Counselling Service policy - Response to external agencies who request confidential information

Background

Although infrequent, counsellors may receive requests for information from external agencies. Possibilities include:

  • solicitors acting on behalf of counselling clients or ex-clients
  • the Criminal Injuries Compensation Board (CICB), which may be involved when clients or ex-clients are claiming damages etc.
  • the police investigating a criminal matter
  • courts of law.

Clients or ex-clients may also ask their counsellor to release confidential information to such agencies.

Usually what is sought is material that can be used as ‘evidence’ to show that a client's health, well being, and/or academic progress has been affected (e.g. by a trauma or abuse). Such evidence may be ostensibly in the client's favour, e.g. when a client is claiming compensation. Alternatively, in rare cases, it may be sought as evidence unfavourable to the client, e.g. to reduce their credibility.

The information may be sought in various ways. Counsellors may be asked to:

  • write statements concerning attendance at counselling
  • write reports about the client, such as the nature and extent of their difficulties, or write character testimonials
  • release counselling records
  • appear as witnesses, either voluntarily or by being subpoenaed.

A survey of counsellors (Jenkins, 2003) revealed that most requests for disclosure of clients‘ notes came from solicitors‘ letters, with or without signed consent by the client. Occasionally counsellors received court orders, or requests from the police or the Crown Prosecution Service to reveal records. The majority of requests concerned clients being involved in civil litigation, which is suing for damages. A sixth of the cases concerned criminal prosecutions. The Counselling Service therefore issues this policy and incorporated guidelines in case of such requests.

Reference: Jenkins, P. (2003) Disclosure of Case Notes. Counselling and Psychotherapy Journal. June, 2003.


Policy

There is no specific guidance from the University or the British Association for Counselling and Psychotherapy regarding responding to requests for confidential information by external agencies. Practice varies considerably between counsellors in other institutions - from non-engagement wherever possible, to a willingness to write a full report of counselling work and charge an appropriate fee. Therefore, the Counselling Service adopts its own policy.

The current policy will apply until further guidance is available:

Unless it is a legal requirement, members of the Counselling Service will not undertake to provide information to external parties such as solicitors, CICB representatives etc, even when such information is requested by a counselling client or ex-client.

This is made clear in the Counselling leaflet:

‘The Service does not provide letters or copies of notes in support of compensation claims or other legal matters. We recommend that you consult a private counsellor or psychotherapist for practical support with legal matters external to the University.’

If a client simply requests confirmation that they have attended counselling, a counsellor may agree to provide a record of attendance if s/he feels it would not be detrimental to the work. Written permission should be obtained from the client, and s/he should be alerted to the fact that even a simple statement such as 'the student attended one appointment' can be open to a number of interpretations.

Rationale for policy

Any decision to take action on behalf of a client (eg ‘medical certificate equivalent’ letters, talking to a tutor, confirmation of attendance) will have an impact on the counselling work and needs to be thought through carefully.

Counsellors are not legally obliged to release session notes unless a subpoena is issued, and even this may be contested. Counselling records may contain information that would be actively unhelpful to the client's case, as well as possibly containing material about other people, the counsellor's own responses etc. Once information is released, it is made available to ALL parties involved in a case. The client may be unaware of this, or loath to consider the possible consequences.

Some of these difficulties can be overcome if the counsellor produces a summary report of work with a client, but this is also fraught with difficulties:

  • Most counsellors are not well versed in legal matters; a statement issued in good faith might be subject to misinterpretation.
  • There may be pressure to make a diagnosis (eg ‘client was suffering from PTSD’) or a statement of fact (‘this affected the student's work’) – which could be challenged, potentially detrimentally to the client.
  • Preparing a report can be time-consuming, but accepting any fee offered for the work involves counsellors in a different sort of ‘contract’ with the client.
  • Counsellors employed by the University are in a different position to private therapists; their professional – but subjective – opinion may be taken to represent an official university viewpoint, which can in turn cause problems.
  • Disclosure – even with the client's consent – can have unexpected and unintended deleterious effects. For example, a client who has been raped may have revealed details about her relationship with her boyfriend. If such information was disclosed this could affect the relationship, cause embarrassment, and even – potentially – be used against the client.

The current policy attempts to reconcile the tension between maintaining boundaries and avoiding unnecessarily complicated transactions, on the one hand, and our aim to help and enable the client on the other.


Guidelines

The Counselling Service provides further guidelines to its counsellors on how to handle particular situations. An abbreviated version of these guidelines follows.

