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Law for School Counsellors

Outlining Best Practice Case Note and Report Writing to address

Legal Issues and Risks – A Clinician’s Perspective

Dr Gary K. Banks PhD(Med), MPsych(Clin), MBA, MAPS

Consultant Clinical and Forensic Psychologist

Clinical DirectorSydney Counselling CentreEmail: gkbanks@sydneycounselling.com.au

August, 2014Dr Gary K Banks, Principal Clinical Psychologist

Sydney Counselling Centre2

Overview

� How can School Counsellors notes be used in legal proceedings?

� What should you include in your notes?� Exploring best practice in recording

discussions, quotes from clients, tasks given to clients and other interactions

� Computer notes versus hand written notes

� Key points to consider in writing reports for Court proceedings

August, 2014Dr Gary K Banks, Principal Clinical Psychologist

Sydney Counselling Centre3

Obtained by the Court via a Subpoena to Produce

• These can be requested by one party in a disputed Family Law i.e. the Applicant or the Respondent, or

• The Independent Children’s lawyer (ICL)

• By the Single Expert conducting an assessment/family review using a Ch16A request or an appropriately authorised Permission to Release

• Via DFaCS using 16A or s248 requests

• Via Police ‘to assist with an investigation’

• Via defendant or plaintiff lawyers (with authority)

August 2014Dr Gary K Banks, Principal Clinical Psychologist

Sydney Counselling Centre4

How can School Counsellors notes be used in legal proceedings?

August, 2014Dr Gary K Banks, Principal Clinical Psychologist

Sydney Counselling Centre5

• Compensation matters – personal injury, public liability• Criminal matters – competence• Coroner’s court• Victims of Crime Tribunal• Immigration Review Tribunal• Probate

And of course…• Family Law Court/Federal Circuit Court of Australia

Which Courts would be interested in School Counsellor notes?

August 2014Dr Gary K Banks, Principal Clinical Psychologist

Sydney Counselling Centre6

What should you include in your notes?

� “It is expected that all school counsellors, as employees of the Department of Education and Communities, will make themselves familiar with these policies and any other relevant ones as they are released.”

� (NSW School Counsellor Manual (2011)� Code of Conduct Policy 2006 � Code of Conduct Procedures 2010 � Procedures for Managing Drug Related Incidents in Schools 2010 � Guidelines for the use of Strategies to Support Gifted and Talented � Students 2004 � Occupational Health and Safety Policy 2006 � OHS Risk Management Guidelines and Support Tools 2005 � Protecting Children and Young People Policy 2010 � Bullying: Preventing and Responding to Student Bullying in Schools Policy � 2011 � Bullying: Preventing and Responding to Student Bullying in Schools � Guidelines 2011

August, 2014Dr Gary K Banks, Principal Clinical Psychologist

Sydney Counselling Centre7

August 2014Dr Gary K Banks, Principal Clinical Psychologist

Sydney Counselling Centre8

and also the …

Anti-Bullying Plan Template 2011 Privacy Code of Practice 2000 Private and Secondary Employment Guidelines 2007 Protecting and supporting children and young people procedures 2011 Student Discipline Policy 2006 Student Welfare Policy 2004 People With Disabilities - Statement of Commitment 2006 Students with Disabilities in Regular Classes: School Support Document 2004 Suspension and Expulsion of School Students-Procedures 2011

August 2014Dr Gary K Banks, Principal Clinical Psychologist

Sydney Counselling Centre9

and also the …

ADepartment of Education and Training NSW Privacy Code of Practice 2000 Department of Education and Training NSW Student Counselling Files PolicyEducation Act 1990 (NSW)Health Records and Information Privacy Act 2002 (NSW)Health Records and Information Privacy Code of Practice 2005Occupational Health And Safety Act 2000Privacy and Personal Information Protection Act 1998 (NSW)Teachers Handbook 2003Teaching Service Act 1980 (NSW)

August 2014Dr Gary K Banks, Principal Clinical Psychologist

Sydney Counselling Centre10

Why keep records?General expectation that information will be recordedProfessional expectation that records are kept as per the Code of Conduct.

A professionally competent record will:• serve as a reminder of the important details of the case• provide a summary of what the counsellor has been told or observed,• the advice or recommendations that have been made and • the success of the intervention• contain complex technical data (such as psychometric test results)• provide a developmental history which can lead to new insights• allow continuity of management

August 2014Dr Gary K Banks, Principal Clinical Psychologist

Sydney Counselling Centre11

School counsellor records are more than just the school counsellor’s own notes…

Typically they also include at least some of the following:

• psychometric protocol and results• suspension reports• samples of students’ work• letters from parents or caregivers• reports from teachers and progress reports• reports prepared by the counsellor• copies of letters to the parents or caregivers• applications for support placement and/or services • review committee reports and recommendations• behaviour “contracts”• reports from other agencies• medical and paramedical reports.

August 2014Dr Gary K Banks, Principal Clinical Psychologist

Sydney Counselling Centre12

School counsellor records:

“…any school counsellor case notes are departmental records•must be signed and dated•kept in chronological order, •most recent on top, be factual, or be clearly ascribed as the counsellor’s professional interpretation, or another person’s opinion•must to be registered (sic)•need to be kept private and secure.”

(NSW School Counsellor Manual 2011)

August 2014Dr Gary K Banks, Principal Clinical Psychologist

Sydney Counselling Centre13

AHPRA has simply adopted the APS Code of Conduct – hence making the ‘Code’ a statutory requirement

“B.2. Record keeping B.2.1. Psychologists make and keep adequate records. B.2.2. Psychologists keep records for a minimum of seven years since last client contact unless legal or their organisational requirements specify otherwise. B.2.3. In the case of records collected while the client was less than 18 years old, psychologists retain the records at least until the client attains the age of 25 years. B.2.4. Psychologists, with consideration of the legislation and organisational rules to which they are subject, do not refuse any reasonable request from clients, or former clients, to amend inaccurate information for which they have professional responsibility.”

August 2014Dr Gary K Banks, Principal Clinical Psychologist

Sydney Counselling Centre14

Psychologists make and keep adequate records

Make = ‘To cause to exist or happen; to bring about; to create…. ‘(Oxford Dict)

Adequate = ‘Satisfactory or acceptable in quality or quantity’ (Oxford Dict);

‘Good enough, although not necessarily the most or the best; sufficient.’ (Business Dictionary)

‘Good enough: of a quality that is good or acceptable: of a quality that is acceptable but not better than acceptable (Merriam-Webster Dict).

August 2014Dr Gary K Banks, Principal Clinical Psychologist

Sydney Counselling Centre15

Understand that ‘adequate’ does not mean ‘expansive’, nor even ‘comprehensive’, but from a peer reviewer’s perspective - it should imply records are reasonably legible and informative to an (adequate) extent.

August 2014Dr Gary K Banks, Principal Clinical Psychologist

Sydney Counselling Centre16

But …

“Each week, in my district, I provide service to XXXX H.S., which has 900 students + three special education support classes (21 students on the autism spectrum).

In addition, I provide service to YYYY Special School (n= 60), which has 8 special education support classes for severely / moderately intellectually disabled students...”

August 2014Dr Gary K Banks, Principal Clinical Psychologist

Sydney Counselling Centre17

Exploring best practice in recording discussions, quotes from clients, tasks given to clients and other interactions?

August 2014Dr Gary K Banks, Principal Clinical Psychologist

Sydney Counselling Centre18

August 2014Dr Gary K Banks, Principal Clinical Psychologist

Sydney Counselling Centre19

Practical ways of improving record- keeping Personally sign all typed letters and entries on the case record Sign and write name in block capitals for clear identification of handwritten entries Date all case record entries Give as much thought to case record entries as to letters or reports

Be thorough but concise Include periodic summaries in the records of students in long-term contact with school counselling services

“Be mindful that the quality of the case record will be assumed to reflect the quality of the care received”

(Pullen and Loudon, 2006)

August 2014Dr Gary K Banks, Principal Clinical Psychologist

Sydney Counselling Centre20

• all but the most transient contact with a student should be recorded • the record should be made in the student’s registered file, under the general headings: reason for contact; findings; conclusion; action to be taken; and who was informed. • every entry should be legible, dated and signed • access to the folder should be clearly defined in local policies and procedures, but free access by the relevant user should be the usual practice (except in defined circumstances) • the local organisation should be accountable for the quality of support, training and development provided for professionals and other workers • record keeping and communication should be subject to continual quality development under the umbrella of clinical governance.

August 2014Dr Gary K Banks, Principal Clinical Psychologist

Sydney Counselling Centre21

Exploring best practice in recording discussions, quotes from clients, tasks given to clients and other interactions?

August 2014Dr Gary K Banks, Principal Clinical Psychologist

Sydney Counselling Centre22

ANECDOTAL NOTES: – If your records are considered “anecdotal notes,” then they are your personal property and are not to be shown to anyone, under any circumstances.

