This material is disseminated through Youth Wellbeing Project for general information purposes and provided as additional education

for GET A GRIP teenz facilitators. Acknowledgement and thanks goes to Corney & Lind Lawyers (www.corneyandlind.com.au) who have assisted in compiling this paper. This paper is for educational purposes only and is not legal advice. It was the basis of a presentation to school counsellors in January 2012, and may no longer be current or complete. You should always consider taking independent legal advice having regard to your individual circumstances.

NOTE TO GET A GRIP teenz facilitators:

Given the sometimes sensitive nature of the delivering GET A GRIP teenz within your school, it is esssential you have correct referral processes in place and understand your obligations relating to confidentiality. Ensure you are familiar with both school and legal requirements relevant to your role. This material is not to be used as a substitute for legal advice.

BACKGROUND
Recent national figures from the Australian Institute of Health and Welfare indicate that in Australia, during 2009-10, there were 286,437 reports of suspected child abuse and neglect made to state and territory authorities (this is actually a decrease of 16% from the 339,454 reports made in 2008-09). 1 It is clear that school counsellors and educators are needing to regularly consider their reporting obligations to government authorities, and how these obligations fit with obligations of confidence. Additionally, according to the Australian Bureau of Statistics there were 47,963 divorces in Australia in 2007. Nearly 50% of all divorces involve children under the age of eighteen. Of the 4.8 million children aged below 18 in 2006-07, just over one million had a natural parent living elsewhere. Of these children, 75% lived with a single parent, 12% in step-families and 10% in blended families. After separation, 82% of children lived with their mother rather than their father. The unfortunate reality is that schools are being dragged into the breakdown of the family unit, and their records (including counsellor records) are becoming a regular target of family law subpoenas.

PART 1: OBLIGATIONS OF CONFIDENCE/PRIVACY

Obligations of confidence and privacy can apply through any of the following ways: (NOTE: a d: related to Commonwealth/National; e: related to Queensland) a. b. c. d. e. Possible right to privacy at Common Law; Equitable breach of confidence; Breach of the relevant Privacy Act; The ethical obligations of the Counsellor Section 426 of the Education (General Provisions) Act 2006 (and also considering the changes to the mandatory reporting provisions which commenced on 9 July 2012); or and / or Breach of an actual or implied term of confidentiality in the Contract of Enrolment [non-state schools] (not discussed in this paper)

a.

Right to privacy at common law

The general rule has historically been that the common law does not recognise a persons right to privacy. However, to some extent this rule has been revisited, and it is uncertain as to whether a right to privacy might now exist at common law.

Given these realities, this material seeks to briefly address the following: (1) (2) Understanding how an obligation of confidence can arise, and the implications of breaching an obligation of confidence; Provide some tips for school counsellors and educators, in dealing with these competing obligations.

b.

Breach of Confidence at Equity

Where an individual receives information that is of a confidential nature, and the information is received in circumstances of confidence, the individual can be held accountable for any misuse of the confidential information. This is an action under equity, and can result in damages being awarded or injunctions being given to restrain the breach of confidence.

1 Alister

Lamont, Child Abuse and Neglect Statistics, published by the Australian Institute of Family Studies, February 2011

A plaintiff needs to demonstrate that the information is confidential or secret in nature. Additionally, the information must have been shared with the confidant in circumstances giving rise to an obligation of confidence. Obviously this will depend on the circumstances in any given case, however personal information that is shared with a counsellor during a confidential counselling session could easily be seen as being confidential in nature. If the information is sufficiently confidential in nature and context, then the confidant must not make any unauthorised use of the information to the detriment of the person communicating it. Detriment has been interpreted broadly, and can include embarrassment and loss of privacy. Damages can be awarded for any breach of confidence, and the general rule is that any restitution should place the confider in the position he/she would have enjoyed had the breach of confidence not occurred. Clearly then the starting point for any disclosure of confidential information is that the confider consents to the disclosure of the confidential information. However, a defence to a claim for breach of confidence includes where the disclosure is made in the public interest. Whilst the application of this defence is not entirely clear on the case law, it seems to comprise a balancing exercise between the interests of the confider in maintaining the confidentiality of the information, and the interests of the public in knowing the confidential information. Where the confidential information relates to the commission of a criminal offence, than the public interest defence will certainly become relevant.

c.

