Tuesday, January 3, 2012
Attorney General Harris Opines:
School Counselor Need Not Tell Parent of Child’s Pregnancy
By KENNETH OFGANG, Staff Writer
A school counselor may inform a parent or principal that a student is pregnant or has had an abortion, in order to prevent a clear and present health or safety danger, but is not required to do so and cannot be held liable for not doing so, California Attorney General Kamala D. Harris has opined.
The attorney general Thursday released her opinion regarding Education Code Sec. 49602(c), which was requested by Sen. Mark Wyland, R-Carlsbad.
Sec. 49602 provides that when a student age 12 or older discloses “information of a personal nature” to a counselor, that information must be kept confidential, except under specified circumstances.
Exception to Confidentiality
Subdivision (c) creates an exception to confidentiality by allowing a counselor to disclose otherwise-confidential to a parent or principal “when the school counselor has reasonable cause to believe that disclosure is necessary to avert a clear and present danger to the health, safety or welfare of the pupil or the following other persons living in the school community: administrators, teachers, school staff, parents, pupils, and other school community members.”
The statute goes on to provide:
“No person required by this section to keep information discussed during counseling confidential shall incur any civil or criminal liability as a result of keeping that information confidential.”
Harris said the subdivision (c) exception should be read in context with other exceptions, the wording of which suggest that a counselor has discretion over whether, and when, to disclose.
Only one provision in the statute appears to mandate disclosure, stating that a “school counselor shall disclose” personal information to law enforcement under specified circumstances. If lawmakers wish to mandate disclosure in other circumstances, Harris suggested, “the Legislature knows how to” do so.
To interpret the statute as mandating disclosure may conflict with confidentiality rules for certain types of licensed professionals, who may also be school counselors, and would deprive the law of its “commonsense meaning,” the attorney general added.
“To read it as requiring school counselors to disclose confidential information in every case of perceived danger to a student would seriously undermine counselors’ ability to exercise their best judgment under the most difficult circumstances,” Harris wrote.
The attorney general acknowledged the argument that any disclosure of such sensitive information would violate the minor’s privacy rights under Am. Acad. of Pediatrics v. Lungren (1997) 16 Cal. 4th 307. The case held that the state constitutional right to privacy bars the Legislature from requiring minors to notify parents or obtain court approval prior to an abortion.
The disclosures permitted under Sec. 49602(c) differ, Harris reasoned, because they are less intrusive, in that they are not a barrier to a minor receiving any type of medical treatment.
The attorney general further concluded that because disclosures are discretionary under the statute, the failure to make them cannot constitute negligence per se.
The opinion is No. 08-509, and was prepared for Harris by Deputy Attorney General Marc J. Nolan.
Copyright 2012, Metropolitan News Company