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Durham University

Learning and Teaching Handbook

2.8: Student Support - Confidentiality and Information Sharing

Introduction

1. This policy is intended to ensure that staff across the University who deal with confidential student support matters, are consistent in the way individual cases are handled. It also highlights sources of advice and guidance for questions that may arise in relation to confidentiality. The policy sets out what the University understands confidentiality in respect of student support to be and the limits of this. This policy is applicable across the institution in Academic Departments, Colleges and the Professional Support Services. For the purposes of this Policy, ‘staff’ includes all the Sabbatical Officers who are employed by the University.

The Legal Context

2. Durham University is committed to protecting the rights and freedoms of individuals in accordance with the provisions of the Data Protection Act 1998. The requirements to which University staff and students who process personal data must adhere are set out in the University’s Data Protection Policy sections 1-22. https://www.dur.ac.uk/resources/data.protection/12-12-04DataProtectionPolicyV1.2.pdf

3. The Equality Act 2010 states that it is unlawful for institutions to discriminate against disabled people in their selection and recruitment practices unless there is justification for such action. The law identifies a disabled person as ‘anyone with a physical or mental impairment, which has substantial and long-term adverse effect on their ability to carry out normal day-to-day activities’. Universities need to ensure that students are aware that information about their disability may need to be provided to others so as to meet their particular needs.

University Statement on Confidentiality in Student Support

4. The University is committed to supporting students and their academic progress and personal development. A respect for privacy means that the University is committed to providing a confidential service to students in order to protect their interests and ensure that a relationship of trust is built between staff and students. Information given by students to staff involved in their support will be treated with respect, sensitivity, care and discretion.

5. The University understands therefore, that confidentiality in student support means that students will often disclose confidential information to staff and there will be no requirement for the member of staff to share the information. Confidential information regarding a student will only be shared with another part of the University, or disclosed to any external agency or third party, on a ‘need to know’ basis. It is always best practice to seek a student’s prior, expressed consent to share information but where a student does not consent, a general duty of care means that the University must consider the impact that not sharing information will have on the safety and wellbeing of others, both within and outside of the University. Consequently there may be occasions on which information is shared about students on a ‘need to know’ basis notwithstanding a lack of consent from the student concerned (see paras 4.5 – 4.6 and 4.8 - 4.10 below).

6. The University respects the fact that students are independent learners and will not discuss any details of a student’s case with third parties (including parents and other family members), unless prior consent has been obtained from the student or it is in the vital interest of the student or others to do so. The University’s guidance for staff on responding to third party enquiries can be found here:

https://www.dur.ac.uk/resources/academic.office/ThirdPartyContactPolicyFinalVersionAgreedbySESCJanuary2014.pdf

Policy for Staff

Respect for Confidentiality

7. When discussing sensitive personal support issues with a student it is important to adhere to the principle that a general respect for privacy means that matters relating to the support of students must be treated as confidential.

8. Those advising students should at the outset of a discussion with a student, raise the issue of confidentiality. There are often good reasons why disclosing sensitive information to colleagues is in the best interests of the student, however this is not necessarily a reason to disclose it and it should only be released with the student’s consent.

9. Staff should discuss with the student when, in the best interests of the individual and the community, information should be shared with others. It is important to clarify the reason for the sharing of information, who may be informed and that this will be carried out on a ‘need to know’ basis. Agreement about who ‘needs to know’ should be reached with the student except in the circumstances set out in paragraph 4.7 below.

Seeking Consent

10. Those involved in supporting students should, where possible, gain consent from the student to share confidential information with others on a clear ‘need to know’ basis. Where consent is not given, the person entrusted with the information should inform the student that, in certain circumstances, it may be necessary to disclose this information to others. In such circumstances staff should make it clear that such disclosures are made on a ‘need to know’ basis only, preserving strict confidentiality in relation to any other third party. A student should also be made aware of situations in which the University employee has a legal obligation to disclose confidential information without the student’s consent.

11. In circumstances where staff have to pass on confidential information this should be done, where possible, with the student’s express written or verbal consent. A record of the student’s agreement should be kept. The record will often take the form of email correspondence, a signed filenote or a contemporaneous note of a discussion with a student. The record should capture facts, events and agreed actions. A copy should be kept in the appropriate departmental record-keeping system. Where a student’s express consent to share information is not given, staff should record the reason for that decision and ensure that a record is kept within the appropriate departmental record-keeping system.

Duty of Care

12. Notwithstanding specific legislation and the expectation of a student who provides information in confidence, the University must be aware that in certain circumstances the University may owe a duty of care to individuals that cannot be discharged unless the University takes action on information provided in confidence. It is not possible to provide an exact definition of the extent of such a duty of care. However, where information concerns potential harm to an individual or to others, the University must weigh the duty of confidentiality against that potential harm.

Occasions When Information May Be Shared

13. Because of the duty of care obligation, the University recognises that occasions may arise when information about students needs to be shared whether or not consent has been given. The circumstances where this may apply could include but is not limited to the following:

  • Where it is believed that someone is in danger, including:

- Where the student may be a danger to themselves or others. For example a student may indicate that they are having thoughts about harming themselves or others but request that the information is kept private.

