“The United States Department of Education (USDE) report on supporting student mental health found that the pandemic has had a significant impact on students' mental health, adding considerable stress and resulting in notably elevated mental health challenges.”  (TEA, 2023)

In regards to maintaining client confidentiality when called to testify, this is a particularly sticky issue for mental health care providers and school counselors. 

Often professionals must balance the rights of the client, personal liability, and the liability of their employer while meeting their civic responsibilities. It will be especially challenging to know whom to rely on for advice without a firm understanding of the legal and ethical constraints of testifying.

School counselors and Licensed Professional Counselors in Texas are also governed by the Texas Behavioral Health Executive Council : 

“The Board’s mission is to protect the people of Texas by ensuring professional counselors are qualified and competent practitioners. The board establishes qualifications for licensure, as well as the ethical standards to practice as a professional counselor in the state of Texas.” (TBHEC, nd.)

U.S. Constitutional Law- courts often recognize client privilege but different states apply it to different levels or therapeutic licensure, and providers need to understand the differences between client confidentiality rights and client privilege in the specific context of the case they are called to testify in, civil or criminal. 

Texas Constitutional Law- Texas Rule of Evidence 510, also known as the Mental Health Information Privilege, protects confidential communications between a patient and a mental health professional. This includes any records created or maintained by the professional that relate to the patient's identity, diagnosis, evaluation, or treatment. (Texas Rules of Evidence Rule 510. – Texas Rules of Evidence, n.d.-b)

Federal Administrative Law: The Health Insurance Portability and Accountability Act (HIPAA) is a federal law that protects the privacy of health information and gives patients certain rights over their health information. (Health Insurance Portability and Accountability Act of 1996 (HIPAA), 2024)

Both have exceptions and or threshold on how this applies to compulosory testiomony, typically depending on whether the case is civil or criminal.

"Counselors and their clients in private practice are protected by privileged communication law in Texas. However, other counselors are not completely without recourse when called upon to testify in court." ((Herlihy & Sheeley, 1985))

"Even when there is privilege language in a state statute, the judge may be reluctant to extend the privilege to students of school counselors because of the age of their clients and the setting in which they work. Another problem with privilege is the definition of what constitutes counseling. The court’s tendency is to interpret privileged communication statutes for school counselors very narrowly. Counseling can take place in hallways, playgrounds, bus loading zones, virtually all over the school, but courts do not always recognize this as “counseling.”

Currently, there are no court cases to give authoritative guidance on this matter. A school counselor may believe that an exchange with a student in the cafeteria is counseling, intending all communication in that meeting to be counseling, and thereafter the student tries to invoke privilege. However, the judge may or may not rule that privilege applies in the situation. Whereas, if an attorney and client exchange any information anywhere – the subway, sauna, tennis court – every utterance is privilege. For the school counseling profession, the interpretation is much more confined, with nearly every state statute offering exceptions to school counselor/student privilege to be interpreted as the judges see fit." (American School Counselor Association (ASCA), 2015)

Client welfare, as addressed in Section A.1, “The primary responsibility of counselors is to respect the dignity and promote the welfare of clients.” should always be a careful consideration when giving testimony about a client.

• Texas Health and Safety Code

  This code protects the confidentiality of communications between a patient and a professional, including records of the patient's identity, diagnosis, evaluation, or treatment:

  • Sec. 611.002. CONFIDENTIALITY OF INFORMATION AND PROHIBITION AGAINST DISCLOSURE. (a) Communications between a patient and a professional, and records of the identity, diagnosis, evaluation, or treatment of a patient that are created or maintained by a professional, are confidential.(b) Confidential communications or records may not be disclosed except as provided by Section 611.004, 611.0041, or 611.0045.(b-1) No exception to the privilege of confidentiality under Section 611.004 may be construed to create an independent duty or requirement to disclose the confidential information to which the exception applies.(c) This section applies regardless of when the patient received services from a professional. (HEALTH AND SAFETY CODE CHAPTER 611. MENTAL HEALTH RECORDS, n.d.) 

• Texas Family Code

  This code allows for the disclosure of private discussions between a therapist and patient in some instances, such as when certain conditions apply under Section 107. 

A therapist working with children may inadvertently become involved in divorce proceedings  "if session reports are used to assess visitation arrangements or even parental fitness. A licensed clinical social worker providing counseling required by previous court orders may present insights about the emotional impact of parental actions or domestic violence incidents on a child." (Migliaccio, 2024)

• Understand the law

  • Counselors should be aware of the laws and regulations that govern their interactions with clients. They should also understand the ACA Code of Ethics and other relevant ethics codes. 

