Page 30 - OSCA Ethical Guidelines - 2009.pdf

Counsellors and the Law
A brochure published by the Freedom of Information and Privacy Branch, Management Board of Cabinet summarized the purposes of the Provincial Act in the following manner:
“The Act has two main objectives. First, it provides all persons with a legal right of access to information contained in the records of government ministries, agencies, boards, commissions and corporations. Secondly, it sets out the standards for privacy protection that must be met by all
of these institutions when they collect, use and disclose information of a personal nature on individuals.
The Act consequently provides a balance between allowing the widest possible access to government information and respecting the right of each individual to personal privacy.”
The government officials responsible for accommodating the Act to such sectors as District Boards of Education are aware that considerable care must be taken especially regarding such information as that contained in the Ontario Student Record System. Counsellors may seek clarifications from their District School Board’s Freedom of Information Coordinator.
V Municipal Freedom of Information and
Protection of Privacy Act, R.S.O. 1990
On January 1, 1991, the Freedom of Information and Protection of Privacy principles are extended by the Municipal Freedom
of Information and Protection of Privacy Act, 1989 to a group
of about 3,000 institutions including: municipal corporations, district school boards, public utilities commissions, hydro- electric commissions, transit commissions, police commissions, conservation authorities, boards of health and other local boards.
This act is based on the principles found in the Freedom of Information Act, 1987. First, information held by an institution covered should, in general, be available to the public. Second, any exception from the right of access to information should be limited to specific specifications. Third, decisions relating to access to information should be reviewed by the independent Information and Privacy Commissioner.
Another important principle is that personal information held by institutions should be protected from unauthorized disclosure. To give effect to this principle, the act has a number of provisions dealing with the collection, use and disclosure of personal information.
Counsellors may seek clarification from their District School Board’s Freedom of Information Co-ordinator.
PIM (Privacy and Information Management)
Taskforce
The PIM Taskforce toolkit provides practical suggestions with respect to records maintenance and privacy issues. It makes reference to portions of applicable legislation including the Municipal Freedom of Information and Privacy Act (MFIPPA), R.S.O. 1990, c.M.56; Personal Health Information Protection Act (PHIPA), S.O. 2004, c.3, Sched. A; and Education
Act, R.S.O. 1990, c.E.2. The information contained in this document is for general reference purposes and should not be
construed as legal advice. You should consult with your own legal counsel for the purposes of interpretation.
To ensure that it supports all Ontario school boards and authorities, the toolkit has been developed around five guiding principles:
• Aligned with the provision of programs and services to students;
• Inclusive across the school board/authority and for all school boards/authorities (small and large, English and French, public and Catholic);
• Written in plain language, avoiding jargon/acronyms;
• Relevant to school boards/authorities (meaningful, practical and scalable);
• Ethically and legally relevant.
Of particular interest to counselors are the following topics:
30 ■ OSCA Ethical Guidelines for Ontario School Counsellors 2010 • www.osca.ca
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Information sharing between secondary schools and feeder schools
Guidelines for securing mobile devices Working outside of the office or school
School board/authority website guidelines Maintenance of Records (records versus non-records) Privacy breach protocol
VI Glossary of Legal Terms
This section should familiarize counsellors with the legal jargon that may be encountered in their work. The explanations are not legal definitions but are intended to be interpretations acceptable for the counsellor’s use. Only qualified lawyers could assess the applicability of a particular concept to a given situation.
See also, Justice for Children and Youth, http://www.jfcy.org.
Confidential Communication
The ethical decision by a counsellor that he should not divulge what has been revealed to him in his contact with a counsellee.
Privileged Communication
Utterances made in connection with official duties against which no legal action can be taken. Privileged Communication refers to the right of the client of professional persons to prevent these persons from revealing in legal proceedings any information given in confidence as a result of the professional relationship.
Absolute Privilege
All communications of judges while on the bench, of legislators in the house, and of witnesses under oath, are accorded absolute privilege. Lawyers may not divulge information, incriminating or otherwise, as testimony or at the behest of government or legal officials.
Qualified Privileged Communications
Ministers and doctors in Ontario are usually considered to have privileged communication. If a counsellor were required to testify it is very doubtful that he would be allowed privileged communication. The rules are not hard and fast. The judge would decide in an individual case. By way of comparison, communication in many jurisdictions in the United States even if defamatory may be privileged if the following conditions are met: