5.4 Confidentiality, Privileged Communication, and the Duty to Warn
Key Takeaways
Confidentiality is an ethical duty; privileged communication is a legal protection, created by statute, that shields counseling communications from compelled disclosure in legal proceedings.
The client holds the privilege; for minors it is often exercised by parents/guardians, and whether school counselors have privilege varies by state.
Tarasoff v. Regents (1976) held that a therapist must use reasonable care to protect an identifiable victim from a client's serious threat of violence.
ASCA Standard A.9.e requires reporting a student's threat against another person to administration and appropriate authorities, following law and district policy.
A subpoena does not by itself authorize disclosure; counselors consult supervisors and legal counsel and may ask the court to protect information (A.2.i).
5.4 Confidentiality, Privileged Communication, and the Duty to Warn
Quick Summary: Confidentiality is an ethical duty, privacy is a legal right to control information about oneself, and privileged communication is a legal protection created by statute. The duty to warn or protect (from Tarasoff) and ASCA's duty to act on serious and foreseeable harm (Standard A.9) define when a counselor must disclose. The ETS topics ask you to understand the duty to warn and the difference between privileged communication and confidentiality.
Three Related Terms
| Term | Source | Who "Owns" It | School Example |
|---|---|---|---|
| Confidentiality | Professional ethics (ASCA A.2) | The counselor's obligation | The counselor does not repeat a student's disclosure about family conflict to teachers |
| Privacy | Constitutional and statutory rights (for example, FERPA and PPRA) | The individual | A parent's FERPA right to control disclosure of education records |
| Privileged communication | State or federal statute (a rule of evidence) | The client (the "holder"); for minors, often the parent/guardian | A statute that protects what a student told the counselor from being compelled in court |
Key distinction: Confidentiality is an ethical promise that governs everyday conduct. Privileged communication is a legal term for a statute that protects communications in a counseling relationship from compelled disclosure in legal proceedings. Privilege exists only where a law creates it—some states extend it to school counselors, many do not, and statutes differ in scope. The client holds the privilege and can waive it; the counselor asserts it on the client's behalf.
Limits of Confidentiality in Schools
Confidentiality with minors is narrower than with adults because parents/guardians have legal rights and schools have safety duties. ASCA A.2.g says counselors' primary obligation for confidentiality is to students, balanced with parents'/guardians' "legal and inherent rights to be the guiding voice in their children's lives."
Common exceptions:
- Serious and foreseeable harm to self or others (A.9): notify parents/guardians and administration, even if the danger appears relatively remote.
- Suspected abuse or neglect (A.12 and state law): report on reasonable suspicion.
- Court orders: compelled disclosure; counselors may ask the court not to require disclosure when it could harm the student or the counseling relationship (A.2.i).
- Consent: the student (or the parent, for records) authorizes release.
- Consultation: sharing with professionals who have a legitimate need to know, with highly sensitive information conveyed in person or by phone rather than email (A.2.l).
- Groups: confidentiality among members cannot be guaranteed (A.7.h).
"Serious and foreseeable harm" depends on the student's developmental and chronological age, the setting, parental rights, and the nature of the harm (A.2.f). When in doubt, counselors consult.
Informed Consent and Assent
Informed consent requires competence, voluntariness, and knowledge; younger students may be able to give only assent (agreement). ASCA A.2.b–e directs counselors to explain the purposes, goals, techniques, and limits of confidentiality in developmentally appropriate terms through several channels—handbooks, classroom lessons, websites, and individual conversations.
Subpoenas and Court Orders
- A subpoena is issued by an attorney or court clerk and can often be challenged; by itself it does not authorize releasing confidential information. Counselors notify their supervisor and district legal counsel.
- A court order signed by a judge compels disclosure. FERPA permits releasing education records to comply with a lawfully issued subpoena or judicial order after a reasonable effort to notify the parent (with narrow exceptions).
- ASCA A.2.i: when testimony or case notes are subpoenaed, counselors ask the court not to require disclosure if release could harm the student or the counseling relationship.
The Duty to Warn and Protect
Tarasoff v. Regents of the University of California (California Supreme Court, 1974 and 1976) held that a therapist whose client presents a serious danger of violence to an identifiable victim must use reasonable care to protect that person—"The protective privilege ends where the public peril begins." After Tarasoff, states adopted different rules:
| State Approach | Meaning |
|---|---|
| Mandatory duty | The clinician must warn or protect when statutory criteria are met (typically a serious threat and an identifiable victim) |
| Permissive | The clinician may disclose without liability but is not required to |
| No statute or unclear | Left to case law and professional judgment |
For school counselors, ASCA simplifies the decision: A.9.e requires reporting to administration and/or appropriate authorities (such as law enforcement) when a student discloses a perpetrated or perceived threat to another person's physical or mental well-being, following federal and state law and district policy. Schools also use behavioral threat assessment teams (see 10.2).
Harm to Self: The Duty to Notify Parents
The duty to warn concerns threats to others. For risk to self, Eisel v. Board of Education (Md. 1991) and ASCA A.9 require notifying parents/guardians—even when the student denies the risk or the danger seems remote (see 10.1).
A Decision Sequence
- Identify the type of information: harm to self, harm to others, suspected abuse, a record request, or a general personal concern.
- Check the ASCA standards, state law, and district policy.
- Consult a supervisor or experienced colleague.
- When appropriate, involve the student in how and when the disclosure happens, using the least intrusive method (A.2.h).
- Document what was disclosed, to whom, and why.
Praxis Application
Scenario: During a session, a high school junior says that if a classmate posts an embarrassing video again, "I'll make sure he never walks again," and names the classmate and when he plans to confront him.
Analysis: This is a specific threat against an identifiable person. The counselor breaks confidentiality: informs administration and follows the district's threat-assessment and law-enforcement protocol (A.9.e), notifies the student's parents/guardians, and takes steps to protect the classmate under the state's duty-to-warn law.
Which statement best distinguishes privileged communication from confidentiality?
Confidentiality is created by state statute, while privileged communication is an ethical guideline from ASCA.
Privileged communication belongs to the counselor, who can waive it whenever disclosure seems helpful.
Privileged communication is a legal protection created by statute that shields counseling communications from compelled disclosure, while confidentiality is the counselor's ethical duty not to share information.
Confidentiality applies only to adults, while privileged communication applies only to minors.
A counselor receives an attorney-issued subpoena requesting all records of counseling sessions with a student whose parents are in a custody dispute. What is the most appropriate first step?
Send all counseling notes to the attorney immediately, because subpoenas must be obeyed without question
Notify the supervisor and consult the district's legal counsel before releasing anything, and ask the court to protect the information if release could harm the student
Destroy the sole-possession notes so they cannot be produced
Ignore the subpoena because school counselors have absolute privilege in every state
Under the ASCA Ethical Standards, what should a school counselor do when a student discloses a specific plan to seriously injure a named classmate?
Keep the disclosure confidential unless the student repeats the threat in a second session
Ask the student to sign an agreement promising not to hurt the classmate and take no further action
Warn the classmate privately but tell no administrator, to protect the student's confidentiality
Report the threat to administration and appropriate authorities under law and district policy, and take steps to protect the identified student
Sections you finish are checked off in the contents.