Law for School Counsellors & Guidance Officers QLD 2024

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Program

9.00      LawSense Welcome

9.05      Chairperson’s Remarks

Brian Day, A/Manager Guidance Services, Metropolitan Region, Department of Education Queensland; Immediate Past President, Queensland Guidance and Counselling Association (QGCA)

9.10      Disclosure of Student Counselling Information: Navigating Consent and Duty of Care and Examining When You Can Share Within the School, Withhold from Parents or Disclose Against Student Wishes

Outlining Key Obligations, Including for Psychologists, Non-Psychologist Counsellors, and Social Workers in Schools

• Outlining changes in legislation, expectations and enforcement of privacy and confidentiality for school counsellors
• Outlining professional obligations and difference between psychologists and non-psychologist counsellors
• Examining how current duties to your employer affect your privacy and confidentiality obligations towards the student
• Navigating the wishes of the student or parent for the counsellor not to disclose or share information

Ownership of Files

• Examining rights to files, including notes, diaries and communications

Student Capacity to Consent to Disclosure – Mature Minors

• Examining the key elements of informed consent
• How is age considered in assessing consent in different circumstances?
• How does age affect considerations of consent where the student is between 12 and 14?
• What level of information is required to make it “informed” when dealing with mature minors?

Sharing Information Within the School

• Understanding the extent to which you can share information with teachers and school leaders without consent.
• Sharing reports from external experts
• Exploring “work-arounds” you can implement to address the school’s duty of care, but preserve privacy and confidentiality obligations

Sharing Information Outside the School

• Sharing information under applicable legislative sharing provisions [outline different states]
• Sharing information with external experts

Providing Information to Parents/Guardians Without Student Consent

• Exploring circumstances where you would be able to provide information to a parent without student consent

Tracey Jessie, Principal, Jessie Lawyers; Former Principal, Education Queensland

10.10    Break

10.30    Family Conflict: Navigating Parent Separation, Family Law Changes, Domestic Violence Orders and Subpoenas

Understanding Agreements and Court Orders

• Understanding agreements that can be made between parents and the limits of the obligations they can impose
• Outlining how Family Court Orders can:
  • dictate the obligations of parents, including consequences of non- compliance
  • impact school obligations
• Examining the impacts of legislative changes including those regarding:
  • the making and varying of parenting orders and what is considered
  • removal of the presumption of equal shared parental responsibility
  • enforcement of parenting orders
  • introduction of ‘harmful proceedings orders’
  • requirement for Independent Children’s Lawyer (ICL) to meet with a child and give the child an opportunity to express a view
• Understanding and interpreting Family Court Orders and parenting agreements including:
  • Interim Orders
  • Final Orders
  • the difference between Family Court Orders and Parenting Plans
  • orders regarding parental responsibility and living with/spending time with one parent or the other
  • responsibility for day-to-day and longer-term decision regarding the child
  • understanding parent rights and responsibilities where there are no court orders or any written agreement/arrangement
• Learning from examples of different Court Orders and Parenting Plans

Navigating Domestic Violence Orders and Obligations Where You Suspect Domestic Violence / Coercive Control

• Examining common orders made in AVO’s/DVO’s in the context of parent relationship breakdown
• Do they override other orders, such as interim Family Court orders?
• What steps should you take to ensure that the AVO/DVO is current?
• Understanding your obligations where you suspect domestic violence or coercive control
• What evidence do you require before escalating/reporting

Parent Separation – Consent to Counselling and Rights to Information

• Exploring what parent can consent to student counselling where there is family separation. When do you need consent from both parents?
• Understanding parent rights to information where there are no Court orders:
  • should information provided to one separated parent about counselling be provided to the other? What if the student or other parent objects?

