[MUSIC PLAYING][a confidential space][ethical considerations when counselingchildren and young people][Peter Jenkins][in conversation with Judith Mulcahy]

[a programme from the School of Health and Social Sciences][MUSIC PLAYING]

JUDITH MULCAHY: Hello.My name's Judith Mulcahy, and I'mprogram leader for the post-grad program Counseling Childrenand Young People here at the University of Wales in Newport.On this DVD, you'll see me talking to Peter Jenkins.Peter is a senior lecturer in counsellingat the University of Salford and the author of several books

JUDITH MULCAHY [continued]: on the legal aspects of counselling and psychotherapy.Formerly a member of the BACP Professional Conduct Committee,he's currently a member of the UKCP Ethics Committee.His most recent book, coauthored with Debbie Daniels,is Therapy with Children: Children's Rights,

JUDITH MULCAHY [continued]: Confidentiality and the Law.Peter came into the studio with me to talk about someof the ethical considerations thatneed to be kept in mind when workingwith children and young people.And the first question I have for himwas simply to ask what he saw as beingthe differences between counseling adults

JUDITH MULCAHY [continued]: and counseling children and young peoplefrom an ethical standpoint.

PETER JENKINS: OK.And from an ethical point of view,I think that the major starting point is, obviously,that children are more vulnerable than adultsin a number of different ways, dependingupon their age, their stage of physical development,their emotional development, the level

PETER JENKINS [continued]: of cognitive understanding.And so there's always been a viewthat, in terms of therapeutic work with children,there need to be additional safeguards and oftenadditional training for therapists workingwith children and young people in order to make surethat they're able to take part in therapy

PETER JENKINS [continued]: in a way that meets their needs but also doesn't place themunder particular stresses or strains thatwould be to their disadvantage.

JUDITH MULCAHY: So what sort of things should such a traininginclude, would you say?

PETER JENKINS: In terms of the competence of therapistswho work with children.And I suppose it might be useful to distinguish between childrenand young people.

JUDITH MULCAHY: Mm.Absolutely.

PETER JENKINS: And one suggested definitionis that children as the term relatesto children who are in primary schoolor of primary school age.So roughly up to about 11.And "young people" is a term that really covers childrenfrom the age of about 11 through to 18.

PETER JENKINS [continued]: Obviously the term "child" has a legal definition as well.But sometimes I think it's useful to distinguishbetween the two groups.Because it neatly encapsulates the kinds of broad differencesthat you might expect, so that, in terms of therapy,in terms of the kind of ethical issues that may come up,

PETER JENKINS [continued]: they might be very different for childrenwho are below the age of 11 than a young person whocould be, say, 15, 16, 17, an older adolescent, if you like.

JUDITH MULCAHY: I guess for both of those age groupsthere's a difference between working with themand working with adults around autonomy, or the lack of.

PETER JENKINS: Certainly.I mean, the way that young people's entitlement to therapyis perceived is-- I suppose the rule of thumb beingthe younger the child, then the greater the responsibilityon the adult to have an overview,to be mindful of their particular needs,

PETER JENKINS [continued]: to perhaps make decisions which to some extentare made on behalf of the child or the young person.I guess that would also apply for children and peoplewith learning disability, again, dependent upon whatthe nature of that disability is.It's a very broad phrase.But not to assume that the child or young personwas necessarily capable of entering

PETER JENKINS [continued]: into therapy at the same level as perhaps an adult.

JUDITH MULCAHY: And I guess there'san issue there around their chronological ageand their developmental stage as well.

PETER JENKINS: Sure.Yes.Yeah.Because, I mean, what we do know issort of-- although we can be awarethat there are developmental stages--and we can think about Piaget and Kohlbergand Erikson and so on.But they don't necessarily follow throughin kind of neat packages.And it may be that children of a similar chronological age

PETER JENKINS [continued]: have very different emotional needsand have very different levels of understandingand self-awareness, empathy, and so on.And it's really important for therapists to be aware of thisand to attune their approach to the needsof the child or young person that they're working with.

PETER JENKINS [continued]: And I think also that there are flaws perhapswithin the therapeutic model itself,which is very much, I mean, as we're doing now,it's a face-to-face encounter.It's primarily verbal.And certainly my experience, and the experienceof many therapists, is that for many children and young people,talking in this kind of way is not necessarily the best

PETER JENKINS [continued]: way of making psychological contact,that something that's more active,something that's more indirect, perhaps,is going to be much more effective.In fact, what we as therapists placegreat credence on, which is one of eye contactand face-to-face kind of contact in the way,isn't necessarily going to work with,

PETER JENKINS [continued]: perhaps, a very inhibited or withdrawor preoccupied young person.

JUDITH MULCAHY: Absolutely.And I would acknowledge that and saythat actually using or trying to match communicationmethods of children, young people,is vital in such therapeutic encounters.So I'm wondering, Peter, we're talking about their autonomy.It brings to mind the other adults.We were talking about being in their world.

JUDITH MULCAHY [continued]: Parents is a great tissue, isn't it?

PETER JENKINS: Sure.

JUDITH MULCAHY: So is it the casethat you're saying that as a primary child wouldneed parental permission to enter into such a contract?

PETER JENKINS: Well, I think that's the working assumption,that if we move into the whole area of who gives permission,if you like, for children and young peopleto become involved in counseling and therapy--because, obviously, children and young peopleare by definition dependent upon adults

PETER JENKINS [continued]: and other caretakers in their lives.And the impact of the Gillick decision,certainly with young people under the age of 16 in Englandand Wales and under statute in Scotland,I think has opened up the door to offeringconfidential counseling to young people under the age of 16.

PETER JENKINS [continued]: And certainly that's the view of the Children's Legal Centre.And that's, I think, been widely understood and practicedsince the mid 1980s.What Gillick doesn't clarify is whatis the lowest age, if you like, that a young person canhave this mysterious quality of sufficient understanding.It's interesting we don't apply this test to adults,

PETER JENKINS [continued]: but there you go.But the rule of thumb, I think, for many therapistshas been that it's unlikely that a child in primary schoolwould have this sufficient understanding.If we translate that to mean in terms of, say, Piaget's schema,this would be what is called abstract thinking,

PETER JENKINS [continued]: the ability to be able to look at somethingfrom another person's point of view,to anticipate the consequences of your own actions,and to be able to look at it in the roundrather than simply from this is meand this is how I feel and this is what I want.So the issue of parental involvement or permission,

PETER JENKINS [continued]: I think, becomes much more relevantworking with children in primary school.But there is a recent legal decision that actuallyturns some of that on its head.And this surprisingly is the case of Noami Campbell.She's an unlikely heroine when it comes to confidentialityand therapeutic work.

PETER JENKINS [continued]: But Naomi Campbell won a very important casein the House of Lords.You might remember she was photographedcoming out of a Narcotics Anonymous meetingby the Daily Mirror.And she sued for breach of privacy, and she won her case.And essentially the case was that her attending a therapysession was a private matter.

PETER JENKINS [continued]: Now, this is really interesting, because youcould use that piece of case law, which comes from the HumanRights Act, to argue that for a child or a young person,attending counseling is also a private matter.And, controversially, parents don't necessarilyhave the right to know if a child in primary school

PETER JENKINS [continued]: or a young person in secondary schoolis going to counseling unless the child or young personmakes it very clear that they agree to that.I mean, that's a particular reading off the Naomi Campbellcase, but it certainly throws things into the air, I think.I mean, because the Gillick case,we've been working with this for, what, 25 years or so,

PETER JENKINS [continued]: and I think a lot of people have a reasonably roundedunderstanding of that.But the law changes.This is not a fixed scenario by any means.And I think we also have to look at the implication of new caselaw and new pieces of legislationas they come onto the scene.

JUDITH MULCAHY: So what would you say to schools?I mean, I have reason to have experiencedquite a lot of counselors recentlywho've been working at secondary schools, and noteven in primaries, actually, where school staffhave a real issue with this, with parents not knowingthat their children are in counseling.What do you have to say about that?

PETER JENKINS: I think this is a real tension.And we did some research in Manchester a few years ago,and this was a national survey of secondary schools providingcounseling both in England and in Wales.And we found that something like 3/4 of secondary schoolsprovided what they described as individual therapeutic

PETER JENKINS [continued]: counseling, which was a very welcome finding.The most surprising thing that we did findwas that 40% of secondary schoolsrequired evidence of parental permissionin order to provide this individual therapeuticcounseling.And this was far higher than we could reasonably have expected.

PETER JENKINS [continued]: So there's a real tension, I think, a real conflictbetween the way that many secondary schools wouldwant to operate.And I assume, from their point of view,what they would want would be to have good, close workinglinks with parents, I mean, for it to be a family-oriented,a family-friendly school.But what does strike me is that within the education system

PETER JENKINS [continued]: and for the teachers as a profession,there seems to be a fairly limited understandingof the rights of children and young peopledistinct from the rights of parents.So I think there is a temptation or, perhaps, a pressure,to offer counseling in a way where

PETER JENKINS [continued]: parents are seen to have an oversight of thisand the parents can-- if necessary, theycan give permission or even, perhaps, withdrawpermission for their child or young personto go to counseling.From the schools point of view, thismay seem to be the school working very much in harmonywith parental wishes.

PETER JENKINS [continued]: The difficulty is that what that doesis that it provides parents with the right of vetoover the separate rights of the child or young personto access counseling.And I guess for some young peoplethat it's actually-- I mean, we knowfrom the findings within Wales recently

PETER JENKINS [continued]: that it's family issues that bringyoung people into counseling.And there may be a conflict of interest,that the young person concerned is dealing with a bereavementor there are issues within the family.They need a separate, private, confidential spaceto talk about that.Parents, and I speak as a parent myself,

PETER JENKINS [continued]: can feel very threatened to thinkthat, well, our dirty linen is being washed in public.What is my child saying?What is the counselor doing with this?And the temptation is perhaps to close it down.

JUDITH MULCAHY: Absolutely.

PETER JENKINS: And that's very distinct from what goeson other professional settings.Within social work, within medicine and nursing,there's a very clear understandingthat the child has right and needs whichare absolutely distinct and separate from those of parents.Not that you deny parents.I'm not trying to write parents out of the equation.

PETER JENKINS [continued]: But as a social worker, you neverassume that what the parent wantsis automatically in the child's best interest.You look in the two things quite separatelyand make an assessment.Similarly with medical procedures,what the parent wants and what the child is asking for,you have to consider both.So there is something of a lacuna here,I think, within education policy and maybe, perhaps,

PETER JENKINS [continued]: within the professional training of teachers.

JUDITH MULCAHY: Mm-hmm.So not only are we having to educate teachersas to the nature of therapy but actually to these issuesas well.

PETER JENKINS: I think so.

JUDITH MULCAHY: They are very real.

PETER JENKINS: Yes, yes.I mean, the term "partnership" is used very widelyand, perhaps, overused, but I think thereis a job of work to be done.And you can see it actually happening and taking placewhere counseling is well-embedded within schools.And counselors have worked reallyhard to try to convey what they do,

PETER JENKINS [continued]: what counseling is about, the benefits of counseling,and why they need to work in a particular way, why theyneed a room in which to work.I mean, very often teachers will say,well, yes, you can have a room.But their concept even of a room is necessary, a kindof a private space in which--

JUDITH MULCAHY: Absolutely.And sometimes they don't understandwhy they can't rush in and come and get some materialsor why there can't be a window that everyone can look throughas they're going past, all those sorts of issues, aren't there?Let's come back to your point, Peter, about children's right.I know here in Wales that the UN Rights of the Childis paramount in WAG thinking. [WAG Welsh Assembly Goverment].

JUDITH MULCAHY [continued]: So I'm wondering how you see that,the tension between interpreting those rightsagainst the responsibility of other adultswho are looking after them.

PETER JENKINS: Mm-hm.Well, I think it's a very welcomed step within the Welshcontext.My understanding is that the Welsh governmenthas said that the UN Convention on the Rights of the Childin 1989 is going to be the key referencepoint in terms of policy.And after that is develop the Seven Core Aims in relation

PETER JENKINS [continued]: to children and young people.And this has been a long time coming.I think both the fact that within the fourparts of the United Kingdom that there is nowchildren's commissioners in all of those-- interestingly,England was the last one to appoint the children'scommissioner.And the UN convention is an international statement

PETER JENKINS [continued]: about the rights of children, so it's very welcome development.However, I do see some limitations with the UNConvention as a statement, if you like,about the rights of children.Essentially it's about the right of children and young peopleup to the age of 18 in terms of protection, prevention,

PETER JENKINS [continued]: and participation.So there are three broad areas.And, clearly, these are very important.They're from, if you like, a welfare perspective,adults needing to provide for children and young people.What I think is not well developedwithin the UN convention are issues around autonomy.

PETER JENKINS [continued]: And various people have argued that within the UN conventionthere is a notion of the evolvingcapacities of the child which relatesto the debate about autonomy.So what I would point to, perhaps,within the emphasis on the UN convention-- whilethis is very well welcome and it'ssomething that's not paralleled, for example,

PETER JENKINS [continued]: within the English government-- that thereare some limitations to this.It's still set very firmly within a welfare perspectiveand adults into the perspective about the needs of children.And I think that the case for developing children's right

PETER JENKINS [continued]: to autonomy is something which-- and whether that comes outof a reinterpretation of the UN conventionor whether that comes from a different point of the compass,I think, is something which we need, perhaps,to leave open for the moment.

JUDITH MULCAHY: Yeah.And in practical terms, within schools, for example,or indeed when working in other agencies,the involvement of other adults and other servicesis often a part and parcel of the work that we do.So how do you see the maintenanceof children's rights versus the need to sometimes share

JUDITH MULCAHY [continued]: information with other helping agencies,sometimes parents, sometimes indeed teachers?

PETER JENKINS: Yes.I think there has been a huge shift within, perhaps,the last five or ten years that the information-sharing agendahas really grown in terms of its volume and its importance.And we can trace this back to-- speakingas an ex-social worker, I mean, the whole series of child abuse

PETER JENKINS [continued]: inquiries going back to Maria Colwell in the mid 1970s.And the emphasis in each report was the importanceof sharing information between agencies and so on.And out of that, eventually, the most recent of these reports,I suppose, would be the Victoria Climbie inquiry report.

PETER JENKINS [continued]: And again, information wasn't shared and wasn't acted on.What that has produced, I think, hasbeen some very important government initiatives,such as contact point and the common assessment frameworkand the importance of professionalsworking across professional boundariesand sharing information for the benefit of the child.

PETER JENKINS [continued]: I think that there is a risk, again,that within that process, the needs and rights of the childcan on occasion be overlooked.And where a child is happy for informationto be passed on, assuming that they have some grasp of wherethe information is going to and who is going to be actingon this and what the outcomes may be,

PETER JENKINS [continued]: that very often children and young peopleare somewhat swept along by a processof information being passed around to different agencies.And that's one of the areas wherea sense of lack of control on their partbegins to be experienced very strongly.

PETER JENKINS [continued]: So you have a tension between the needsof agencies to communicate and the position of the childor young person within that.

JUDITH MULCAHY: Where once again theydon't have autonomy, in fact.

PETER JENKINS: Well, when I suppose certainlywithin the counseling setting, it'sthe offer of confidentiality.I'm not arguing that confidentialityis open-ended or total.But it's that awful promise of confidentialitythat may mean that the child discloses abuse or difficultiesin relationships or whatever, or perhaps risky activity

PETER JENKINS [continued]: that they're involved in.Agencies may then respond to that informationand it's then shared, and the young personis then swept along within a process which theydidn't necessarily sign up to.Because it's difficult for a child or young personto fully understand what the outcome is going to be.

PETER JENKINS [continued]: It's difficult for parents and adults, I think, to do that.

JUDITH MULCAHY: Absolutely, yeah.

PETER JENKINS: With the information-sharing agenda,it's now very firmly established.But, again, even from a policy point of view,it's interesting that research has suggestedthat within the '70s and into the 1980s,a lot of the child abuse inquiriesindicated failures of communication and agencies

PETER JENKINS [continued]: not sharing information.The more recent inquiries over the last decade and a half,it's suggested that it's much less about failureto share information and it's much moreabout assessing the significance of the informationthat agencies have.And that's a very different argument, I think.

PETER JENKINS [continued]: Because that really points to social workers and teachersand other professionals being able to accurately usethe information that they have rather than saying,I haven't got enough information to make a decision.So I think there is a flaw, if youlike, within the whole information-sharing agenda,that bureaucracies are very hungry for information.

PETER JENKINS [continued]: And the indication is that many social workers spend,what, 80% of their time in front of a computer screenfilling in forms, doing assessments, and so on.And more and more information doesn't necessarilylead to better quality assessment or even moreeffective child protection interventions.

JUDITH MULCAHY: Absolutely.And this brings us to sort of the nub of it, I think,this tension between child protectionand children's rights.And what are the risks involved in not passing somethingon that we're thinking we should or-- we may pass onor we may not.Because many counselors find themselves in a situation

JUDITH MULCAHY [continued]: where they know that they are supposedto pass that information on by safeguarding policiesthat they work to.But by doing so, they will be possibly ensuringthat child loses its only source of support.

PETER JENKINS: Yes.Yeah.I think it's an extremely complex situation.I mean, I wouldn't like to underestimatethe difficulties that are faced by the counselorin that situation or by the child or young person,by the family, by the agencies which are thereto safeguard the child.I mean, it is a very, very difficult situation.

PETER JENKINS [continued]: I think where a child is making a disclosureand they give their consent to the information being passedon, then hopefully the outcome of that processwill be as positive as it can be.I mean, the intervention by children's services, perhaps

PETER JENKINS [continued]: the interviewing by the police, if it goes to court,I mean, all that this can have a very difficult and profoundeffect on the child and family relationships.It can lead to re-traumatizing the child to some extent.But hopefully that will be a positive route to follow.

PETER JENKINS [continued]: I think the difficulty that I perceiveand that many counselors bring to my attentionis where the child makes a disclosure,but they also are saying at the same time,but I don't want this information to be reported.And that's the difficulty.And, of course, one answer is to say,well, this is the contract.

PETER JENKINS [continued]: This is the consent that we agreed right at the beginning.I hear what you're saying about your reluctancefor the information to go on, but I'm obliged to do that.Now, my concern is that the young person's autonomyin that situation is in danger of being eclipsed.

PETER JENKINS [continued]: And I think that also the way that perhaps organizationsand policymakers understand the notion of a disclosureis perhaps very different to the waythat therapists might understand that,without wanting to sound preciousor as if we need to be mavericks in some way outside

PETER JENKINS [continued]: of the established processes.But I think the evidence is that where young people discloseabuse or major difficulties in terms of relationshipsor risky behaviors they're involvedin that very often they do that on the basisof their own pragmatic assessment of the relationshipwith the person to whom they're disclosing.

PETER JENKINS [continued]: They've made some kind of assessment.This teacher or this family member,this counselor perhaps, they strike me as being soundand that I can tell them this.They won't be shocked.They will understand.They will help me in some way.So it's really in terms of their interpersonal relationshipthat they're making what is a very risky decision,

PETER JENKINS [continued]: because they don't know how the person is going to respond.If the counselor immediately then feelsobliged to pass the information on,and the young person is not giving them consent,then that's a very powerful messageto the young person in terms of, I suppose,

PETER JENKINS [continued]: their capacity to judge integrity or truth-tellingor fidelity or whatever kind of frameworkwe want to put on that.And I think what is very challenging isfor the counselor or therapist to workwith the ambivalence of the young personin making that disclosure.Again, I think for many therapists

PETER JENKINS [continued]: a disclosure is not a discrete event.It's not this happened on this date with this person.From my own experience, I think very oftena disclosure is fragmentary.It's elusive in the sense that you can kind of see somethingcoming down the road towards you.You have a sense of what this might be about.

PETER JENKINS [continued]: There are things unsaid which areas powerful as the actual description of, perhaps,an abusive incident or whatever.And it's also sequential, that the information comes outin bits and pieces.It doesn't come out as a finished job lot.And as a therapist-- particularly where

PETER JENKINS [continued]: the young person is saying, I'm telling you this,but I don't want you to pass it on.Because I don't want my step-dad to go to jail.I don't want to go into care.I don't want the family to be broken up,all these concerns, which may or may notbe based in fact-- that it's reallyimportant for the therapist to acknowledge thatand to work with that.I'm not arguing necessarily that therapists should never

PETER JENKINS [continued]: report in that situation.It depends on what is the risk to the childand what is the risk, perhaps, to other siblingsin the family.And sometimes these risks can be very severe.But there needs to be the professional spacefor the therapist to work with that.It's much better for the child to make a disclosureand for them, perhaps, to make their own report to child

PETER JENKINS [continued]: protection services, or to do it with the supportof the counselor, rather than it to be conflicted disclosure.The very real risk is at the child makes a discussion,the therapist acts on it without the child's act of consent,the risk I would suggest is the child

PETER JENKINS [continued]: then retracts the disclosure.I mean, it's much easier to have informationabout the number of disclosures or the numberof social services interventions and children on childprotection plans and so on.The scope of retraction, I mean, anecdotallyI would think is very significant.

PETER JENKINS [continued]: But it's a very personal event, and it's notlikely to appear in any child protection statistics.

JUDITH MULCAHY: That's a very interesting point you make,and I would agree with you that therea huge number of retractions, certainly mine and others'experience.And, of course, when working within an organization, whattends to happen is that the counselor is told,once there's been a disclosure, that they have to actuallyactively stop the session, record what's being said,

JUDITH MULCAHY [continued]: and, in effect, stop therapy.Because they're not allowed to continuethe therapeutic relationship whilst thereare child protection proceedings, whichgoes against all that you've just been explainingabout the therapeutic relationship and the modelthey have for future intersubjective exchanges

JUDITH MULCAHY [continued]: with anybody.

PETER JENKINS: Yes.Yeah.My colleague Debbie Daniels, the coauthorof the book Therapy with Children,I think she would say from a psychodynamic point of viewis you've actually crossed a boundary at that point.And certainly, from a legal point of view,the therapeutic process stops.And what then happens is something

PETER JENKINS [continued]: called pretrial therapy.So, again, as you say, it's coveredby very specific protocols.And that's understandable.Because in relation to the needs of the court process,then the Crown Prosecution Serviceneed to be very aware of the nature of the therapy that'sgoing.It's needs to be supportive, that it doesn'trehearse evidence, doesn't contaminate the evidence,

PETER JENKINS [continued]: and so on.The myth that therapy actually hasto stop physically at that point hopefully is no longer current.But I think it's a very good illustration of wherethe therapeutic process, which is a very-- it's an intense,it's an interpersonal relationship whichis there to help the young person to explore

PETER JENKINS [continued]: their material and their emotionsand feelings in the situation-- becomesovertaken by a much more public process, if you like.So, as you say, the records that the therapists keep thenbecome records of document, recordswhich are accessible within the court process.

PETER JENKINS [continued]: And so the whole nature of the therapeutic work, I think,really has to change.No doubt the young person will experience that as well.Because the message is, well, theseare things which we can't really talk aboutuntil after the court case.Whereas up until that point, then thiswas something which the young person would

PETER JENKINS [continued]: be able to talk about and encouragedto talk about if that was what theywanted to bring to the therapy.

JUDITH MULCAHY: And certainly-- youwere talking about psychodynamically in attachmentterms, I can well see that that young person will then go backinto shame mode rather than any sort of reattunement thatshould be happening.

PETER JENKINS: Yes.Yeah.

JUDITH MULCAHY: In terms of pre-trial therapy,my understanding also is-- correct me hereif I'm wrong-- that there has been a ruling thatsays that actually the needs of the child are paramount now.So whereas all of this may be the case,we still should put the needs of the child first.I would certainly agree.Again, from the experience that not all agencies or police

JUDITH MULCAHY [continued]: or solicitors understand this, but that actuallyhas been said somewhere.

PETER JENKINS: It's very clear, Imean, in the pre-trial practice guidancefrom the Crown Prosecution Service in 2001,also for vulnerable adults.And the most recent guidance is called achieving best evidence.And it's absolutely clear that the needs of the child,or if it's a vulnerable adult, mustcome before the needs of the legal system.

PETER JENKINS [continued]: That is surprising that there are stillpockets of resistance to this.I still hear stories where young peopleare denied access to therapy on the groundsthat the Crown Prosecution Service wouldn't allow it.So there seems to be a communication problemwithin the criminal justice system in terms

PETER JENKINS [continued]: of getting the message out.

JUDITH MULCAHY: And I think parents are oftentold this as well by other people whowork within the system, which then stops themfrom bringing their child to therapy,which is very difficult.

PETER JENKINS: Mm-hm.

JUDITH MULCAHY: OK.We touched therapy to run on record-keeping and note taking.And I know this is a huge area.

PETER JENKINS: Yeah.

JUDITH MULCAHY: And in that specific case,again, it might be useful to just reiterate the rightsaround records and notes.And again, it's my understanding that only a judge has the rightto subpoena notes.

PETER JENKINS: The whole area of note-taking,of who has access to notes, is probably--I think after confidentiality, that is probablythe major area of concern to therapists workingwith children or with adults.And there is massive uncertainty now.This has really been, I think, brought

PETER JENKINS [continued]: about by the introduction of the Data Protection Act of 1998.Prior to that, where therapists were keeping records,it was very much a private concern.And I would imagine that for many clients that theyneither knew that records were being keptor wouldn't have thought, well, Iwould like to see what's being written about me.

PETER JENKINS [continued]: Even if they asked for that, the chancesare it could've been turned down.There was a very important case broughtby Graham Gaskin, who was a young man in careof Liverpool Social Services.And, I mean, it's quite poignant, because, I mean,I was a social worker at the time when he was around.Fortunately, I wasn't his social worker.And he wanted access to his social work records,

PETER JENKINS [continued]: and Social Services said, no, you can't have thembecause they're confidential.I remember having discussions with young people in care.I mean, it's a very similar kind of discussion.And my response would be, well, anything youwant to know, ask me and I'll tell you.And they would say, no, I want to read the file.I'd say, you can't do that.It's confidential.

PETER JENKINS [continued]: So confidentiality was something that, as a social worker,I could shelter behind.And Graham Gaskin, actually-- I mean,it was an unconventional solution.He broke into Social Services and stole his records.He read them and returned them.I'm not suggesting that they do that.But also, more importantly, he took his case

PETER JENKINS [continued]: to the European Court of Human Rights.And it was clear that he was goingto win, at least in part, this court case,So it's very interesting.From 1988, suddenly professional recordsheld by social workers, teachers,and doctors-- which had been confidentialin [INAUDIBLE] up until then-- suddenly became accessible.

PETER JENKINS [continued]: And you have access to social work records,to education records, and to medical records.The door swung open.And I think that from that point that certainly professionalsrealized that if they recorded something,they had to record on the basis that the client, the patient,the service user, in principle could read it.

PETER JENKINS [continued]: And it's a very salutary disciplineto do that when you know that you will beaccountable for what you write.What then followed was the Data Protection Act of 1998.And that extended this principle of client accessto electronic records and to many, but not all,forms of handwritten records.

PETER JENKINS [continued]: And I think the cultural impact of this on therapyhas been absolutely massive, so that most therapists workon the principle that their recording, in theory at least,is accessible to clients and work within that framerather than to the idea that, well, this is private.This belongs to me.

PETER JENKINS [continued]: This is something the client will never be able to access.So it's a very powerful discipline, a very useful one,I think.So that's one way in which clients can access records.The second route of access is reallythrough the legal system.And courts access to records can be made by judge's order.

PETER JENKINS [continued]: Sometimes the police will try to access records,formally or informally, with authorityor with more questionable means on occasion.And this is really to be used within criminal prosecutions.Or, quite often, solicitors will also try and access recordsfor the purposes of using them as evidence

PETER JENKINS [continued]: in civil litigation, perhaps claims of workplace stressor whiplash injury and compensation cases and so on.It's a long-winded answer, but, I mean,there are different routes of access to records.And what it has shown, and thrown into very sharp relief,is that counseling recording is very singular.

PETER JENKINS [continued]: It's a distinct professional culture.It's very different from medical recording,that it often doesn't have the kind of factual detailthat I think perhaps judges or police officers or the CPSthink that it should have.

JUDITH MULCAHY: And that in itselfcauses difficulties, because they'reprone to interpretation.And I know of records that have been-- counselorswho found out their records have beenused against their clients.And that's that something quite difficult, isn't it?

PETER JENKINS: Yes.Yeah.But, again, I go back to the notion of therapybeing a very private activity between therapistsand the client.Obviously it takes place in a context of an agency.But by definition, it's a private interaction.And that notion of privacy and confidentiality of boundaries

PETER JENKINS [continued]: is to my mind crucial for the clientto feel safe enough to disclose very personal, verysensitive material, or very often, as you say,very shaming material.And what can happen is that the records of that encountercan be taken out of context and then usedfor very different purposes.

PETER JENKINS [continued]: So for the client who perhaps is bringing a case for workplacestress, for example, against their employer,should those counseling records be fed into that legal process?Then the defense solicitors for the employerwill no doubt be looking for material which

PETER JENKINS [continued]: will invalidate the claim.So the fact that the employee hasa history of receiving psychiatric help, a historyof anxiety, of depression, being on medication,perhaps using illicit drugs.Perhaps there's childhood experiences.I mean, any of that material can and will

PETER JENKINS [continued]: be a used within the court process,and very often it's not to the client's advantage.Some clients may feel that counseling recordscan be used to their advantage.I mean, for example, the opposite instanceis where somebody wants to bring a criminal prosecution

PETER JENKINS [continued]: against an alleged abuser.And so it's a child or a young personor an adult in that situation.So their view may be, well, the records of therapywill help in that process.They may or they may not.And there may well be material in thatwhich actually can be used to undermine their status

PETER JENKINS [continued]: as a credible witness.And, of course, the real tragedy isthat for many of our clients, the effects of abusehave led to emotional difficulties or a needfor psychiatric care or support.And all of this tends to then contaminate or colortheir status as a witness in a court of law.

PETER JENKINS [continued]: And so we're left with a very low successful convictionrate for cases of sexual assault, sexual abuse,and so on.I mean, the figures are very, very low.

JUDITH MULCAHY: I have worked in an abuse agency.Again, I totally corroborate that.And I think, again, that there's that pension for therapistsin suggesting to clients that they should go forwardwith those sort of cases.Because, as you say, they very oftendon't lead to any prosecutions.But, again, is that our call to make?

PETER JENKINS: Well, I guess it'simportant to acknowledge that for some clientsthat it's extremely important for themto have their voice heard, for them to have their day in courtand for them to be involved in reclaimingtheir status as a citizen, to see justice done.

PETER JENKINS [continued]: This is extremely important.and very therapeutic.And in some cases, this will be the successful outcomeof a prosecution.And I think attitudes within the policeand the Crown Prosecution Servicehave shifted enormously.In many cases they are very actively supporting this.I mean, they're very involved.

PETER JENKINS [continued]: They're very respectful of clientsand aware of the tensions around the role of therapyand record-keeping and so on.But there can be no guarantees, and it's a high-risk strategy,I think.And the risk is always that the client, if unsuccessful,that they may be re-traumatized by a sense of not being

PETER JENKINS [continued]: believed in court and that their alleged abuser is not punishedand that they have been through a very painful processto no great effect.

JUDITH MULCAHY: Absolutely.Coming back to the idea of accessibility to records,it's very pertinent for schools' counselors, Peter,at the moment.Because counseling records are oftenkept as part of the child education records.

PETER JENKINS: Yeah.Yeah.

JUDITH MULCAHY: So, again, there'sa massive tension here between we'repromising confidentiality on the one hand,but actually this is available to, who, other teachers,parents?

PETER JENKINS: Well, again, I suppose it goes backto the case of Graham Gaskin.Because what Gaskin did in winninghis case was to speed up the whole process of accessto specific kinds of records, social work, education,and health records.So, again, I think for counselors in schools,

PETER JENKINS [continued]: there's often a temptation to tryto frame the record-keeping as a personal activity,so that I'm a school counselor, these are my records.They're my records of my therapeutic workwith these children.They're about me.They're about the process.I take them to supervision.Whereas my understanding is that counseling records

PETER JENKINS [continued]: within a school context, which are essentially being carriedout because the counseling is within that educationframework, these are technically part of the child's educationrecord.And as you point out, there is an anomalythat both the child and the parentcan access the records separately.

PETER JENKINS [continued]: And clearly, as a therapist, thatmight mean that you choose to keep very brief,very factual records rather than detailed process recordingor records which in some ways wouldembarrassed or be to the disadvantage of the child.There is a way, as I understand it,of blocking parental access where

PETER JENKINS [continued]: it would be felt to be against the child's interest, yes,that buried within the fine print of the Data ProtectionAct there is the sub-clause that you could quote.But I think, again, you would need almost a therapist'sperception that this is a contentious areaand the child's need for privacy,

PETER JENKINS [continued]: for confidentiality, is distinct from the parent's rightto know.And we're back to that issue that we talked about in termsof almost the child's needs and interests beingsubsumed under those of the parent or the family.And that lack of a wider understanding,

PETER JENKINS [continued]: that both within law and policy, thesecan be very, very carefully separated out.

JUDITH MULCAHY: And, of course, thatcan almost work backwards as well,where a parent or a member of staff,indeed, speaks to a school counselorand more or less insists that such and such a childshould be seen or expresses their concernsor worries about their child, after allthis information-gathering in a backward sense.

PETER JENKINS: Yes.Yes.I mean, talking to school counselors, it's kind of--

JUDITH MULCAHY: Common.

PETER JENKINS: --ad hoc interventions on the corridors.So how is my child getting on?Or, have you seen so and so?I'm very concerned about them.And I guess part of what counselors develop,through working within a complex organization like a school,is how to work with and how to parry

PETER JENKINS [continued]: those kinds of veiled requests for information,or perhaps very direct requests.Because, again, on the one hand, theyneed to have a working relationshipwith their teaching colleagues, with parents.But they need to prioritize the privacy and the confidentialityof the counseling service.And I think that takes enormous skills, if you like.

JUDITH MULCAHY: Diplomacy.

PETER JENKINS: And diplomacy, so that other people canunderstand that it's not a brush off, it's not personal,but I need this in order to be able to do my job.And I think also from the point of view, the waythat young people perceive the role of the schoolcounselor, that to see the counselor chatting and laughing

PETER JENKINS [continued]: with teachers on the corridor, again, a very sensitive childmight misread that and they mightbe hypersensitive to the suggestionthat information is passing without their proper consent.

JUDITH MULCAHY: And, of course, why wouldthey think it was any different to a lot of-- particularlythe most vulnerable children, whotend to have many other services involved with them anywayand are used to information-sharing.

PETER JENKINS: Yeah.Yeah.

JUDITH MULCAHY: Yeah.

PETER JENKINS: Although, again, the researchseems to suggest that where you have a counseling servicewithin a school that's well embeddedthat children and young people begin to appreciate quitequickly the differences between disclosingto a teacher or a member of staffand disclosing to a counselor.And they become quite savvy in terms--

JUDITH MULCAHY: Fine-tuned.

PETER JENKINS: --of what you tell to which personand the limits to which that information may be put.And, again, the suggestion very stronglyis that, particularly for the young people,for adolescents, that when they disclose, when they explore,perhaps, family issues or painful experiencesor whatever, that what is really important to them

PETER JENKINS [continued]: is a sense of having some control over that material.And they judge this in a very pragmatic way.And so the risk is for counselorswho don't manage these boundariesor aren't seen to manage the boundaries in a veryappropriate way, that the counseling service maybe seen, rightly or wrongly, as a very leaky service.

PETER JENKINS [continued]: And young people may then be cautious about using itor about what they're prepared to disclose within that.Because word gets around very quickly, doesn't it,within schools in terms of, well, I told this person,and, bang, it was all around the staff roombefore you could sit down.

JUDITH MULCAHY: I wonder if you see any differences or any sortof specific issues around workingwith LAC children, looked after children.[LAC Looked After Children] I'm thinkingabout we're quite often asked to goto reviews, to write reports.And, again, other services find it quite difficult,CAMS teams in particular, to understandwhy we wouldn't write the same sort of reports as they would.

JUDITH MULCAHY [continued]: And what, if any, involvement do wehave in such a review meeting?

PETER JENKINS: Mm-hm.I think to me the issue would be less aboutthe nature of the client group, in terms of, well,this is a looked after child, as opposedto a child who is, perhaps, a child in needor just a child who has come for counseling.But it's more about the interface, the tensionbetween being part of a multi-disciplinary team

PETER JENKINS [continued]: and being a therapist within an agency context,where your primary focus is the child or young personas a client.Because, again, experience seems to suggest that once counselorsmove into a multi-disciplinary team setting,where there is an expectation that information will

PETER JENKINS [continued]: be shared, that reports will be written-- and, of course,this is crucial to things like the Common Assessment Frameworkand to child protection case conferencesor the working of CAMS, Child and Adolescent Mental HealthServices. [CAMS Child & Adolescent Mental HealthServices]But I think what is often not clear is

PETER JENKINS [continued]: what is the counselor's role within this.They have this information because it's beendisclosed to them by the child.On what authority, what moral authority,do they then pass this informationon to other professionals?And what use will be made of it?And I think the reality is, in many cases,

PETER JENKINS [continued]: not a great deal is done with it.But the information has been fed into this wider contextand is now held by different agencies.And we know that very often there isn't necessarilya practical outcome to this.There may be no intervention.There may be no further action on the part of the agencies.So I'm not sure what the best answer to this is.

PETER JENKINS [continued]: Because the pressures are there, the invitationis there for counselors, particularly school counselors,to get more and more involved in multi-disciplinary teamworkand information sharing.But I think we always have to remember that we're onlythere because of our primary commitment

PETER JENKINS [continued]: to the child or the young person as our clientand not lose sight of that.

JUDITH MULCAHY: Yes.And even being if you, as a counselor,are invited to a review meeting or any meetingof other services.Even if the other services involvedacknowledge your right to remain silent, if you like,you're still hearing other information.And, of course, therapeutically that's also very difficult.

PETER JENKINS: Yes.

JUDITH MULCAHY: Again, it's a two-way process, isn't it?

PETER JENKINS: Yes.

JUDITH MULCAHY: And I think I would certainly--as a therapist, I would always be sharing whatI know with my client so that, as far as possible,we redress the imbalance of power, which is there anyway.

PETER JENKINS: Yes.It is a difficult one, because I think a new model of counselingis emerging.So this, perhaps, idealized modelthat we're used to in the past, whereit's the therapist and the clientand you have a protected therapeutic space-- youdo your work, and your records are contained within that.