Right to Privacy under legislation

Privacy obligations have been enacted in the Privacy Act 1988 The role of the Office of the Privacy Commissioner The Office of the Privacy Commissioner has been established under the Commonwealth Act, for purposes which include educating the community, investigating complaints of interferences with privacy and preparing and publishing guidelines on the Commonwealth Act. If an individual considers that their privacy has been interfered with, he/she can make a complaint to the Office of the Privacy Commissioner. The Office will initially seek to conciliate the complaint, in an effort to resolve the dispute. Pursuant to section 52 of the Commonwealth Act, the Office can also investigate a complaint, and at the conclusion of the investigation either: Determine the complaint unsubstantiated; or Find the complaint substantiated and make a determination against the organisation. This determination can include a declaration that the organisation compensates the individual for any loss or damage suffered as a result of the breach of privacy. The determination is not binding or conclusive at this stage. However, if the organisation refuses to comply with the determination, the Office can apply to the Federal Court or Federal Magistrates Court for an order to enforce the determination. If the Court is satisfied that the organisation has engaged in conduct that constitutes an interference with the privacy of the individual, the Court can make such orders as it thinks fit.

Personal Information and Sensitive Information For the purposes of the National Privacy Principles, it is important to distinguish between Personal Information and Sensitive Information. Personal Information is information or an opinion whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or source. Sensitive Information is a subset of Personal Information. It is information about an individuals racial or ethnic origin, political opinions, membership of a political association, religious beliefs or affiliations, philosophical beliefs, membership of a professional or trade association, membership of a trade union, sexual preferences or practices, criminal record, health information about an individual or genetic information about an individual that is not otherwise health information. A significant amount of personal information collected by school counsellors will also be sensitive information, and the higher obligations of privacy that attaches to such information should not be disregarded lightly.

Provided the disclosure is justified by National Privacy Principle Two, then a school would have a basis for defending a complaint of interfering with an individuals privacy. From an examination of the Principle, a number of key points can be made: The basic premise is that Personal Information and Sensitive Information should generally only be disclosed with the consent of the individual. This is even more the case where the information is sensitive information given 2.1(a)(i). The Office of the Privacy Commissioner takes the view that, when dealing with personal or sensitive information provided by children, consideration should be given to obtaining the consent of the child to any disclosure. Obviously this will depend upon the age of the child and the ability of the child to understand and give informed consent. An older child may be capable of giving such informed consent, and the Privacy Commissioners view is that the childs view should be taken into account. When relying on 2.1(e) (serious and imminent threat to life, health or safety), the Office of the Privacy Commissioner takes the view that a serious threat would ordinarily require a threat of bodily injury, mental health, illness or death. The threat must also be imminent (that is, it is about to happen). Disclosure of unlawful activity to the appropriate authorities is permissible. Disclosure that is required or authorised by law (for example, authorised by another law or through lawful process, such as a subpoena) is also permissible.

Disclosure of Personal Information and Sensitive Information Use and disclosure of Personal Information and Sensitive Information is subject to National Privacy Principle Two. This is detailed by the Office of the Australian Information Commissioner (Australian Government) in the National Privacy Principles Document. This can be downloaded from: http://www.oaic.gov.au/publications/privacy_fact_sheets/Privacy-factsheet2_NPPs_online.pdf

d.

Ethical obligations of confidence

Finally, obligations of confidence could also be founded upon the various ethical obligations or guidelines imposed by professional bodies (such as the Australian Psychiatric Society, the Queensland College of Teachers etc.). The application of these obligations would depend on the counsellors membership and professional qualifications.

The reporting obligations will still only apply to students of the school under 18 years or students with a disability being provided with special education (a relevant person). However, the Amending Act expands the reporting obligations to circumstances where a staff member reasonably suspects the sexual abuse has been perpetrated by any person. This is the first significant change, as it no longer only relates to sexual abuse by an employee. However, this obligation will only apply where the staff member becomes aware or forms a suspicion during the course of their employment. A failure to report under this provision continues to be an offence. In addition, the amendment included a further reporting obligation where the staff member reasonably suspects that the student is likely to be sexually abused. However, a failure to report likely sexual abuse is not a criminal offence. This amendment has not yet commenced because of drafting concerns, and is anticipated to commence in the 2013 school year. The staff member must give a written report about their suspicion to the Principal or a Director immediately. The Principal or Director is then obliged to immediately report the suspicion to a police officer. Any person is obviously broad, and would include sexual abuse by fellow students, guardians/parents and other persons. Sexual abuse is now also defined in the legislation as including sexual behaviour involving a relevant person and another person in the following circumstances: The other person bribes, coerces, exploits, threatens or is violent towards the relevant person; The relevant person has less power than the other person; There is significant disparity between the relevant person and the other person in intellectual capacity or maturity.

e.

