an ncylc e-bulletin

Issue #2: May 2004

DISCUSSION PAPER

'Counsellors and their Child Clients'

The National Children’s and Youth Law Centre has prepared a discussion paper on children and counselling. The paper tackles the difficult subject of the legal obligations of confidentiality and children’s rights – an area of law that is largely unclear and is of increasing importance in today’s society. It will explore three issues in the legal relationship between counsellors, children and their parents.

Firstly, do children have the legal capacity to enter a client relationship with a counsellor independently of their parents, and to what extent is this analogous to competence to consent to medical treatment.

Secondly, is a child owed the same duty of confidentiality that adults enjoy or can third parties, including parents and teachers, can have access to information provided by the child in the course of counselling.

Thirdly, what is the legal position of a counsellor whose services are requested by the parent for the child against the child’s will.

These difficulties are not merely ethical issues. They concern the professional and legal obligations and liability of counsellors. Counsellors may be concerned about whether a child may sue for breach of confidence where they inform the parents either, that their child is being counselled, or of the contents of the counselling session. Conversely, the question may be whether a parent may sue the counsellor for keeping a confidence, for example, where a child later commits suicide.

There have been no case decisions in Australia that define the rights and obligations of counsellors, child clients and their parents. However, if the law on medical treatment is applied to the special context of counselling, it is arguable that the law recognises the capacity of ‘mature’ children to consent to counselling and to undergo counselling of their own volition.

Although, counsellors may feel some obligation to disclose certain information obtained during counselling when requested by a concerned parent, especially when the parent has arranged and paid for the service, this paper will argue that children who are capable of consenting to a confidential relationship are owed a duty of confidentiality by counsellors. The effectiveness of counselling can be greatly influenced by the relationship of trust between client and counsellor. Fear of disclosure to third parties may undermine this relationship and the actual choice to access counselling services. Therefore, such uncertainty surrounding the obligations and practices of counsellors with regard to confidentiality can directly contribute to less successful outcomes for children.

Despite English cases that have held to the contrary, the paper suggests that Australian law would accept that parents are unable to force an unwilling child to counselling.

The paper argues that reforms are necessary to improve certainty in the law and to educate counsellors, children and their parents of the obligations of confidentiality owed by counsellors to their child clients. Suggested reforms include:

  1. guidelines for counsellors to assist them in determining competency to consent to counselling;
  2. legislation to recognise a duty of confidentiality owed to competent minor clients;
  3. the dissemination of information among children and their parents about their entitlement to confidentiality whilst receiving counselling and about the limits of confidentiality.

The report is being prepared based on contributions by Sharon Gordon, Amber E. French, Robert Ludbrook, Louise Goodchild, Carolyn Jones and Emma Bayley.

Emma Bayley