General points

If information about counselling is released to external agencies, especially to legal parties, there are dangers:

  • Material may be used in unexpected ways.
  • More material may be divulged than anticipated originally.
  • The emotional impact may be high, maybe exceeding original expectations.
  • Material may eventually be made available to ALL parties of a case, even when this is not expected at the start of proceedings.
  • A client may have talked about issues ‘peripheral’ to the case, e.g. difficulties in their study, their relationships with their parents or friends, drug abuse, or sexual issues. if these are felt to be relevant by the courts, they may be revealed.
  • The client may have unrealistic hopes or desires of which they are hardly aware. For example, a client who was abused may hope that the abuser will realise the distress they have caused. If this is the prime reason for revealing their notes, then the client may end up more distressed if the abuser shows no such concern. Such a motive can be originally perceived as a desire for ‘justice.’ Another example is that a client may believe the action is bound to result in a prosecution of another person – and it may not.

Some points about legal access to records:

  • If a court requests access to a counsellor's records, a standard police warrant is insufficient, except when police are searching for documents related to terrorism. For access to counselling records, a circuit judge must sign a search warrant, whereas a magistrate signs a standard warrant. Even with a judge's signature, the High Court has the power to over-rule the warrant and prevent disclosure.
  • Counselling notes and records can be required as evidence in court. However, the court might not opt for full disclosure in the open hearing. Instead, an expert may be asked to examine them outside of the hearing, and only relevant information be fed into the open court.

Guidance on particular situations

Request to disclose from a solicitor, without accompanying client consent

If there is no stated legal requirement to disclose the notes, such a request will nearly always be refused, as stated in the policy above. This will apply even for serious cases, e.g. if the client has acted criminally or been the victim of crime. If the counsellor originally decided not to disclose, a solicitor's letter without client consent should not alter the decision, unless there are very exceptional and compelling reasons to do so. In an exceptional case the counsellor might want to contact a client who has finished counselling, if this seems in their best interest. The purpose would be to inform the client, and talk through the solicitor's request.

Request to disclose from a solicitor, accompanied by client consent

The counsellor is likely to want to talk with the client. If the client is still in counselling, the counsellor may well wait until the next appointment. If the client has finished counselling, the counsellor may want to contact them, to suggest an appointment in order to discuss the request. The counsellor is still likely to refuse the request. The counsellor will refer both the client and the solicitor to the policy as stated above. As stated in that policy, the counsellor MAY write a simple letter confirming the client attended counselling appointments, but as even this can cause unforeseen complications, this too may be refused. The counsellor may suggest that the client contacts a doctor, or an outside agency, for a psychological assessment for the courts.

Request for disclosure from other legal authorities (e.g. the police), or Court Order to disclose

In the first instance, the counsellor will not comply immediately, but instead reply that s/he is seeking advice. The counsellor is still subject to confidentiality and ethical commitments to their client and will consider the implications of disclosure seriously. Under these circumstances the counsellor will inform their line manager, and follow ethical guidelines and the requirements of the University.

Being subpoenaed

If the counsellor is subpoenaed, they will inform their line manager as soon as possible. The counsellors are employees of the University, which has its own institutional policies and operations, and these will operate under these circumstances. Legal advice will be sought, especially because it may be possible to disclose particularly sensitive information to selected legal individuals rather than in open court or to withhold information irrelevant to the case.

Request for disclosure of notes under the Data Protection Act (DPA)

Clients themselves have a legal right under the DPA to have a copy of their notes, except under exceptional circumstances. It is possible that a client could request their notes themselves, in order to use them in legal proceedings. Under these circumstances, the counsellor would suggest meeting to talk this through. The client needs to be aware of the dangers they face in using the notes for legal or other cases. The counsellor will consult with their line manager and their Data Protection Advisor if there could be issues arising from revealing the notes.

Requests for counselling records if a client has died

If a student has died unexpectedly, for example by accident or suicide, there will normally be an inquest. In rare cases, a counsellor may be asked to provide counselling records, or they may be asked for a report for the Coroner's Court or other court proceedings. The counsellor would consider the balance between the ongoing contract of confidentiality with the client (which continues after death), and action in the ‘public interest.’

Information for the client's LEA

Students who need to take time out or repeat a term because of their personal difficulties may sometimes ask for a letter or summary statement to be sent to their LEA in order to claim additional funding. Since these requests relate only to the client's progress as a student, the counsellor may agree to supply information on behalf of a client who has been attending counselling, if the client gives permission to do so.

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