PETER JENKINS [continued]: You liaise as little as possible with parents or other agencies,and you do your therapeutic work and work in that way.And we're now in a very different context,I mean, particularly with issues around child protectionsafeguarding, information sharing.The expectation is that therapy is

PETER JENKINS [continued]: part of a tiered system of referrals.So it's tier one or tier two within that kind of referralsystem, that therapists are called uponto be part of case conferences, as you say,to report about the child's situation,to contribute to documents like the Common Assessment Framework

PETER JENKINS [continued]: and so on.And I think there's a very real risk that the counselor isactually pulled out of role.Because the argument then is, well, if as a counselor,if this is the whole series of new activitiesthat you're going to take on, then would itnot be more accurate to call ourselveseducation social workers?

JUDITH MULCAHY: Mm-hm.That's an interesting term.

PETER JENKINS: Well, we used to have education social workersin many local authorities.And it's very clear to the child, to the parents,to the agency that the young person discloses.Then it's almost a conduit of informationthat then goes into a multi-agency setting.And there's no tension, if you like,

PETER JENKINS [continued]: or much reduced tension in terms of,well, I'm telling you this on the basisof my assessment of you as a therapist, you as a person.But there would, perhaps, be much greater clarity.The risk is that what we are calling counselingis, in fact, being stretched into a new and unrecognizable

PETER JENKINS [continued]: role set, if you'd like.Yeah.

JUDITH MULCAHY: So, Peter, a final question for youaround the issue of confidential space.What are the risks, or what might the risks be for a child,if a counselor does hold onto some information for awhilerather than report it immediately?

PETER JENKINS: Yeah.I think this is a very serious question to raise.And the risk is clearly that a counselormay have information which is disclosed to themby a child or a young person.Because, I guess, as a therapist you are making,hopefully, an informed risk assessment as you

PETER JENKINS [continued]: are processing the client's material.And it may be that the threshold for reportingis lower for a child, who by definition ismore vulnerable than for a young person.But the risk is that the counselor

PETER JENKINS [continued]: decides to hold onto the information about the abusethat a young person is experiencing or risky behaviorthat they're involved in.And in order to protect the therapeutic alliance,they hold onto information which iscrucial to protect the child from further harmor to prevent further harm actually happening to them.

PETER JENKINS [continued]: It's a very difficult situation to be in.And I guess if I was wearing my social work hat,I would say that that is not a call that the counselors shouldbe making, that that information may well bethe missing bit of the jigsaw.As a counselor, our perspective is

PETER JENKINS [continued]: very much with the individual client.And what we're not attune to is the wider socialor neighborhood or community perspective,that what the child or young person is disclosingis about an alleged perpetrator whois abusing multiple children.And we know that abuse is often serial in nature.It's often not confined to an individual child in a family

PETER JENKINS [continued]: setting or in a community setting.So the risk is that the abuse is contained and is sealed over,if you like, and the child continuesto be in an abusive situation.However, the alternative is that,

PETER JENKINS [continued]: if the counselor passes the informationon without the child's active and willing consent,then there are risks of a different kind, whichare that the child is swept into a child protectionprocedure which they don't understand,which they don't agree with, perhaps,which may have uncertain outcomes.And at a certain point they simply retract the disclosure.

PETER JENKINS [continued]: I think we need to find a better way of doing this.That may sound a bit Utopian.But it's interesting that there is a very lively discussiongoing on within the safeguarding industry, if you like,if I can call it that, which is, I think,acknowledging the weaknesses of the current system, which

PETER JENKINS [continued]: is almost approaching that of mandatory reporting.Clearly, reporting child abuse is nota legal requirement in England or Wales or Scotland.There is an argument that it may bemandatory in Northern Ireland for veryspecific legal reasons.

JUDITH MULCAHY: And I suspect-- actually if I could juststop you there a moment, I suspectthat will come as news to quite a lot of people.

PETER JENKINS: Right.I mean, the legal situation, very briefly,is the obligation is on the local authorityto investigate under Section 47 of the Children Act of 1989.It's not been changed by the Children Act of 2004.What we have is a statutory systemfor reporting and investigating abuse.And, clearly, if people work in the statutory sector,

PETER JENKINS [continued]: they will be bound by the terms of working together--and the statutory guidance, and alsoby the contract of employment that they have.But there isn't, if you like, an overarching obligation on usas citizens to report abuse.I think people assume that there is,but maybe they are referring to the United States,where there is a broader system of mandatory reporting.

PETER JENKINS [continued]: Mandatory reporting is not necessarily the most effectiveway of trying to combat, eliminate--

JUDITH MULCAHY: Of protecting, in effect.

PETER JENKINS: Or of protecting children.And there's a very interesting discussiongoing on within safeguarding agencies,which is that, given the express needs of young peopleto have some kind of control or say overwhat happens to their disclosures,

PETER JENKINS [continued]: that perhaps what we need is an intermediary stage.So you have counseling where the young person discloses.And rather than move very quicklyinto the counselor reporting to the designated teacher-- theycontact the child protection team, children's social care,whatever.The investigation then unfolds, and the future of the therapy

PETER JENKINS [continued]: then becomes really quite uncertain at that point.The argument has been made in a number of different ways.There are cases reported in Australia,Canada-- there's the safe doctor schemein Belgium and the Netherlands-- and interestingly,there are examples of this at work in the UK,

PETER JENKINS [continued]: in Scotland, where you have a space wherea young person makes a disclosureand the therapist works with that.And it may be that the safeguarding agencies areinvolved but not with a view to launchinga full-scale investigation, that there

PETER JENKINS [continued]: is a process of discussion and negotiation basedon a very clear understanding that the young person'scommitment and active involvementis crucial to following this through into any kindof satisfactory conclusion.So, in a sense, you move from the therapy

PETER JENKINS [continued]: into-- it's still a boundaried space,but the outcome is not necessarilygoing to be a formal report to a safeguarding agency whichwould trigger an investigation.And the document, interestingly, is coming from the mostunexpected quarters.The NSPCC in their evidence to the Laming inquiry,

PETER JENKINS [continued]: the second report, was making exactly this case.It's surprising.

JUDITH MULCAHY: Very surprising.

PETER JENKINS: It's not a point of viewthat you would associate with the NSPCC.But they seem to have within this documenta very clear understanding that to movefrom a disclosure within therapy to an automatic reportingand investigation system is not necessarily the best outcome,even in terms of efficiency and effectiveness, let alone

PETER JENKINS [continued]: in terms of the impact on the young person,their relationship with the therapy and with the therapist.And I think this is a very promising area.Because we have a crisis within child protectionsafeguarding, and it's based on a legal system whichis adversarial.

PETER JENKINS [continued]: We have thresholds for reporting.Again, a recent report from the Children's Societyshows that for young people who disclose abusethat the response of the safeguarding agenciesis often very partial and is limited by their resources,by their perception of the risk.So it's not necessarily going to lead to positive outcomes,

PETER JENKINS [continued]: if you like, for the young personanyway that it needs to go through a whole seriesof process.I think this is acknowledging that thereare resource questions within all of this,and that in order to-- in my point of view, as therapiststo maintain and promote a reputationas a confidential service, the notion of therapy

PETER JENKINS [continued]: as a confidential space is something that we reallyneed to look at very seriously.

JUDITH MULCAHY: That sounds like a very interesting exploration.And certainly in terms of-- we were talking earlier aboutin the best interests of the child, thatseems to be at the heart of it rather than-- I'mpromoting during that holding time,promoting and enhancing the client's strengthto deal with what's likely to come next.It would seem like a very good idea.

PETER JENKINS: Yeah.I think it's interesting that this notion is not from,if you like, counselors outside the system who are saying,safeguarding is not working.But this is an internal critique.This is coming from social workersand safeguarding agencies in a number of different countries,where they're saying, our experience is

PETER JENKINS [continued]: to try to hold that space to explore the disclosure,to look at the options, to avoid moving very quicklyinto a procedure which is based on information-gathering,assessment, moving very quickly to a criminal prosecution,if that's one of the options, or moving to social services

PETER JENKINS [continued]: intervention.We need, if you'd like, to try to contain our own anxietyand to work with this and say, what are the options?What does the child want?What does the family need in this situation?What might be a better outcome in this particular situation?

