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As a practicing school  counselor who works with administrators, students, and parents on two campuses that I serve,  I deal with the issue of confidentiality on an ongoing basis.  I have had to break confidentiality to administrators due to safety concerns about a student’s parent and I had no problems doing so; however, I was also involved in an ethical dilemma when a student who identified as a transgender boy was dating another student who had no idea of  her “boyfriend’s” status(the student had not made any type of transition but was dressing and acting like a boy and no one but her family and the principal knew any differently). The ethical piece came into play when the girlfriend’s mother requested to see me about concerns of her daughter dating this “boy” and that she did not approve because they were so young (7th  grade at the time). Both students were seeing me for different reasons, but one had information that the other did not and ethically, I could not inform the second party. In this case, I feel that confidentiality should have been broken, but my duty was to the first student, who I did encourage to tell, but his fear was that if he divulged his truth, the girl would stop dating him and people would treat him differently-and he was probably correct. Trying to please everyone in scenarios such as the one just discussed rarely happens but when they do, as a school counselor, you must weigh what is the greater good or what would do the most harm. I chose this topic because as a school counselor, I often wonder what is the greater good when it comes to confidentiality, and it was important for me to research what the legal constraints were as well as the ethical ones. In this case--had I broken the first student’s confidentiality, he could have been physically harmed by those who did not agree with his life choices, but the struggle for me at the time was attempting to be an advocate for all and only being allowed to be an advocate for one. As my career progresses as a school counselor, I imagine that I will face similar scenarios time and time again and I can only hope that I will make decisions based on the ethics and legalities of the situation, but always with the end in mind of doing what is best for my student.

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Currently, when it comes to the topic of confidentiality, the American Counseling Association, the American School Counselor Association, along with the Health Insurance Portability and Accountability Act (HIPAA) are the governing agencies at the federal/national level-with HIPAA providing a privacy rule setting standard that protects a client’s medical/mental health information. At the state level, the Texas Model for a Comprehensive School Counseling Program and the Texas Education Code serve as governing agencies for school counselor standards--one of which is the confidentiality of student information. For an added measure of accountability, school counselors are encouraged to use ethical-decision making models to determine ethical outcomes for more complex student issues.  Brown et. al.,(2017) suggests that “because school counselors regularly face ethical dilemmas, they need a methodology for confronting these dilemmas. The Ethical Standards for School Counselors states a school counselor should use an ethical decision-making model when faced with an ethical dilemma” such as breaking confidentiality” and ASCA provides one. Why is it important to have accountability at both levels? According to Trice-Black, et. al. (2013), “Professional school counselors must be aware of the boundaries of their legal and professional roles and ethical responsibilities, especially to understand the exceptions to confidentiality, and when a breach of confidentiality may be justified.” Suspected child abuse is one of those exceptions, but it can come at a cost. Recently, a 3rd-grade student at one of our campuses had a suicide outcry where he alleged that his mother had been beating him and that he could not take it anymore. School counselors are mandated reporters so even though the student asked me not to tell for fear of retribution, I had no choice but to report what he divulged to Child Protective Services. The student, not seeing a change at his home, is now very angry and distrustful of the adults that he confided in, but that is the risk that school counselors must take when a student discloses allegations of abuse. What I learned from my research is that confidentiality is key to the school counselor/student relationship, therefore student privacy is fiercely protected--so much so that several laws, mandates, and codes were created to ensure that student confidentiality is a priority in the counseling relationship. On the flip side of that confidentiality are children who unfortunately feel betrayed when their confidential information is breached, but as an advocate for students, school counselors must do what is best for that student--even if it does not feel like it to the one that is being protected.
Brown, T. et.al.,(2017). Using an ethical decision-making model to address ethical dilemmas in school counseling. Journal of School Counseling, 15, (13), 1-30.

Trice-Black, S., Riechel, M.E.K, & Shillingford, M.A.(2013). School counselors constructions of student confidentiality. Journal of School Counseling, 11,(12), 1-46.

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Federal Law:
MENTAL HEALTH RIGHTS AND ADVOCACY (§§ 9501 - 9502) Bill of Rights
Bill of Rights - 42 U.S.C. § 9501 (2013) :: Title 42 - The Public Health and Welfare :: 2013 US Code :: US Codes and Statutes :: US Law :: Justia

The right to confidentiality of such person's records.

State Law: 22 Tex. Admin. Code § 681.45 Confidentiality and Required Reporting
Section 681.45 - Confidentiality and Required Reporting, 22 Tex. Admin. Code § 681.45 | Casetext Search + Citator

Communication between a licensee and client and the client's records, however, created or stored, are confidential under the provisions of the Texas Health and Safety Code Chapter 611 and other state or federal statutes or rules where such statutes or rules apply to a licensee's practice.

A licensee must not disclose any communication, record, or identity of a client except as provided in Texas Health and Safety Code Chapter 611 or other state or federal statutes or rules.

