Confidentiality vs. Protection

Q. I have been involved in a difficult situation, and I am not sure how to proceed. One of my elementary school students was turned into Child Protective Services as a sexual perpetrator last year. CPS has been involved with this child since that report. The mother of another one of my students, who is autistic, has recently decided to allow her son to learn how walk home from school with the aid of a peer. The peer, a next-door neighbor, happens to be the sexual perpetrator child. I am concerned about the safety of the autistic child; however, when I told the administrator of my concern, he said it wasn’t our problem since the walking home is technically off school property. Ignoring this potentially risky situation doesn’t seem like the correct course of action. Do you have any suggestions on what I should do?

A. Certainly this situation involves several ethical and legal issues. While the first mentioned child, “Charlie,” certainly has the right to have his confidentiality defended, the autistic child, “Sam,” also has the right to be protected. This ethical conundrum begs these questions: What is appropriate and ethical to disclose to the autistic child’s parents? How can you help keep Sam safe? Can your provide that safety without disclosing confidential information about another student? Is your primary focus to warn Sam or to defend Charlie’s confidentiality? What is the school’s responsibility outside the school setting?

Obviously the ethical standards are guidelines and cannot predict all variances of what might occur in a counseling situation. However, using these guidelines in trying to tease out all the legal and ethical issues concerning this case forces appropriate ethical decision making to the forefront. Suggested steps for ethical decision making from “Counseling Ethics and Decision Making” include: identify the primary client, identify the ethical issues or dilemma, consult the necessary codes and experts and think carefully before acting.

You must evaluate the double bind in this scenario. Since there may be a perceived threat to Sam, the debate on what constitutes clear and imminent danger continues. If you don’t disclose the potential risk to Sam, you may be considered negligent. On the other hand, disclosing Charlie’s current involvement with CPS to another parent is a breach of confidentiality.

Step 1: Identify the primary client. Ethically all the students within the school are your primary obligation. In this case, both students are considered clients; therefore, you must factor both their needs into your decision making process. ACA Ethical Standards A.7 states that a school counselor involved in multiple client situations must clarify the nature of the relationship of each client and must adjust or withdrawal from the role if a conflict in this role becomes apparent.

Given the potential of Sam being victimized by Charlie, he may be the most vulnerable. Be sure you discuss with both sets of parents the boundaries of what type of information you can provide, confidentiality issues and what services you can provide.

Step 2: Identify the ethical issues or dilemma: To identify all the ethical issues, you’ll need to consider student safety, confidentiality, duty to warn and protect and administrative concerns. Section A.2.b of ASCA’s Ethical Standards indicates that the school counselor “Keeps information confidential unless disclosure is required to prevent clear and imminent danger to the student or others.” Although in this case potential danger is possible, it is not necessarily imminent danger. Another caution to consider is the capacity and competence of each of the students. You must factor in these concerns as your ethical decision making process evolves.

Step 3: Consult the necessary codes and experts. In making an ethical decision it’s important to consult with more than one knowledgeable individual. In this scenario, you’ve already consulted with your administrator, who said this wasn’t’ a school issue. This advice does not seem to fit the personal and moral ethics of the school counselor involved, thus, the need for further consultation and application of the five moral priniciples: autonomy, beneficence, nonmaleficence, justice and fairness.

There is some precedence in the courts that indicate this administrator’s suggestion is not a viable option. In 1990, an appellant court in Minnesota argued that such actions of nondisclosure could be considered negligent. The courts in this state, as in other states, also consider official immunity, meaning that if the school personnel were acting in good faith they can make those discretionary decisions. Regardless of what decision you make, it would be prudent to document why you made the decision you did and how the decision making process occurred.

Another consultation that might be helpful in this case would be with CPS, which should be able to advise you regarding confidentiality and may also be able to help with suggestions on effective responses. In researching this scenario, I contacted experts at the state Department of Victim Advocacy. They, too, had to consult with others before responding to this case, as this scenario offers an array of legal and ethical considerations. They concluded that it would be best to contact the school lawyer on this issue.

Depending on Charlie’s age, he might be listed in the sex crimes registry. If Charlie has been convicted, the public can access that information and the court case. If Charlie has been through the courts, he may well be on probation or have some type of legal consequence, which may exempt him from accepting this caretaking role, which would be a violation of his court mandated restrictions. If Charlie has not been adjudicated and is still under investigation the circumstances and case are considered confidential.

Step 4: Think carefully before acting. Carefully consider your actions in this case before making a move. However, the protection of Sam, as a potential victim, is the main focus. Consider having a preventive conversation with Sam’s mother and Sam to discuss personal safety. Teaching Sam and his mother about “good touch, bad touch” may be a proactive way of protecting Sam without disclosing information about Charlie. This action might also help Sam in future life experiences while also alerting the mother to some necessary precautions. Without disclosing too much information and with due care, you can caution the mother on her selection of support systems for her child.

Also consider having a discussion with Charlie’s parents prior to any disclosure. It might be helpful and a fair response to alert them to any pending action so Charlie isn't placed in a position of violating his legal consequences. Charlie’s parents may want to know ways to handle this type of situation in the future.

Disclosing Charlie’s prior sexual predatory behaviors needs to be done with due care depending on the state of the charges against him and the level of legal action and consequences. While it seems this scenario meets the three criteria for the duty to warn, it’s important to consider all information from those with whom you’ve consulted.

Assimilating all the consultation information you’ve received, including your consultation with the school lawyer. Document the steps you took to reach your decision, who you consulted and what recommendations they made based. This article offers only a few of the ethical and legal considerations you need to be make in this case. The suggestions offered are not necessarily a comprehensive response to all the factors but serve only as a sounding board and brainstorming method of consultation as well. The welfare of the students with whom we work, as professional school counselors, requires our legal and ethical professional diligence. We are sometimes their only line of protection or defense.

Rhonda Williams, Ed.D., LPC, NCC, is an assistant professor at the University of Colorado at Colorado Springs and the chair of ASCA’s Ethics Committee. She can be reached atrwilliam@uccs.edu.

To submit your questions for a future column, e-mail them to ethics@schoolcounselor.org.