JUDITH MULCAHY: That's really interesting.OK, Peter, we've looked at most of the general themes here.And I wonder if we could look at some specific examples now.

PETER JENKINS: OK.

JUDITH MULCAHY: We've got some sort of case scenarioswhich some of our counselors have put together for us, OK?And so I wonder if we could look at this first clip.

PETER JENKINS: Mm-hm.OK.

COUNSELOR 1: I have a 14-year-old clientat the moment, and he's sufferingfrom consistent very low moods after the lossof his brother to suicide.He's asked for my help in making an appointment with his GP,because he's very, very worried.He's hearing his brother's voice in his head all of the time.He doesn't want his parents to know about the appointment.

PETER JENKINS: A very, very challenging caseto work with as a therapist.And, I mean, what I take from thisis that there are potential risk indicators in termsof, perhaps, the young person developing symptoms whichmight need some kind of psychiatric intervention

PETER JENKINS [continued]: really beyond what a therapist could competently offer.I think this scenario raises a number of issuesabout accessing psychiatric services and the roleof the therapist within that.I mean, I suppose it does assume that the therapist who'sworking with the young person is sufficiently

PETER JENKINS [continued]: skilled and competent to be able to perceive that there are riskissues here, that this could be the beginningsof psychotic symptoms.I mean, I guess all of us hear voices in different ways.So it would involve a very sensitive exploration of that.But it's really for the therapist

PETER JENKINS [continued]: to begin to think, well, am I competent to work with this,what is the risk to the child or the young person,and how to, perhaps, help them to negotiatethe transition to more specialized forms of help.It's interesting that there's a report recentlyby Ian Kennedy on children within the National Health

PETER JENKINS [continued]: Service.And he makes a very strong case that children and young peopleshould be able to self-refer into CAMS.And, of course, what we have at the momentis very much a kind of gatekeeping system.So to access CAMS, really it needsto go through the GP or community mental healthteam or an appropriate source of that kind.

PETER JENKINS [continued]: And this, if that was available, if thatapplied within the local CAMS, that thismay be one way for the young personto be able to get confidential help.Because, again, I don't think it follows automaticallythat the parents would need to be informed.They may need to be informed at some stage,depending upon the nature of the risk.

PETER JENKINS [continued]: But the issue of being able to seek confidential treatment,being able to self-refer, those issuesapply as strongly within the mental health fieldas they do within the education system.

JUDITH MULCAHY: But I guess there's a practical elementto this as well.I mean, I've been in a situation where it referred onto CAMS.And the practical issue is that a young person generallycan't get themselves an appointment on their own,generally speaking.So there has to be some form of parental involvement.But I guess in this case the client mighthave been able to take himself.

PETER JENKINS: Well, I take pointabout the transport or being able to access the service.I mean, it would seem a pity that in principle, accessto a particular form of care would actuallydepend from something as practical as perhaps somenot being able to get a taxi or a bus fare or whatever.

PETER JENKINS [continued]: And that begs the question as to whether or notCAMS services could be sited in schools runningalongside the school counseling servicein order to facilitate this kind of self-referral.I mean, there is a wider debate in termsof what is the relationship between school counselingand CAMS.And I think the fear is that school counseling would

PETER JENKINS [continued]: actually lead to more referrals.And we know that CAMS really are quite strugglingwith provision, particularly for the age group around about 15,16, and that they, perhaps, would be concerned about beingoverloaded by referrals.But you could have a situation where as you have, perhaps,

PETER JENKINS [continued]: with a school nurse or where you could haveservices running alongside.

JUDITH MULCAHY: Alongside each other.

PETER JENKINS: And a school counselorcould refer or could assist the self-referral of a young personto see the mental health worker based in the schooland for that to be explored, again,without necessarily the parents being formed at that point.I'm not arguing that they would always be excluded.

JUDITH MULCAHY: But I guess most CAMS teams would have,at the moment as it currently stands,would have quite an issue with that.In my experience, they always insist on parental approval.

PETER JENKINS: Well, it's interesting.Again, going back to professional cultures,that within schools I think there'sa very limited understanding of the rights of childrento privacy and confidentiality as under the Gillick principle.Interestingly, within the mental health professional culturethere should be-- and I think broadly there

PETER JENKINS [continued]: is-- a very well-developed understandingof the rights of children and young peopleto confidentiality.So if you look, for example, at the Mental Health ActCode of Practice, I mean, there'ssomething like 21 different references to Gillickand a recognition that, if young people are seeking counselingwithin that service, that it's not automatic by any means

PETER JENKINS [continued]: that parents are informed about this.I think there is a lever to argue that CAMS could be basedwithin schools, they could offer this referral or assessment,if you like.And consistent with the policies within the Mental Health ActCode of Practice, that would need to be confidential.

JUDITH MULCAHY: Sounds like an interesting idea.Because what strikes me is that that'swhat often makes school counselingdifferent from any other type of therapeutic intervention.And it's something that can be readily accessed easilyby young people, as opposed to something that'ssited in a different place.

PETER JENKINS: Yeah.

JUDITH MULCAHY: So yeah.Interesting.

PETER JENKINS: I think that is the huge strength of the schoolcounseling.It's easily accessible.It's non-stigmatizing.It's free.And the vast majority of children and young peoplego to school, so they can access itwithout having to make special arrangementsor go to a particular agency or setting or whatever.

JUDITH MULCAHY: OK.Thank you.Now let's have a look at this next clip.

PETER JENKINS: OK.

COUNSELOR 2: I've got this 13-year-old disabled client whostarted seeing me for counselling without her parentsknowing anything about it.And she told me not to seek parental consentbecause she doesn't want her mother to worry.Now, at the last multi-agency meeting,which her parents do attend, the pastoral care manager

COUNSELOR 2 [continued]: from the client's school shared the factthat I am now working with this client.

PETER JENKINS: OK.I mean, again, I think it illustratesthe difference between professional culturesin that, as a therapist, one would be lookingto protect that confidential space in workingwith the 14-year-old.And the pastoral care manager is workingfrom a different framework, a different paradigm, if you

PETER JENKINS [continued]: like, which is an inclusive one, whichis about links with parents, a family-oriented service,and so on.So clearly what we have here is a breach of confidentiality.And for the young person, that may mean-- I mean, in one waythere may be some relief, I suppose,in that the issue, the fact that they're seeking counseling

PETER JENKINS [continued]: is now known to the parents.And maybe that can be explored in a different way.That would be a positive outcome.However, it may be that the young personis very aggrieved and understandably distressedthat what they held to be a private arrangement,a confidential counseling process,

PETER JENKINS [continued]: that confidentiality has been breached.I think the importance of confidentiality,the crucial necessity of therapy,to be seen to be confidential needsto be understood by other professions that work aroundit.And we have quite a job as counselors,

PETER JENKINS [continued]: I think, to get that message across.Because, on the one hand, schoolsare very keen to appreciate the benefits of counseling.I mean, all the research shows that it'sappreciated by young people.They value it and so on.But there are certain costs that go along with it.And I think--

JUDITH MULCAHY: They have to buy into it, almost.

PETER JENKINS: --respecting the therapeutic frameand respecting that counselors workto a different ethical framework.It's interesting.If you look at the code of ethics for teaches,it doesn't say a great deal about confidentiality.I remember, I think it was a general teachingcouncil from a few years ago, which

PETER JENKINS [continued]: may have been disbanded now.It said teachers respect confidentialityas is necessary.I mean, what more could you want?It says it all.Whereas you compare that to the extended discussionsabout confidentiality within the profession of counselingand psychotherapy.It's a very complex area.And other professions, I think if they want to work with us,

PETER JENKINS [continued]: they need to learn from us as muchas we need to learn from them.

