Before leaving the topic of mental health services and instruction, a few words are in order about some fundamental legal and ethical considerations.

Consent and Due Process

There was a time not so long ago when assessing students with problems and assigning them to special programs was done matter-of-factly. Most professionals believed they knew who needed help and what help was needed. It was a relatively simple matter to inform those involved that a problem existed and what was to be done. Growing awareness of rights and of the potentially harmful effects of treatment led to safeguards. Currently, consent is not taken for granted.

Parent organizations and child advocates have insisted that parents be involved in any decision that might have a profound effect on the course of a child's life. This fact is reflected in the "procedural safeguards" enacted into federal law. These safeguards are rooted in the legal concept of due process as established in the Fourteenth Amendment to the federal constitution.

Due process protects people's rights; procedural safeguards are meant to help guarantee that everyone is treated fairly. They are meant to ensure that parents are involved in decisions regarding testing and placement of their child. That is, such interventions are not supposed to take place without parental consent.

Some of the safeguards spelled out in law are:

1. Parents must be notified whenever the school plans to conduct a special evaluation of their child.

2. Parents have the right to refuse consent for such an evaluation. (However, the school district has the right to a legal hearing to prove it is needed. Should parents want a special evaluation and the school refuses to provide it, parents can seek a legal hearing.)

3. Parents have the right to

• review the procedures and instruments to be used in any evaluation
• be informed of the results and review all records
• obtain an independent educational evaluation to be considered in any decisions.

4. Parents must be notified whenever the school wants to change their child's educational placement, and they have the right to refuse consent for such a change. (Again, the school district can ask for a legal hearing to overrule the parents' decision. And, parents who are unable to convince the school to provide the special placement they want can also seek such a hearing.)

All notifications and explanations are to be given in the parents' primary language or other primary mode of communication.

What basic information should be communicated and understood? It is important to clarify the purpose of all intervention activity (why the person is there; what the person will be doing), describe risks and benefits, spell out alternatives, assure the individual that participation is not required, and elicit and answer all questions.

To make sure information is understood, it may need to be presented in a variety of ways. Repeated verbal or written communications, translations, media presentations, question-and-answer follow-ups to evaluate how information was understood, feedback obtained from other consumers -- all may be relevant at various times.

The emphasis on information, and the very term informed consent, may sometimes lead to greater emphasis on giving information than on ensuring true consent. Consent is a legal concept that has three major aspects: capacity, information, and voluntariness.

All three elements are of equal importance. These elements can be captured by three questions: Does the person have the ability to consent? adequate information to do so knowledgeably? the freedom to decline?

Older students often want or need access to services without their parents knowing and with confidentiality protected. When can students seek assistance without parent involvement?

Where the laws allows, licensed professionals can offer some sensitive services without parent consent. School-based health centers allow for open access once parents have signed an initial consent form that allows the student to use designated services.

In many instances, however, students are not in a position or motivated to follow-through with a referral -- even though their problems may be severe. Thus, more often than not, parent involvement is needed to facilitate follow-through. For example, students may need parents to pay fees and for transportation. If a student is not an emancipate minor, the referral resource will probably require parental consent.

When parent involvement is indicated, the referral intervention includes efforts to help students understand the benefits of such involvement and encourage them to discuss the matter with their parents. School staff can play a major role in facilitating and perhaps mediating a student-parent discussion for students who see the need but are fearful of approaching their parents without support.

What if a student is determined not to involve parents? Except when inaction would place the student or others in extreme danger, some school staff prefer to honor a student's desire to maintain confidentiality. In such instances, the only course of action open is to offer whatever referral follow-up support the school can provide. Some staff, however, believe it is essential for parents to take responsibility for student follow-through. Thus, parents are given referral information, asked to see that the student makes contact, and any needed follow-through support is directed at the parents.

Confidentiality

Typical Dilemma: Matt told me in confidence that he is planning a
wild weekend with his friends. Given his history of substance abuse
and what I know about the friends he mentioned, I'm worried that
things will get out of control. Should I warn his parents?

Confidentiality is an ethical concern. The fundamental intent is to protect a student's/family's right to privacy by ensuring that matters disclosed are not relayed to others without informed consent. By ensuring confidentiality, professionals also hope to encourage communication.

Neither privacy nor confidentiality, however, are absolute rights, especially in the case of minors. There are fundamental exceptions, some involving ethical considerations and some involving legalities.