    • You may want to consult your Union Rep, or the TXCA the ASCA advisory board to determine your rights, responsibilities, and potential need for legal representation

• Inform the district 

  • Notify your campus administrator; consider conferring with district legal representation; verify legal requirement for testimony;

  • Consider confering with district legal counsel- keeping in mind they represent the district, not YOU

• Prepare the Client/ Student

  • Counselors should prepare for the possibility of being subpoenaed and testifying in court. They should inform client/ parent/ guardian 7 student for what to expect and educate them on the limits of confidentiality and consent;

  • Counselors shouldalso prepare clinical notes to demonstrate the standard of care and that they have managed the risk of legal or ethical violations. 

• Prepare

  • Counselors should prepare for the possibility of being subpoenaed and testifying in court. They should also prepare clinical notes to demonstrate the standard of care and that they have managed the risk of legal or ethical violations. 

• Be honest and objective

  • Counselors should be accurate, honest, and objective when reporting their professional judgments. They should provide only facts and avoid subjective information. 

• Protect confidentiality

  • Counselors should inform clients and parents of exceptions to confidentiality before treatment begins. They should also be aware that sole-possession records and case notes can be subpoenaed. 

• Consider the student's safety

  • Counselors should consider the safety of the student and others when making decisions. For example, if a student poses a serious risk of harm, counselors should inform the school administration and appropriate authorities. 

  • Counselors should collaborate with the school administration to ensure the student has the proper support and supervision. 

• Document discussions

  • Counselors should document discussions with clients about information that may not be protected from release. They should also obtain signed statements from clients that they understand these exceptions to confidentiality.

“Psychologists have numerous ethical, professional and legal obligations related to the release of client records, test data and other information in the legal context. Many of these obligations may favor disclosure, including, in particular, the general obligation of all citizens to give truthful and complete testimony when required to do so. But there are often conflicting duties and principles that favor withholding such information.”  (APA, 2016) 

In regards to maintaining client confidentiality when called to testify, this is a particularly sticky issue for mental health care providers and school counselors. 

Often professionals must balance the rights of the client, personal liability, and the liability of their employer while meeting their civic responsibilities. It will be especially challenging to know whom to rely on for advice without a firm understanding of the legal and ethical constraints of testifying.

I am anxious to complete my certification and lean into the recomendations of professional organizations such as the texas School Counselor Association and the American School Counselor Association. More so than an Educator Union rep, or the District Counsel, these organizations can provide school counselors with guideleines in providing services appropriately to protect the counselor and student from precarious stituations, more so than district counsel which will be biased towards district liability.

American Psychological Association. (2016, July 1). Protecting patient privacy when the court calls. Monitor on Psychology, 47(7). https://www.apa.org/monitor/2016/07-08/ce-corner

American School Counselor Association. (2022). ASCA Ethical Standards for School Counselors. https://www.schoolcounselor.org/getmedia/44f30280-ffe8-4b41-9ad8-f15909c3d164/EthicalStandards.pdf

DeCino, D., Ph. D., & Waalkes, P. L., Ph. D. (2018, October). Are you prepared for subpoena and court testimony? - American School Counselor Association (ASCA). https://www.schoolcounselor.org/Newsletters/December-2018/Are-You-Prepared-for-Subpoena-and-Court-Testimony?st=NJ#:~:text=Being%20subpoenaed%20and%20testifying%20in%20court%20can%20be%20an%20intense,Louis.

EDUCATION CODE CHAPTER 33. SERVICE PROGRAMS AND EXTRACURRICULAR ACTIVITIES. (n.d.). https://statutes.capitol.texas.gov/Docs/ED/htm/ED.33.htm

Ethics - Texas Counseling Association. (n.d.). https://www.txca.org/ethics.php

Family Educational Rights and Privacy Act (FERPA). (n.d.). U.S. Department of Education. https://www.ed.gov/laws-and-policy/ferpa

Health Insurance Portability and Accountability Act of 1996 (HIPAA). (2024, September 10). Public Health Law. https://www.cdc.gov/phlp/php/resources/health-insurance-portability-and-accountability-act-of-1996-hipaa.html#:~:text=The%20Health%20Insurance%20Portability%20and,information%20cover%20the%20Privacy%20Rule.

TEXAS EDUCATION CODE CHAPTER 38. HEALTH AND SAFETY. (n.d.). https://statutes.capitol.texas.gov/Docs/ED/htm/ED.38.htm#38.254

Texas Rules of Evidence Rule 510. – Texas Rules of Evidence. (n.d.-a). https://www.texasevidence.com/rule-510-confidentiality-of-mental-health-information-in-civil-cases/

Texas State Board of Examiners of Professional Counselors – Texas Behavioral Health Executive Council. (n.d.). https://bhec.texas.gov/texas-state-board-of-examiners-of-professional-counselors/#:~:text=Welcome%20to%20the%20home%20page,Licensed%20Professional%20Counselors%20in%20Texas.

US Department of Education (ED). (n.d.). Family Educational Rights and Privacy Act (FERPA). https://www2.ed.gov/policy/gen/guid/fpco/ferpa/index.html