JUDITH MULCAHY: Two things come up from that for me.One is around the question of privacy again.And I know that here in Wales thatwhat the situation generally is thereis a lead professional or a link professionaland a teacher-- and not necessarilya teacher but generally a teacher--and generally someone in managementas well in each school who acts as a link between the counselor

JUDITH MULCAHY [continued]: and the rest of the staff.

PETER JENKINS: Right.

JUDITH MULCAHY: And, again, in terms of privacy,it's very difficult for the schoolnot to know who is accessing counseling,because they have also in loco parentis responsibilityto know where those children are during the school day.So there is an element which privacy is not possibletotally.However, in this case, obviously, it'sbeen taken outside of those boundaries.

JUDITH MULCAHY [continued]: And the other thing that occurs to me around itis it's interesting that this particular child is disabled.because I think there is, again, a culturearound the rights of a disabled childnot being the same as the rights of any child.I don't know if you had anything to say about that.

PETER JENKINS: I hadn't commentedon that, partly because I hadn't seen a difference simplybecause the child has a disability--

JUDITH MULCAHY: Yeah.Others might see a difference.

PETER JENKINS: --that they would be in any way less entitledto confidentiality.I think unless the child has a learning disability whichwould impinge upon their level of understandingor communication or whatever-- the factthat this might be a child with spina bifida,or they may have visual impairment or whatever, I mean,

PETER JENKINS [continued]: that in no way impacts upon their entitlementto confidentiality.Just going back to what you were saying before, I mean,I think at an operational level schools will say,well, we need to know where children and young people are.And I think that again, that needsto be very carefully calibrated with the young person's

PETER JENKINS [continued]: entitlement to confidentiality within the counseling process.And it's a case of, well, who actuallyneeds to know that this young person is receiving counseling.And it's possible, I think, to build firewalls, if you like,around that very sensitive information.The argument of schools and teachers being in loco parentis

PETER JENKINS [continued]: is, I think, quite widely abused.If you want to look at what the law has to say about this,the concept of in loco parentis effectivelyended in 1991 when the Children Act of 1989 came into effect.And the duty on teachers is to take reasonable care.

PETER JENKINS [continued]: That's the standard.If it ever comes to litigation, then theyhave to act reasonably.I mean, I would've thought that there'sa very strong case in terms of even within safeguardingand child protection responsibilitiesthat maintaining high levels of confidentialityis taking reasonable care of children and young people.

JUDITH MULCAHY: Hmm.OK.And now let's have a look at this final clip.

PETER JENKINS: OK.Thanks.

COUNSELOR 3: The parent of one of my clientshas contacted the school because theywant to see their daughter's counseling notes.The head of the school has approached me,and I'm not so sure what to do.

PETER JENKINS: OK.I mean, again, it may be a situation wherethere is no conflict of interest between the childand the parents.And there may be very little materialin the counseling record which in any way would be problematicor which the child or counselor wouldfeel uneasy about disclosing.

PETER JENKINS [continued]: But I think we need to start from the recognitionthat the child's entitlement to confidentialityis our starting point.I mean, this is the foundation.And it may be that the child does notwant this material disclosed.Perhaps they're responding to a reconfiguration of family.I mean, perhaps sort of one parent has changed partners

PETER JENKINS [continued]: or there's been a loss in the familyand the child is grieving in a particular way,but others are grieving in different ways.And they don't particularly want that to be disclosed,because they're not ready for it or they haven't yetprocessed it fully enough.So with that acknowledgment that this

PETER JENKINS [continued]: is the child's material reflected in the counselingnotes, then even within the Data Protection Act,which is remarkably complex and byzantine in its detail,it is possible to refuse the parent access to the counselingmaterial if it's not in the child's interest.Although, technically, the parent has the right of access

PETER JENKINS [continued]: to the education record and the counseling recordis part of that, it would be possible to block that.Because, if you like, there's a conflictof interest between parent-- or potentiallya conflict of interest between parent and childhaving access to this.And, again, I think school personnel

PETER JENKINS [continued]: would need to understand why this might be so.The risk is otherwise, again, it'sseen as a peculiarity of counselingthat we do this very private, very secret workand we don't like to tell anyone about it,and it's all very mysterious and a bit precious.But I think that we understand, and other professions

PETER JENKINS [continued]: need to appreciate and, perhaps, arein the process of learning to appreciate,that it's because of the confidential nature of the workthat we do that we can do therapy.

JUDITH MULCAHY: That it's beneficial.

PETER JENKINS: And within that process,it's because of the high levels of confidentialitythat the disclosures are made.If you start to chip away at the confidentiality,you actually undermine the very basisof therapy in the first place.

JUDITH MULCAHY: And, of course, thinkingabout our Welsh context and the [INAUDIBLE] Report,that's exactly where it comes back to,the fact that those children have nowhere to goand weren't believed.So there has to be a space for that to happen.And that brings us neatly back to the beginning of schoolcounseling in Wales, actually.

PETER JENKINS: It is a very interesting point,and it may be a controversial response that I'm making.But, on the one hand, I think the [INAUDIBLE] Reporthas had a massively positive effect in that, I understand,8 million pounds has been invested in counselingin schools in Wales.It really is a beacon in terms of showing

PETER JENKINS [continued]: England what can be done.In proportionate terms, that wouldmean an investment of something like 60 million pounds spenton school counseling in England.And, of course, theirs is nowhere near that.And there's no prospect at the moment of government supportfor counseling in England anythinglike what has been done in Wales.

PETER JENKINS [continued]: But I do have a slight reservation, which is that,although out of the [INAUDIBLE] Report therewas this recommendation for setting upconfidential counseling within schools,it's very, very apparent that within Peter Clarke's reportthat this was to be done within the context of safeguarding.And I think that while in many ways that will be positive,

PETER JENKINS [continued]: I still would argue that there is an unresolved tensionbetween the nature of confidentiality being offeredto young people and this onus, this obligation to report.And I don't think that is resolved within the [INAUDIBLE]Report, because it was trying to respond

PETER JENKINS [continued]: to a very particular situation of abuseinvolving the teacher who is concerned.And it was an appropriate response.But I think there is a complexity here about howyou manage offering high levels of confidentiality,how you work with risk and risky behavior with young people,and how on occasion you report, as you must,

PETER JENKINS [continued]: to the safeguarding authorities.And I think that there is a lot more workthat we need to do to try and get this right.

JUDITH MULCAHY: And I think as well wemustn't lose site of the fact that--and I think as the strategy has been rolled out in Wales,it's been seen quite clearly that it's not just about--or have not just become a disclosure vehicleand that it's much more about the general emotional wellbeing and mental health of young people.

PETER JENKINS: Yes.

JUDITH MULCAHY: Because otherwise wecan look too much at the safeguarding issuesand see it only as a disclosing vehicle.

PETER JENKINS: I think it comes backto the original starting point, whenwe were talking about the concept of children's rights.And within the UN Convention, the rights are very important.They're admirable.But they're set within a welfare frame.And there's also provision for participation, whichis again extremely valuable.

PETER JENKINS [continued]: But the notion of autonomy, of the evolving capacitiesof the child, of this provision for confidentiality,is something which I think is slightly at odds with that,and it is not encompassed within the UN Convention.And, as counselors and therapists,I think that's what we need to keeppushing for to bring that to the attention of the agencies

PETER JENKINS [continued]: and policymakers.

JUDITH MULCAHY: Well, that seems to bring usto the end of our discussion, Peter.

PETER JENKINS: Thank you very much.

JUDITH MULCAHY: Thank you very much.[MUSIC PLAYING]

JUDITH MULCAHY [continued]: [MUSIC PLAYING]

SPEAKER: The School of Health and Social Sciencesat the University of Wales Newportis developing a wide range of videos and DVDs aimedat counselors, counseling trainers, their students,and at anyone interested in developing their useof communication skills.[BACKGROUND VOICES]

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