Page 31 - OSCA Ethical Guidelines - 2009.pdf

1) the communication originates with the understanding that it will not be disclosed;
2) confidentiality must be maintained for continuance of the relationship between the parties;
3) confidentiality must be fostered with care and perseverance;
4) the harm to the relationships would be greater than the good incurred in the litigation.
Defamation
Communication tending to harm a person’s reputation so as to lower him in the estimation of the community or to deter people from associating with him. Statements must have been false and/ or made with malicious intent and must be made to a third party.
Hearsay
What some other person has said. Hearsay is not usually accepted as an indication of evidence of the existence of the fact. What a counsellee tells a counsellor would almost always be hearsay evidence.
Liability
A breach of what has been established as a legal duty. In addition to proving a breach of duty, a successful liability suit must show that damages have resulted.
Libel
Defamatory communication that is written.
Malpractice
A term used more often in the United States to describe any
professional misconduct or any unreasonable lack of skill or fidelity in the performance of professional or fiduciary duties. Since an Ontario school counsellor is not defined in law, malpractice would be difficult to assess.
Negligence
Failure to perform, or the unsatisfactory performance of a legal duty imposed by statute or common law.
A negligence action might be based on the unintentional breach of a legal duty causing damage reasonably foreseeable, without which breach the damage would not have occurred. The counsellor might be held negligent if he gave incorrect educational information.
Privacy
The right to live without unwarranted interference by the public about matters with which the public is not necessarily concerned. Invasion of privacy refers to the interruption of private communication.
Slander
Defamatory communication that is spoken.
Third Party
Any person not involved in the original dialogue.
Unethical Behaviour
Behaviour at variance with the moral precepts and ethical principles suggested by a professional organization. Ethical behaviour is not a matter of law.
Counsellors and the Law
Maintenance of Records
1. Counsellors must possess a thorough understanding of Ministry/District School Board policies with regard to the retention, storage, preservation and security of records. (Ontario Student Record Guideline)
2. Counsellors, when keeping notes or records, must ensure that they are stored in a manner that protects confidentiality and guarantees security.
3. Records collected during the counselling relationship may include: notes, assessment data, correspondence and other information gathered or received from other sources. All records possessed by counsellors must comply with the regulations outlined in the current OSR Guidelines and in the Freedom of Information and Privacy Protection Act.
4. Records document the specific nature of the contact and contain only information that is relevant and useful to the understanding of the situation and what action resulted from the contact. The records must be factual in nature
and written with the assumption that someone else might read the information if the records are subpoenaed or with permission of the counsellee or his/her parents.
5. Counsellors must understand their Board’s policies and procedures with respect to access to and disclosure of confidential client information to: other Boards of Education; outside professionals; and community, social or government agencies. In the absence of any Board policy the guideline to be applied is that the transfer of information will occur only with the written consent of the client (if under 18, then a parent or guardian) and/or when required by law.
6. Counsellors understand that clients have a right to access their counselling records.
Legally Speaking
Section 266 of the Education Act and Ontario Student Record Guideline govern the law with respect to student records. See also the discussion in Confidentiality on page 22.
OSCA Ethical Guidelines for Ontario School Counsellors 2010 • www.osca.ca ■ 31