Disclosure of Student Counselling Records

View a case study regarding ownership of student counselling records.

Due to the sensitive nature of counselling records and the need for students to have confidence in school counsellors, appropriate care must be taken prior to allowing access to or disclosure of such records.

Counsellors should not guarantee that confidentiality will always be possible. What a counsellor can tell a student is that the counsellor and the board will not allow the information to be released unless they are compelled by law to do so.

Preserving the trust necessary for an effective counselling relationship is crucial. Legal advice should be sought before agreeing to release counselling notes to anyone.

If the health or safety of the student or others is threatened safety concerns will outweigh privacy issues then information can be disclosed.

Informing Parents When Students Receive Counselling Services

The requirement to keep parents informed about the educational progress of their children would usually include advising parents when a child is receiving counselling services. In most cases the information will better enable the parent to help the child.

There are circumstances where telling parents a student is seeing a counsellor would be an unreasonable invasion of the privacy of the student. For example, a student might not discuss matters freely knowing parents will be informed, which may result in the student not getting the help he or she needs.

Board policy should reflect the privacy interests of the student, in balance with the need for parents to be kept informed about their children.

In some cases, a student might request that his or her parents not be informed that the student is receiving counselling. If the student is of sufficient maturity and understands the nature of the subject matter he or she is requiring counselling for and the implications of not telling parents, then such a request can be honoured.

Similar issues have arisen in the area of a child’s ability to consent to medical treatment without parental consent. The courts will focus on the maturity of the student and the student’s understanding of the situation, including the pros and cons of the treatment. Generally this kind of maturity starts to develop at ages 12 or 13. By age 14 or 15 most children will be considered able to give consent in a variety of situations and by age 16 or 17 the child is almost always considered capable of making such decisions. If a student is 18 years of age or older they are an adult and can refuse to allow information to be passed to their parents.

Other factors such as the seriousness of the situation, other help being available to the child and the school’s knowledge of the student’s background and history will also play a part in deciding whether or not to agree not to inform parents.

Board Employee Use of Counselling File and Counsellor’s Notes

There may be instances where a counsellor may need to share information with teachers, the principal or other professionals. This would be a consistent use allowed under section 27 of LAFOIP.

The privacy interests of the student must be kept in mind and minimal information should be shared for the provision of appropriate services to the student.

Student Access to Counselling File and Counsellor’s Notes

Access to counselling information is dealt with in the same way as any other request. Because it is personal information of the student, the primary assumption is that the student is allowed access.

However, depending on the maturity of the student and the type of information in the record, the most likely section that will apply to restrict a student’s access to his or her own record would be section 20 of LAFOIP . This section allows the head to refuse disclosure on the basis the release of the information would harm the student. Given the nature of the counselling relationship this argument might apply in some situations.

Parent Access to Counselling File and Counsellor’s Notes

Section 49(d) of LAFOIP provides that if a student is less than 18 years of age the parent or guardian can access personal information only when it would not “constitute an unreasonable invasion of the privacy of the individual.”

Due to the nature of counselling it is much more likely that the disclosure of this type of information to parents will be considered an unreasonable invasion of privacy. Factors such as the maturity of the student, age, nature of information, family relationships and other assistance provided are some of the factors that will need to be considered.

Disclosure of Counselling File and Counsellor’s Notes to the Court

Courts have been reluctant to require counselling notes to be disclosed, even to parents, or even if a subpoena is served. The nature of the trust relationship between counsellor and student is recognized as one that is very important and that should be protected. The interests of the party wanting disclosure must be shown to outweigh the privacy interests of the student before the notes will be released.

View a case regarding the disclosure of student counselling records: Children’s Aid Society of Ottawa v. N.S., 2005 CanLII 7661 (ON SC).