Confidentiality Issues Regarding the Treatment of Minors in Wisconsin

At the onset of any professional counseling relationship, it is imperative that the counselor obtain informed consent, by meeting with both the minor and her parents in order to inform them of the intentions of and possible outcomes of the service, explaining the importance that he or she places on confidentiality and also to specify the times in which a counselor must breach this, i.e. harm to self or others, sexual relations, abuse, and suicide. Counselors, who practice within the state of Wisconsin, are considered “mandated reporters” and are therefore governed by laws that pertain to the abuse or neglect of a minor. Wisconsin Statute §48.981(2), states that a professional “having reasonable cause to suspect that a child seen in the course of professional duties has been abused or neglected or having reason to believe that a child seen in the course of professional duties has been threatened with abuse or neglect and that abuse or neglect of the child will occur.”

Additionally, the state of Wisconsin finds that children under the age of 16 years of age, are unable to consent to activities of the sexual nature, and those who engage in a child in such activities will receive a felony conviction, (Wis. Stat. §948.02(1), (2)), therefore, any reports of such activities, regardless of implied consent must be reported to the health and human services department in their county. This requirement directly conflicts with the counselor’s ethical requirements, whereas ACA (2005) code B.1.c. finds that “Counselors do not share confidential information without client consent or without sound legal or ethical justification,” and also in code B.2.a. which states “the general requirement that counselors keep information confidential does not apply when disclosure is required to protect clients of identified others from serious and foreseeable harm or when legal requirement demand that confidential information must be revealed.” This would then imply that a counselor is required to follow the laws in her state or county first, being that of a mandated reporter trumps the client’s right to confidentiality.

In situations where the information discloses does not include the sexual activity of, abuse and/or neglect to, or an intention of harm, issues of confidentiality related to minors, can mirror that of adults. Wisconsin Statute §118.126(1) states that a counselor “who engages in alcohol or other drug abuse program activities shall keep confidential information” that had been disclosed by a minor client during therapy sessions. And finally, in cases where a minor discloses their intent to commit suicide, Wisconsin law protects a counselor’s decision to breech confidentiality in finding §118.295 one “who, in good faith attempts to prevent suicide by a pupil is immune from civil liability for his or her acts or omissions in respect to the suicide or attempted suicide.” While, the law does not state that one must disclose these intentions, it does give permission for this disclosure.

Of additional concern, when working with minor children is the issue of parental disclosure. According to Remley and Herlihy (2001, p.103), “counselors have an ethical obligation of privacy to minor clients, and a legal obligation to the parents or legal guardians of those same minor clients to keep their children safe.” Unfortunately however, Wisconsin laws find that minor clients do not possess the ability to consent to services, or have the mentally capacity to make educated decisions regarding counseling services or to understand the rights and/or limitations of confidentiality, (Davis & Mickelson, 1994). As result, Remley and Herlihy (2001) suggest that the minors are afforded no privacy or disclosure rights from their parents and/or guardians who are legally responsible for them. Conversely they find that “a child, regardless of age, has an ethical right to privacy and confidentiality in the counseling relationship” (p. 176).

As a counselor in private practice, based on ACA (2005) code B.2.a., one does not necessarily have a legal obligation to inform a minor client’s parents and/or guardians of any situation in which the client is not in immediate danger. Many counselors will however struggle with the term “danger” finding the term in-and-of itself is subjective. What is the definition of foreseeable harm? Would statutory rape be considered harm? And while the law implies that a minor does not have the capacity to make informed decisions about their care, Remley and Herlihy (2001) find that parents or guardians “probably have a legal right to know the content of counseling sessions with their children,” (p. 177). Given this information, one could conclude that in cases that did not involve abuse, neglect, or sexual activity in a minor child under the age of 16, that the counselor may use their professional judgment in deciding which information, if any, should be disclosed. In the best case scenario, the counselor would work with the minor client in devising a plan to jointly inform or discuss the relevant and necessary information to the parent, past this it would seems that disclosure is a subjective.
Stephanie Lowrance-Henckel

References

American Counseling Association (2005). Code of Ethics. Alexandria, VA

Remley, T. P., & Herlihy, B. (2001). Ethical, legal, and professional issues in
counseling. Upper Saddle River, NJ: Merrill Prentice Hall.

Wisconsin Statutes §48.981(1) and §48.981(2). (1999-2001). Wisconsin Legislature. Retrieved on October 25, 2008 from http://nxt.legis.state.wi.us/nxt/gateway.dll?f=templates&fn=default.htm&d=stats&jd=Wisconsin%20Statute%20§48.981(2)

Wisconsin Statute §118.295. (1999-2001). Wisconsin Legislature. Retrieved on October 25, 2008 from http://nxt.legis.state.wi.us/nxt/gateway.dll?f=templates&fn=default.htm&d=stats&jd=Wisconsin%20Statute%20§48.981(2)

Wisconsin Statute §118.126. (1999-2001). Wisconsin Legislature. Retrieved on October 25, 2008 from http://nxt.legis.state.wi.us/nxt/gateway.dll?f=templates&fn=default.htm&d=stats&jd=Wisconsin%20Statute%20§48.981(2)