There are times when professionals would prefer to maintain confidences but cannot do so legally or ethically. Examples include instances when individuals being seen indicates an intention to harm themselves or someone else and when they have been abused. As a result of legislation, litigation, and ethical deliberations, professional guidelines call on interveners to breach the confidence and tell appropriate public authorities when there is a clear danger to the person or to others. Undoubtedly, breaking confidentiality in any case can interfere with the trust between you and a student and make it difficult to help. Prevailing standards, however, stress that this concern is outweighed by your responsibility to prevent various threats.

In this vein, but perhaps going a step further, the ethical guidelines for school counselors call for reporting instances when information provided by clients indicates circumstances likely to have a negative effect on others; that is, without revealing the identity of the client, the counselor is expected to report such circumstances "to the appropriate responsible authority." However, it is left to individual counselors to decide which circumstances are "likely" and what constitutes a "negative effect" that is serious enough to require reporting. One result of all this is to make the processes of ensuring privacy and building trust almost paradoxical.

What are the primary reasons for ensuring the confidentiality of information about children and families.

Soler and Peters (1993) stress:

The fundamental right "to be let alone" is at the root of confidentiality protections. Confidentiality restrictions protect the privacy of individuals and insure that personal information is disclosed only when necessary. The reasons for respecting the privacy of children and families include the following:

a. Confidentiality restrictions protect embarrassing personal information from disclosure. This may include histories of emotional instability, marital conflicts, medical problems, physical or sexual abuse, alcoholism, drug use, limited education, or erratic employment.

b. Confidentiality provisions prevent improper dissemination of information about children and families that might increase the likelihood of discrimination or harm against them even if records show that the information is unproven or inaccurate. Such information includes HIV status, mental health history, use of illegal drugs or child abuse charges.

c. Protecting confidential information can be necessary to protect personal security. For instance, an abused woman in a domestic violence situation may be in great danger if law enforcers reveal her new location.

d. Confidentiality provisions also protect family security. For example, many immigrant families shy away from using public health clinics or other social services for that the Immigration and Naturalization Service (INS) will take action against them.

e. Restricting information disclosure may also protect job security. Information such as history of mental health treatment may bear no relation to job performance but could jeopardize the individual's position or ability to find employment.

f. Children and families want to avoid prejudice or differential treatment by people such as teachers, school administrators, and service providers.

g. Confidentiality provisions also may be necessary to encourage individuals to make use of services designed to help them. Adolescents may avoid seeking mental health services at a school-based clinic, for example, if they believe that information will get back to their teachers, parents or peers.

(From Who should know what? Confidentiality and information sharing in service integration published by the National Center for Service Integration).

States vary in the degree to which their laws specify limitations on privileged communication between counseling professionals and minor clients. Some protect only disclosures about problems related to alcohol and other drugs. Others give broad protection, specifying a few exceptions such as reporting child abuse and crime or potential criminal activity.

In order to adequately inform minors of exceptions to the promise of privacy, you can add a statement, such as

Although most of what we talk about is private, there are three kinds of problems you might tell me about that we would have to talk about with other people. If I find out that someone has been seriously hurting or abusing you, I would have to tell the authorities about it. If you tell me you have made plan to seriously hurt yourself, I would have to let your parents know. If you tell me you have made a plan to seriously hurt someone else, I would have to warn that person. I would not be able to keep these problems just between you and me because the law says I can't. Do you understand that it's OK to talk about most things here but that these are three things we must talk about with other people?

Because youngsters may feel a bit overwhelmed about the exceptions to privacy and the serious problems described, they may simply nod their acquiescence or indicate that they are unsure about how to respond. To soften the impact, you may want to add statements, such as

Fortunately, most of what we talk over is private. If you want to talk about any of the three problems that must be shared with others, we'll also talk about the best way for us to talk about the problem with others. I want to be sure I'm doing the best I can to help you.

There will be times when you find it in the best interest of a student for others to know something that he or she has disclosed. Most ethical guidelines on confidentiality recognize this. In doing so, guidelines stress that such sharing should occur "only with persons clearly concerned with the case." Given that teachers and parents are clearly connected and see themselves as also working in a student's best interests, some interveners feel it appropriate -- even essential -- to discuss information with them. In other words, there are times when keeping a specific confidence shared by a student works against the youngster's best interests. At such times, you may decide that the costs of not communicating the information to others outweighs the potential benefits of maintaining privacy. Obviously, the first step in such situations is to talk with the student and try to elicit consent for sharing. If you decide you must proceed without consent, you will want to inform the student of why you will be doing so and work to repair any damage to your relationship.

Note: For more on this topic, you may want to request the introductory packet on Confidentiality and Informed Consent from the Center for Mental Health at UCLA.