A licensee must comply with Texas Health and Safety Code, Chapters 181 and 611, concerning access to mental health records and confidential information.

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Tex. Health & Safety Code 576.005, regarding confidentiality of records, states that “communication between a licensee and client and the client’s records, however, created or stored, are confidential under the provisions of the Texas Health and Safety Code Chapter 611 and other statutes or rules where such statutes or rules apply to a licensee’s practice. "HEALTH AND SAFETY CODE CHAPTER 576. RIGHTS OF PATIENTS (texas.gov)

Records of a mental health facility that directly or indirectly identify a present, former, or proposed patient are confidential unless disclosure is permitted by other state law.

22 Tex. Admin. Code § 465.12 Privacy and Confidentiality
Section 465.12 - Privacy and Confidentiality, 22 Tex. Admin. Code § 465.12 | Casetext Search + Citator
(a) Licensees utilize business practices and provide services in a manner that safeguards the privacy and confidentiality of patients and clients.

(b) Licensees must inform their patients or clients about confidentiality and foreseeable limitations on confidentiality created by existing and reasonably foreseeable circumstances prior to the commencement of services as part of the informed consent process.

(c) Licensees keep patients and clients informed of all changes in circumstances affecting confidentiality as they arise.

(d) Licensees comply with Chapter 611 of the Texas Health and Safety Code and all other state and federal law applicable to patient or client confidentiality.

(e) Licensees disclose confidential information without the consent of a patient or client only in compliance with applicable state and federal law.

(f) Licensees who release confidential records relating to a patient or client that also contain confidential information relating to a second patient or client that the licensee obtained through the provision of services to that second individual, and who lack consent or other legal authority to disclose the second individual's identity or records, must remove all identifying and confidential information relating to the second individual before releasing the records.

(g) Licensees may share information for consultation purposes without a consent only to the extent necessary to achieve the purposes of the consultation. Licenses shall exclude information that could lead to the identification of the patient or client.

(h) Licensees shall not require a patient or client to waive a legal right to confidentiality as a condition of providing services.

(i) Licensees include in written and oral reports and consultations, only information germane to the purpose for which the communication is made.

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Best Practices Regarding Confidentiality and the School Counselor

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Best Practices Regarding Confidentiality and the School Counselor

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The School Counselor's Role

The role of the school counselor regarding confidentiality is:

To support the students’ right to privacy and protect confidential information received from students, the family, guardians and staff members

To provide appropriate disclosure and informed consent regarding the counseling relationship and confidentiality

the student poses a danger to self or others

consulting with other professionals, such as colleagues, supervisors, treatment teams and other support personnel, in support of the student

To assert their belief that information shared by students is confidential and should not be revealed without the student’s consent

To adhere to all school board policy and federal and state laws protecting student records, health information and special services (i.e., HIPAA, FERPA, IDEA)

American School Counselor Association. (2023). ASCA the school counselor and confidentiality.https://www.schoolcounselor.org/Standards-Positions/Position-Statements/ASCA-Position-Statements/The-School-Counselor-and-Confidentiality

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When it comes to confidentiality and the school counselor, the American School Counselor Association(ASCA) is very clear: the student and their privacy will always be a priority.

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When I started my journey as a school counselor, I knew very little about the legal aspects of the job--other than being designated as a mandated reporter. Once I understood that it was even more complex than I even imagined, I wondered how I could possibly be an advocate for students, while also protecting parents' rights, and doing what was best for my school. Entering into my now third year of being a public-school counselor, and gaining perspective from experienced counselors and administrators, one thing is crystal clear:  always do what is best for your student. Whenever I feel uncertain or conflicted about a situation with a student, I should always do what is best for the student as long as it is ethical and legal. If I stay within those parameters, then I know that I am doing the right thing for my students. Knowing that I now have the guidelines in place to make these decisions gives me more confidence than I had when I started this journey and I know that I will be a better school counselor because of my increased legal and ethical knowledge.

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ASCA's Ethical Standards for School Counselors Code A.2-G states that school counselors must "recognize that their primary ethical obligation for confidentiality is to the students but balance that obligation with an understanding of parents’/guardians’ legal and inherent rights to be the guiding voice in their children’s lives. School counselors understand the need to balance students’ ethical rights to make choices, their capacity to give consent or assent, and parental or familial legal rights and responsibilities to make decisions on their child’s behalf."(ASCA Ethical Standards for School Counselors - American School Counselor Association (ASCA). Of all the responsibilities that a school counselor undertakes, adhering to the confidentiality code of ethics is the most challenging one. In theory, it sounds simple and many counselors can reduce it to a slogan on a poster in their office that says, "What you say in here, stays in here--EXCEPT-. The "except" part is what can be the most difficult part of being a school counselor. It is much easier to counsel adults because they can give consent and adults understand that if you have to breach confidentiality for something that is told in session, you are doing it for their own good. Even when you make that statement to minor children, many of them do not understand that if they tell you three things: someone is harming them, they want to harm themselves, or they want to harm others, you are a mandated reporter and must--by law, inform the proper authorities. Case in point, a minor student reported to me that he was being abused by his mother. He did not want me to tell as he believed that telling would worsen the situation, but as I tried to explain to him, not telling would continue to place him in more jeopardy.  He trusted that I was trying to help, but from a child's perspective, once he told me, he thought the abuse would stop. It did not--according to him, and in subsequent sessions, he was defiant and angry because nothing (in his eyes) had changed. For him, the trust had been broken and I, and all the other adults, had failed him. Situations like this will always be the school counselor's burden. Ethically and legally, we must always adhere to the law and our code of ethics, but we must also advocate for the student, especially when it comes to confidentiality. Unfortunately, confidentiality and advocacy don't always go hand in hand.