Objecting to Subpoenas/Information Requests

• Examining key considerations in deciding to object to production of subpoenaed documents or information requests
• Dealing with the subpoenaing party lawyers to reduce the scope of documents caught by the subpoena
• Understanding options to legally object to a subpoena, reduce its scope or limit access to documents
• Exploring circumstances where you might object to a subpoena from the Independent Children’s Lawyer
• What should be contained in your communication to the Court regarding your objection?
• Obtaining payment for time spent and photocopying to deal with a subpoena

Eustacia Yates, Special Counsel, Corney & Lind Lawyers

11.30    Examining Best Practice Note-Taking, Record Keeping and Storage in the Digital Age

Key Principles and How Notes Have Been Used in Legal Proceedings

• Outlining key principles to apply in note-taking and record keeping by school counsellors
• Understanding how note/lack of notes has been used against counsellors in proceedings – case studies
• Examining key aspects of notetaking to meet legal risk and avoid criticism by Courts:
  • level of detail or clarity
  • ensuring you cover key aspects
  • “loaded” words from which inferences could be drawn about the writer
  • recording conversations and dealing with hearsay
  • communications with external professionals
  • recording your hypotheses, investigations, conclusions and setting out the basis of opinions
  • making changes to notes after they were originally written
• Naming or referring to other individuals in case notes

Optimising Digital Record Keeping and Understanding Pitfalls

• Reviewing the different types of records to assess, integrate or manage in record keeping systems:
  • paper records
  • records on electronic note-taking systems
  • notes or calendar entries on work or personal devices
  • other communication media including texts other electronic messages between staff and reports from external experts
• Understanding the legal rights and obligations regarding messages on personal devices or apps or personal note-taking
• Managing areas of potential legal exposure:
  • cutting and pasting from previous records
  • lack of integrated records/disparate records
  • records on personal devices
  • access permissions and protocols
  • storage and retention of records
• Identifying best practice in using electronic record-keeping to minimise legal exposure

Case Studies: Note-Taking /Record Keeping Case Studies in Different Areas

• Learning from note-taking /record keeping examples and case studies in different areas – understanding the extent of notes, aspects to record and examples of good notes versus bad notes

Katie Clark, Partner, MinterEllison

12.30    Lunch

1.10      Chairperson’s Introduction

Karen Roman, Head of Junior School, Canterbury College

1.15      Transgender/Gender Fluidity Update: Examining Recent Cases Against Professionals and Navigating Students with a Disability

• Exploring circumstances faced by counsellors in supporting students regarding gender diversity
• Examining recent cases where patients have commenced proceedings against their therapists/advisors including:

• • Langadinos’ case Australia
  • Cass Review, Interim Report UK [preliminary findings that doctors felt pressured]
  • Tavistock clinic class action (UK)
  • Chloe Cole Case (US)

• Understanding implications for schools:
  • understanding the impacts of recent decisions on student consent
  • examining to what extent your facilitation of a student’s transitioning can expose you to potential claims later on
  • are you still liable even if you/ the student has been following the advice of external professionals?
• Navigating rights and obligations where the student has an intellectual impairment, disability, or is neurodiverse
• Exploring best practice policies to support student and manage emerging legal exposure

Annie Smeaton, Partner, Cooper Grace Ward Lawyers

2.15      Student Disability: Navigating Diagnosis, or Lack of Diagnosis and Developing Reasonable Adjustments

Rights of the School to Determine Adjustments Versus Experts

• Understanding the rights and responsibilities of the school versus health experts to determine what the student requires to meet the diagnosis or disability

Reasonable Adjustments Case Studies – Disability Affecting Behaviour

Examining the Extent of Reasonable Adjustments Required, Assessing and Balancing Risk and Examining Options to Decline Adjustments

• Exploring the range of disabilities encountered by schools impacting behaviour or causing significant impacts of students and staff – ADD/ADHD, ODD and other behaviour disorders, depression/self-harm
• Learning from case studies and examples:
  • how should schools interpret and apply obligations to make reasonable adjustments?
  • how should schools approach determining the limits of reasonable adjustments required in each circumstance?
  • balancing impacts on other students and staff
  • managing experts: responding to experts, briefing, and managing school experts
  • determining unjustifiable hardship
  • learnings from school experiences – what has worked well and not so well
• Managing consultation and communications with parents, other stakeholders, and advocates
• Documenting steps and decision making regarding reasonable adjustments to ensure compliance and optimise your legal position

Reasonable Adjustments Case Studies – Learning Disability

• Learning from case studies and examples:
  • optimising assessment of learning needs
  • understanding the extent to which you can make changes to the curriculum
  • exploring the limits of required learning support resources
  • implementing changes to the physical learning environment

