'Be of Good Counsel' The role of counselling in schools – legal and other issues to consider

Schools can be places of high stress in this part of the summer term, with the pressures of public exams bearing down on the students. But, as everyone involved in education has been acknowledging recently, young people can experience stress and unhappiness all year round.

In March this year the Children's Commissioner for England Dame Rachel de Souza commented that 'There is a growing group of children who are struggling with their mental health. This generation of children has experienced uniquely uncertain and challenging times. Some have spent some of their most formative years isolated and indoors, fearful they or their loved ones may catch a deadly virus. They have felt the squeeze of a cost-of-living crisis and are keenly aware of the pressure their parents are under. They are constantly bombarded by negative news, of wars and climate catastrophe. An increasing number are exposed to the harmful impact of social media, cyber bullying, and online exploitation. Crucially – not all children have the support system and protective factors they need to thrive in these difficult circumstances.'

This was in the context of her report Children’s Mental Health Services 2022-23 , which showed that, in that period, nearly one million children and young people – 949,200 – were referred to Children and Young People’s Mental Health Services, also known as Child and Adolescent Mental Health Services or CAMHS – equal to 8% of the 11.9 million children in England, and that, of those, 28% (270,300) were still waiting for support from mental health services in March 2024, while 39% (372,800) had their referral closed before accessing support. 

In addition to urging improvement in this provision overall (especially addressing the geographic vagaries of waiting times), Dame Rachel stressed that 'We need fresh, long-term thinking when it comes to children’s mental and emotional health and wellbeing. Much of this work must be done upstream, creating an environment and a world – both online and offline – where children grow up feeling happy, safe and supported. This means every child feels loved and nurtured, lives free from poverty, and is able to focus on learning. With enough focus on prevention, children should never come close to crisis.'

Schools play a vital role in this early support, responding to and preventing students' mental health issues. And counselling – a form of talking therapy, provided one-to-one and aimed at helping the students themselves find ways through their problems - is an important element of any school's toolkit.

In February 2016, the Government acknowledged the importance of counselling in its Departmental guidance for school leaders and counsellors which they issued as 'a blueprint for the future' . Despite this, within the maintained sector, England still lags behind the other home nations in having no government-funded counselling services.  This is something which Bridget Phillipson, the shadow Education Secretary, pledged in July last year that the Labour party would remedy, if elected, committing to providing a trained mental health counsellor in every state secondary school . 

Many independent schools, however, have already recognised the urgent need, making arrangements for free and timely access to counselling for their students who need it.  The rest of this article considers the legal and other related issues which schools need to address in relation to such provision.

Counsellor's professional obligations

The first thing to recognise is that, whether the Counsellors are the school's direct employees or are provided through a contract with a counselling company, they will have their own professional responsibilities and standards.  There are various registration bodies which may oversee their work, of which BACP (the British Association for Counselling and Psychotherapy) is probably the best known.  The school's arrangements with their Counsellors will have to take account of those external obligations. 

This will include the arrangements relating to the Counsellor's records of their sessions with the students, which will need to be kept securely, with access restricted to the Counsellor only, and destroyed when the student reaches the age of 25. 

Issues may also arise where the student is receiving other support out of school. An in-school Counsellor will not usually be willing to take on a student who is receiving treatment from another practitioner or who is under the care of CAMHS, unless their role is part of a coherent plan which is managed by another medical professional and which the Counsellor has endorsed. 

Confidentiality and pastoral care / safeguarding generally

A key element of counselling is confidentiality. This is particularly sensitive in the school context. 

The school will have a contract with the student's parents for its educational and pastoral care provision, and the parents will regard any counselling provided as one of the services for which the school is responsible. But the student may not want their parents to know that they are seeking help from a Counsellor; the very problems with which the student is struggling may relate to their parents or their home situation generally. The Counsellor will usually adopt the position that, provided the Counsellor considers the student to have the intelligence, competence and understanding to appreciate fully what is involved in their treatment - this is known as being ‘Gillick competent’ - they can refer themselves for counselling, without parental consent.

Counsellors aim to provide a safe space for students to discuss any experiences or challenges in their lives. Their work must be aligned with, but is distinct from, the school's overall pastoral care and provision for special educational needs.  This needs to be clearly understood and managed, as between the Counsellor and the student; as between the Counsellor and the school; as between the school and the student; and as between the school and the parents. 

So, whilst the Counsellor may, having explained this position to the students, pass to the school's pastoral care leaders the students' names and an indication of the broad category of concern (to inform the school's wider responsibilities to provide suitable care for students), the students' identities will not be shared more widely, and nor will the contents of counselling sessions be made known, save in exceptional circumstances. 

Such exceptional circumstances include disclosures of:

• child abuse or where the Counsellor considers that the student or another individual is at risk of significant harm (such as demonstrating suicidal ideation);
• serious crime such as murder or assault; and
• suspicions about terrorism, drug trafficking and money laundering.

A court may also order a Counsellor to disclose the contents of counselling sessions in certain circumstances.

Protocol

This delicate relationship needs to be clearly set out for all concerned. 

There needs to be clarity about what counselling is; what level of support (and for how long) the school will provide; how counselling relates to the school's overall safeguarding functions; what will be kept confidential and when that confidentiality will not apply; and what records will be kept.

There is also the question of the Counsellor's possible relationship with the student's parents themselves. It is increasingly the case that, where complex problems are under discussion with a student, their parents, when they too are involved in trying to help, may seek the Counsellor's guidance.  This raises a new range of potential issues and responsibilities for the Counsellor and the school to navigate. 

Our advice is that a school should develop a written protocol which describes all these various matters as straightforwardly as possible and which is available for parents, students and staff to read and which is kept under review for future revisions, as necessary.  Such a protocol will be of help to guide all concerned in these sensitive situations, and will also assist to protect the school in the event that its actions (or inactions) in this area are ever challenged.