Avoiding Liability Bulletin – February 2011
… The laws dealing with school counseling and confidentiality in California are now being examined by the Office of the Attorney General, which is expected to write an Opinion this year regarding an interesting question that has been asked by Senator Mark Wyland. The question was as follows: Is a school counselor required to disclose a student’s pregnancy to the student’s parents if the counselor believes that disclosure is necessary to prevent harm to the student? Also asked was whether a school district and counselor can be held liable for failure to make disclosure to parents of such pregnancy-related or abortion-related information when the student suffers harm that could have been averted by the parents.
While Opinions of the Attorney General do not constitute controlling legal authority regarding the interpretation of the law, they are entitled to great weight and respect by the courts. I fully expect that after the opinion is issued, there will be a need to amend the statute that will be interpreted in the opinion. The statute involved is found in the Education Code. It differs from the laws of confidentiality generally applicable to licensed mental health professionals who are treating children (outside of the school setting) with or without parental consent. It is a poorly drafted statute and it is not particularly protective of confidentiality. For example, it would allow a school counselor to report information to a principal or parent when the pupil indicates to the school counselor that a crime involving substantial property losses has occurred in the past. There are other problems with the statute, including the provision relevant to the opinion to be issued, which talks of a “clear and present danger to the health, safety, or welfare of the pupil.” Such language can be broadly interpreted to allow many disclosures. It is my educated guess that although the statute is worded poorly and can be interpreted as a mandate to disclose, the Attorney General will opine that the school counselor is not required to make a disclosure to the parents. The Attorney General’s Office will likely analyze how such a matter would be handled in a private practice situation, where the minor is being treated with and without parental consent. The California statute to be interpreted is found in Section 49602(c) of the Education Code.
ABOUT THE AUTHOR
Richard Leslie
"At the Intersection of Law and Psychotherapy"
Richard S. Leslie is an attorney who has practiced at the intersection of law and psychotherapy for the past twenty-five years. Most recently, he was a consultant to the American Association for Marriage and Family Therapy (AAMFT), where he worked with their various state divisions to develop and implement their legislative agendas. He also provided telephone consultation services to AAMFT members regarding legal and ethical issues confronting practitioners of diverse licensure nationwide. Additionally, he wrote articles regarding legal and ethical issues for their Family Therapy Magazine and presented at workshops on a variety of legal issues.
Prior to his work with AAMFT, Richard was Legal Counsel to the California Association of Marriage and Family Therapists (CAMFT) for approximately twenty-two years. He was director of Government Relations for CAMFT, and as such was the architect of CAMFT’s widely regarded and successful legislative agenda. He represented CAMFT before the regulatory board (the Board of Behavioral Sciences) and was a tireless advocate for due process and fairness for licensees and applicants. He was a regular presenter at workshops and was consistently evaluated as CAMFT’s most highly rated presenter. He also sat with the CAMFT Ethics Committee and acted as their advisor on matters pertaining to the enforcement of ethical standards.
Richard is an acknowledged expert on matters pertaining to the interrelationship between law and the practice of marriage and family therapy and psychotherapy. For many years, he taught Law and Ethics courses for a number of colleges and universities in their marriage and family therapy degree programs. While at CAMFT, he provided telephone consultation services with thousands of therapists in California and elsewhere for over twenty years. He is highly regarded for his judgment, his expertise, his direct style, and his clarity.
Richard has been the driving force for many of the changes and additions to the laws of the State of California that affect MFTs. In 1980, he was primarily responsible for achieving passage of the "Freedom of Choice Law" that required insurance companies to pay for psychotherapy services performed by MFTs. Passage of that law allowed MFTs to earn a living, allowed them to better compete in the marketplace, and strengthened the profession in California by leading to a great increase in the number of licensees and CAMFT membership. Currently, about half of the licensed marriage and family therapists in the country are licensed in California.
While at CAMFT, Richard was primarily responsible for, among other things, the successful effort to criminalize sex between a patient and a therapist. He was successful in extending the laws of psychotherapist-patient privilege to MFTs, thereby giving patients the same level of privacy protection as when seeing a psychiatrist or psychologist. He fought tirelessly and successfully for the right of MFTs to refer to themselves as "psychotherapists," to perform psychological testing services, to be appropriately reimbursed by California’s Victims of Crime Program, and to be employed in county mental health agencies throughout California.
Richard was admitted to the Bar in New York (1969) and in California (1973). While practicing in New York, he served as a public defender, and later, as an Assistant District Attorney. Shortly after moving to California, he worked for the San Diego County Human Relations Commission as their Law and Justice Officer. While there, he worked successfully to achieve greater racial diversity in the criminal jury selection system and to expose and stop police abuse. For such work with that agency, he was the recipient of the Civil Libertarian of the Year Award by the San Diego Chapter of the American Civil Liberties Union.