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ASCA Ethical Standards for School Counselors - American School Counselor Association (ASCA)

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ASCA maintains that "privacy is to be honored to the greatest extent possible, which at times may be limited by school counselors’ balance of other competing interests (e.g., best interests of students, the safety of others, parental rights) and adherence to laws, policies and ethical standards pertaining to confidentiality and disclosure in the school setting" which is why when it comes to the privacy of students engaged in a school counselor/student relationship, the American School Counselor Association (ASCA) places such a high value on confidentiality. So much so, that several risk management standards are embedded in the ASCA Code of Ethics. They include:

Inform students of the purposes, goals, techniques, rules and procedures under which they may receive counseling. Disclosure includes informed consent and clarification of the limits of confidentiality.

Keep information confidential unless legal requirements demand confidential information be revealed or a breach is required to prevent serious and foreseeable harm to the student or others.

Convey a student’s highly sensitive information (e.g., a student’s suicidal ideation) through personal contact such as a phone call or visit and not less-secure means such as a notation in the educational record or an email. Adhere to federal, state and local laws and school board policy when conveying sensitive information.

Advocate for physical and virtual workspaces that are arranged to protect the confidentiality of students’ communications and records.

While no risk management strategy is foolproof, consistent adherence to these strategies will result in students who feel valued and most importantly know that their most sensitive information will remain confidential.

American School Counselor Association. (2023). ASCA ethical standards for school counselors.

https://www.schoolcounselor.org/About-School-Counseling/Ethical-Legal-Responsibilities/ASCA-Ethical-Standards-for-School-Counselors-(1)

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In conducting research for local policies regarding confidentiality, one is always directed back to ASCA’s position statement which states that “school counselors recognize their primary obligation regarding confidentiality is to the student but balance that obligation with an understanding of the family or guardians’ legal and inherent rights to be the guiding voice in their children’s lives; however, a school counselor, who is in a counseling relationship with a student, has ethical and legal obligation to keep information contained within that relationship.”  ASCA is the gold standard for how school counselors are to conduct themselves on major issues such as confidentiality, but to my knowledge, there are currently no local policies that state anything different from what is found at the state or federal levels regarding the topic of confidentiality.

American School Counselor Association. (2023). ASCA the school counselor and confidentiality.

https://www.schoolcounselor.org/Standards-Positions/Position-Statements/ASCA-Position-Statements/The-School-Counselor-and-Confidentiality

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HIPAA Privacy Rule and Sharing Information Related to Mental Health Background.
HIPAA Privacy Rule and Sharing Information Related to Mental Health (hhs.gov)

‌The Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule provides consumers with important privacy rights and protections with respect to their health information, including important controls over how their health information is used and disclosed by health plans and health care providers.

Ensuring strong privacy protections is critical to maintaining individuals’ trust in their health care providers and willingness to obtain needed health care services, and these protections are especially important where very sensitive information is concerned, such as mental health information.

At the same time, the Privacy Rule recognizes circumstances arise where health information may need to be shared to ensure the patient receives the best treatment and for other important purposes, such as for the health and safety of the patient or others.

The Rule is carefully balanced to allow uses and disclosures of information—including mental health information—for treatment and these other purposes with appropriate protections.

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Jaffee v. Redmond (95-266), 518 U.S. 1 (1996) Psychotherapist-patient privilege
Jaffee v Redmond: The Federal Psychotherapist-Patient Privilege (jaffee-redmond.org)

That it is appropriate for the federal courts to recognize a psychotherapist privilege under Rule 501 is confirmed by the fact that all 50 States and the District of Columbia have enacted into law some form of psychotherapist privilege.

Jaffee v. Redmond :: 518 U.S. 1 (1996) :: Justia US Supreme Court Center

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While this video discusses medical confidentiality, it can be applied to the school counselor role as well with the three things that professionals should always remember:
1. Most breaches are inadvertent
2. Confidentiality applies to individuals--not families.
3. There are exceptions to confidentiality.
As a school counselor, all three of these suggestions can apply to a student/school counselor relationship so they are important to keep in mind.