These are your diaries, journals, and work product

A good rule of thumb – if I physically show my notes to another person, the notes become public property and can no longer be considered confidential,

August 2014Dr Gary K Banks, Principal Clinical Psychologist

Sydney Counselling Centre23

WHEN TO GET MORE DETAILED: – Any question of a student’s safety being at risk– Self-harm (such as cutting, eating disorders, etc.) or suicide attempt or plan – Threats of violence or harm to others, particularly at school – Drugs or weapons on campus; some off-campus drug use– Abuse or suspected abuse– Suspected or confirmed pregnancy– Sexual activity between young persons (even with consent) –Harassment, bullying, or discrimination – Cheating, stealing, etc., particularly at school– Family Court battles (because of potential legal involvement)– Angry or volatile parents in most any situation– Any other situation you feel uneasy about – better safe than sorry!

August 2014Dr Gary K Banks, Principal Clinical Psychologist

Sydney Counselling Centre24

Computer notes versus hand written notes

August 2014Dr Gary K Banks, Principal Clinical Psychologist

Sydney Counselling Centre25

Key points to consider in writing reports for Court proceedings

August 2014Dr Gary K Banks, Principal Clinical Psychologist

Sydney Counselling Centre26

August 2014Dr Gary K Banks, Principal Clinical Psychologist

Sydney Counselling Centre27 September 2014 Dr Gary K Banks, Principal Clinical Psychologist

Sydney Counselling Centre28

Be aware:

The Family court will appoint a Single Expert to assist with a rigorous review of the information presented by both parents (and partners), and significant others.

The Single Expert is expected to provide the Court with observations of parents with children, and where appropriate the views of the children. The Single Expert can draw on School Counsellor files. But it is not the School counsellors job to do any of this.

September 2014 Dr Gary K Banks, Principal Clinical PsychologistSydney Counselling Centre

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Case 1

Child seeing school counsellor made disclosures- her mother had punched her in the face- she was made to do significant chores- step-father had threatened to break her

wrist

School counsellor contacted father to discuss disclosures and in the absence of court orders, assisted the father to unilaterally remove the child from school

September 2014 Dr Gary K Banks, Principal Clinical PsychologistSydney Counselling Centre

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Case 2

Parent rings school counsellor and wants SC to see child. School counsellor sees child on a number of occasions

Child talks favourably about time spent with father, school counsellor makes extensive notes about this.

Some months later father then subpoenas school file and includes this as part of his Family Law proceedings.

September 2014 Dr Gary K Banks, Principal Clinical PsychologistSydney Counselling Centre

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Case 3

School counsellor subpoened to court following child who sustained head/neck injury. School counsellor notes were called for to assist establish pre-morbid IQ

SC notes – recorded incident of child slipping on floor at school – ‘fell on elbow, nil other injury. Child reported being dumped in surf during Xmas hols, hitting head, hurting neck’

Parents sued school regarding slip on floor - but SC notes indicated that injury was attributable to surf incident, not fall on floor

September 2014 Dr Gary K Banks, Principal Clinical PsychologistSydney Counselling Centre

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Case 4

Child informs SC of mother sustaining domestic violence

SC made notes in the guidance file and School File

SC instructed child to keep diarySC made mandatory reports

Father contacted SC instructing SC to desist seeing student. Made formal complaint against SC

School review, Psych peer-review both found SC acted appropriately –

Paramountcy principle holds up

September 2014 Dr Gary K Banks, Principal Clinical PsychologistSydney Counselling Centre

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Case 5

Mother tells SC that:‘Father enters the bathroom while child in shower,

to use toilet’. Child anxious, episodes of school refusal, child refusing to attend access with father?? Re Father grooming child’

SC makes mandatory report

Children’s Court Clinician report – observed Mother and child together. Noted Mother to infantalize child, dressed her down and routinely co-slept with child.

SC attended Chn’s Ct with notes and informal fileSeptember 2014 Dr Gary K Banks, Principal Clinical Psychologist

Sydney Counselling Centre34

Case 6

Father requests SC to see child:Child (15) reports doesn’t like living with mother, she

yells at him, makes him do chores, grounds him constantly.

Father requests SC to write a letter regarding child’s wishes about where he wants to live

SC writes letter ‘To whom it may concern’ recommending child should live with father

Court finds out child is left unsupervised for long periods of time at Father’s house, smoking and drinking.

Mother files complaint about SC who is formally disciplined