Section 426 of the Education (General Provisions) Act (Queensland)

The Education (General Provisions) Act can be found here: http://www.legislation.qld.gov.au/Acts_SLs/Acts_SL_E.htm (i) (ii) Section 426: Confidentiality Mandatory Reporting Provisions Reporting of Sexual Abuse

Sections 364, 365 and 366 of the Education (General Provisions) Act Amendments to mandatory reporting of sexual abuse: Commencement 9 July 2012 In the latter half of 2011, the Government introduced into parliament the Education and Training Legislation Amendment Bill 2011. 2 This Act was passed and given royal assent on 24 November 2011, and the changes to the mandatory reporting provisions commenced on 9 July 2012 (other than as noted below).

Education and Training Legislation Amendment Bill 2011, Explanatory Notes, 3.

Care will need to be taken when dealing with sexual behaviour between students and particularly whether that behaviour could amount to sexual abuse because of the circumstances of the behaviour or the nature of the relationship between the students. Likely is not defined in the legislation, and will take its ordinary meaning. Likely has been judicially considered as having a degree of probability that is greater than possible but less than certain. For a consequence to be likely, it must be substantial and real, and not remote. As in the existing legislation, a person who makes a report under these provisions is protected from any criminal, civil or administrative liability, including defamation, and is relieved of their obligations of confidence. This is a welcome protection, particularly where the staff member is reporting likely sexual abuse. The Explanatory Notes for the amending legislation acknowledge that forming a reasonable suspicion about likelihood of sexual abuse is a subjective assessment and that it might be difficult for individuals to determine the scope of the reporting requirement and when they must report. 3 However, this is balanced by an acknowledgement that staff are provided training on the implementation of policies and that teachers are a professional class of people trained to observe relevant factors in children and to use analytical skills to form conclusions. 3 Additionally, reporting of likely sexual abuse is not an offence provision, and it seems to us that the amendments are more protected towards the best interests of the child and providing appropriate protection for the individual making the report.

The Explanatory Notes also acknowledge that a school owes a common law duty of care to students under which there is a positive obligation to take all reasonable steps to minimise the risk of foreseeable harm. The Explanatory Notes makes the further conclusion that a likelihood of sexual abuse is foreseeably a matter schools ought to be considering in development of risk management strategies, policies or procedures aimed at ensuring their common law duties are met. 3 NOTE: OVERIDING THE OBLIGATION OF CONFIDENCE There are circumstances where the obligation of confidence can be over-ridden. To some extent, these have been discussed in the paragraphs above (for example, the application of National Privacy Principle 2, Public Interest Disclosure and the mandatory reporting provisions). The concept of Privilege (including confessional privilege), responding to a subpoena and admissible complaint evidence are areas for further specific legal consideration and advice.

Education and Training Legislation Amendment Bill 2011, Explanatory Notes, 12.

PART 2:

SOME TAKE HOME TIPS

When recording information, protect yourself by recording facts, and avoid recording opinions. Balance the detail you record, taking into account the possibility of that detail becoming disclosable in response to a subpoena, against your competing professional obligations and the possibility of giving evidence 4A(2) of the Criminal Law (Sexual Offences) Act 1978 (Qld). If you receive a subpoena, consider taking legal advice on the ambit of the request. If a confidant is considering disclosing their criminal conduct to you, warn them that there may be no confidentiality over the disclosure.

Given the various competing interests when considering confidentiality, the following tips are suggested (particularly relevant to counsellors): Never lightly dismiss your obligations of confidence, given the potential impact it can have on you, your reputation, the school and the confidant. Even if you are disclosing confidential information on a lawful basis, you should still consider whether appropriate notification should be made to the confidant of the proposed notification. In the cases of a subpoena, the confidant may wish to appear and object to the subpoena, and failing to let the confidant know of the subpoena when it is received can prevent the confidant in taking this action. The school should also not assume that the confidant has knowledge of the subpoena, as the confidant may not be a party to the actual proceedings. Do not disregard the potential right of the child to be involved in the disclosure of their personal information, taking into account the age of the child and his/her capacity to give informed consent (but noting that the mandatory reporting provisions override any obligation of confidence to a child).

Acknowledgement and thanks goes to Corney & Lind Lawyers for providing this information. This paper is for educational purposes only and is not legal advice. If you require legal advice, you can contact: Alistair Macpherson | Partner, Corney & Lind Lawyers | Email: Alistair.macpherson@corneyandlind.com.au Phone: (07) 3252 0011 | Web: www.corneyandlind.com.au

https://twitter.com/GENzWELLBEING https://www.facebook.com/YouthWellbeingProject