A practical guide for psychologists (2nd ed.). Thousand Oaks, CA: Sage Publications.

Flanagan, R., Miller, J., & Jacob, S. (2005). The 2002 revision of the American Psychological Association's ethics code: Implications for school psychologists. Psychology in the Schools, 42(4), 433-445.

Isaacs, M., & Stone, C. (2001). Confidentiality with minors: Mental health counselors' attitudes toward breaching or preserving confidentiality. Journal of Mental Health Counseling, 23(4), 342.

Jacob, S. (2008). Best practices in developing ethical school psychological practice. In A. Thomas & J. Grimes (Eds.), Best practices in school psychology V (pp. 1932-1932). Bethesda, MD: National Association of School Psychologists.

Jacob, S., & Hartshorne, T. S. (2007). Ethics and law for school psychologists (5th ed.). Hoboken, NJ: John Wiley & Sons.

National Association of School Psychologists. (2000). Professional conduct manual. Bethesda, MD: Author. Retrieved April 6, 2010, from http://www.nasponline.org/standards/professionalcond.pdf (PDF, 214KB)

About the Author

Monica Pires is a doctoral candidate in school psychology program at the University at Albany, State University of New York. Monica also holds a master of science in Counseling from Pace University and is credentialed as a Nationally Certified School Psychologist (NCSP). She is completing an APPIC predoctoral internship at Newark Public Schools, N.J.