- Where a third party may represent a danger to others. For example a student may disclose in counselling that they have been the subject of abuse from a family member as a child and it is known that person still has access to other children.

  • Where a student lacks the cognitive capacity to give informed consent. For example a student may be experiencing a period of mental ill health and is presenting as irrational and incoherent.
  • Where the University would be liable to civil or criminal proceedings if the information was not disclosed. For example, if a student admitted to being involved in criminal activity.
  • Where there is a child protection or vulnerable adult concern[1].
  • Where required by a court of law to provide information.

14. Staff are reminded that it is normally inappropriate to speak to a student’s family or other third parties without the student’s written permission. However, the University may, in order to protect the vital interests of the student or another person, contact third parties, such as medical professionals or next of kin, concerning the health of a student when it believes it is reasonable and/or in the best interests of the student to do so. Staff should attempt to gain the prior consent from the student to do so but where consent cannot or will not be given or where to request consent would place the student or other parties at greater risk, it might be necessary to act without consent.

Promises of Confidentiality

15. Given that there may be exceptional occasions when information about students has to be disclosed (see para 4.7 above), it is not reasonable to give absolute assurances of confidentiality to students who may wish to speak about their personal problems. It may be necessary to say that information may be shared with others who need to know it, if this is in the best interests of the individual and the community, and that this will be carried out with the utmost discretion and, wherever possible, with the consent of the student.

Disability[2] Disclosure

16. There is no statutory duty on a student to disclose a disability. However, the Equality Act places a duty on universities to take reasonable steps to find out a student’s disability and facilitate disclosure to ensure that reasonable adjustments are made within the university to prevent the university from discriminating against a student stemming from the student’s disability. The University ensures compliance with the Equality Act by encouraging students to disclose any disability they may have at the earliest possible opportunity. Once a student has disclosed a disability, the University has a responsibility to implement any adjustments it may need to ensure the student is not disadvantaged in their studies and therefore not discriminated against due to their disability. The University is therefore legally required to respond to any form of disclosure of disability.

17. The University is focused on encouraging early disclosures by students of any disability they may have to ensure that reasonable adjustments can be put in place by the University prior to the student’s arrival. While the majority of disability disclosures are most commonly done by students during the admissions process, some students do not disclose until after they are registered or are diagnosed post-entry. A student may disclose their disability to any University employee who is then deemed to have received the information on behalf of the University. Where this happens, University staff are required to refer the student to Disability Support who will liaise with the student regarding the documentary evidence required if reasonable adjustments are to be made (if the student is not already known to them). A student at all times will retain the right to choose not to disclose to the University any disability they may have. Where a student chooses not to disclose a disability it is more difficult for the University to comply with its legal obligations under the Equality Act which is why it is important that the University encourages students to disclose wherever possible.

18. When it is found that an adjustment has to be made by the University in light of a student’s disability it is standard practice for Disability Support to carry out a full assessment of the student’s needs. This assessment will require the sharing of information regarding their disability on a ‘need to know’ basis with appropriate University staff which may include Colleges, Academic Departments and the Estates and Building Department to ensure that support is put in place. The Equality Act makes it a legal obligation that for the purposes of such assessment, where the University does not have the necessary expertise to appropriately judge adjustments that may need to be made in light of a certain disability, it must consult with appropriate experts, such as medical professionals, appropriate charities or legal advisors to gain professional advice. The assessment identifies the nature of the disability and the action that may be required by University staff to ensure appropriate adjustments are made in accordance with the Equality Act and that adequate support for the student is put in place. This process ensures that relevant University staff are informed about the real difficulties faced by the student and the measures necessary to address those difficulties.

The Counselling Service

19. The Counselling Service is an accredited, organisational member of the British Association for Counselling and Psychotherapy and abides by its ethical framework for good practice. This means that confidentiality remains with staff with responsibilities for the Service and information will not normally be conveyed outside of the Service without permission. If there was an issue of risk for a student or a third party, the student’s consent would be sought before information was conveyed to others. If this consent was not given then a counsellor would consult with a senior member of the Service before a decision to break confidentiality was taken. Information sharing in this scenario would be minimised by restricting the information conveyed both to what is pertinent to the immediate situation and to those persons who can provide the help required by the client.

Seeking Advice

20. Staff to whom students have disclosed confidential information, or who have acquired information which they regard as confidential, may not always be sure whether they should disclose this information or not. In such circumstances it is sensible for staff to seek advice from an appropriate person on whether the matter is sufficiently important to breach confidentiality, and, if so, to whom they should report their concerns. This should be done without divulging the name of the student concerned. Am concern for confidentiality should not automatically prevent communication that is necessary to help students in difficulty.

21. Advice regarding student confidentiality can be received from:

The Deputy Head (Student Experience), Colleges Office;

The Head of the Counselling Service;

The Director of Disability Support;

The Deputy Academic Registrar.

22. Legal Support will be able to provide further guidance to these officers where necessary.



[1] The University has a Safeguarding Children Policy and a Safeguarding Adults at Risk Policy which should be used if there is a safeguarding issue.

[2] A student is disabled under the Equality Act 2010 if they have a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on their ability to do normal daily activities. ‘Substantial’ means more than trivial or minor for example it takes much longer than it usually would to complete a daily task such as getting dressed. ‘Long-term’ means 12 months or more.