Dealing With Challenging Scenarios

• Managing differences in views between experts, parents and the student about adjustments required and what is reasonable, including managing separated parents
• An expert report suggests certain adjustments but the school has no evidence of the student needing the adjustments
• Examining your duties where:
  • you consider there is undiagnosed mental illness
  • there is no diagnosis found but you still feel there is something
• Assessing the reasonableness of one-on-one support
• Considering partial student attendance
• Managing circumstances where parents do not wish adjustments to be made, despite the disability

Megan Kavanagh, Partner, Collin Biggers & Paisley Lawyers

3.15      Break

3.30      Student Crime – Student Assault, Harmful Sexualised Behaviours, Vaping: Navigating Rights and Obligations in Supporting Students, Investigations and Reporting

Legal Updates:

• Outlining key laws and duties affecting schools:
  • laws applying to harmful sexualised behaviours including:
    • sexting and new consent laws
    • WHS laws applying to sexual harassment
  • laws and duties applying to assault
  • vaping

Understanding the Extent of School Duties and Obligations

• Examining the obligations of the school where the alleged incident
  • occurred outside school hours or activities
  • involves students from other schools
  • involves students who are 18 or over

Examining When Reporting Obligations to Agencies and Police are Triggered

• Evaluating when legal obligations to report and notify police are triggered
• What steps should be taken where there are only rumours or suspicions of abuse or offending?
• Understanding the obligations and options of the school where the alleged victim does not wish the matter to be disclosed, investigated, or reported or is not cooperative

Dealing with Police

• Police interviewing students or staff:
  • what are a school’s rights and obligations to participate?
  • what are the rights of:
    • the alleged student perpetrator
    • potential student witnesses that police wish to interview
    • supporting a student or participating in police interviews – key matters to consider
  • Examining your rights and obligations in meeting requests for documents or other material from the police.
  • Providing a witness statement and giving evidence to police – what is your exposure and how should this be managed?

Navigating Particular Challenges for School Counsellors

• Harmful sexualised behaviours and assault:
  • understanding the role of the school counsellor in supporting the alleged survivor and/or alleged perpetrator
  • Examining potential risks and conflicts where the school counsellor is involved with both students
  • Understanding your duties where agencies will not act, or they close the case and you still consider there are ongoing issues
• Dealing with requests from students that you not inform their parents
• Understanding the extent to which you should or shouldn’t disclose allegations or investigations to school staff members

Allison Inglis, Managing Partner, HBM Lawyers

4.25      Closing Remarks

4.30      Event Close

Presenters / panelists include:

	Brian Day is a dedicated professional with over 20 years of experience in the education sector. He is currently a Senior Guidance Officer for the Department of Education Queensland, Metropolitan Region, specialising in the developmental and primary school sector. He has worked in regional and remote regions of Queensland and New South Wales and has interests in mental health and wellbeing, learning disabilities, engagement and making a positive difference in the lives of children and young people.
	Tracey Jessie is the principal of Jessie Lawyers - a boutique law firm in Queensland. Tracey has over 20 years’ experience including 6 years as a partner in State and National firms. Before studying law, Tracey was a teacher and principal within Education Queensland. Tracey now advises a range of educational institutions, not-for-profit organisations and small to medium business enterprises.
	Eustacia Yates is part of Corney & Lind Lawyers’ Family Law, Schools and NFP teams as Special Counsel. Eustacia she has worked in private firms in both Melbourne, Brisbane and Washington D.C., United States of America. With over ten years’ experience exclusively in family law and six years working outside the law in communications and volunteer roles, Eustacia brings a broad range of both legal and life experience to help you navigate the maze that is the legal landscape.
	Katie Clark is an insurance and risk specialist and has a long history of representing independent schools, churches, not-for-profit organisations, and insurers. She particularly enjoys the work that she does with schools and has been privileged to support some school principals through particularly difficult situations around abuse claims, bullying allegations, self-harm and suicide concerns, as well as mandatory reporting issues.
	Annie Smeaton specialises in employment, anti-discrimination and industrial law. She has extensive experience dealing with proceedings in the Federal Court, Federal Circuit Court, Queensland Industrial Relations Commission, Fair Work Commission, Australian Human Rights Commission, Anti-Discrimination Commission and the Queensland Civil and Administrative Tribunal.
	As part of her education and health care practice Megan Kavanagh provides operational advice regarding child protection, responding to third party court matters, dealing with and responding to parent/client and community complaints. Megan drafts policy and procedure to assist her clients to respond to these matters.

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