Confidentiality and the law

The right to confidentiality, apart from the lawyer-client relationship, will not survive a court order, writes ROD BROWN.

Specific questions have been raised regarding the confidentiality of the Employee Assistance Program (EAP).

The EAP provides teachers and other Department of Education and Training (DET) employees with access to qualified counsellors. This service, while funded by the employer, is intended to provide confidential support for those DET staff who wish to avail themselves of the service.

The concerns that have been raised by members arise from evidence provided by EAP counsellors in disputed workers compensation claims. Invariably this has been used to dispute the liability for a workers compensation claim in circumstances where the teacher has sustained a psychological injury.

As a result it has been claimed that confidentiality has been breached and that teachers should no longer use the EAP.

It is important that teachers recognise the possibility that information provided to another person may be used in court. This is irrespective of whether a confidential relationship exists between people. Other than the privileged nature of information that exists between a lawyer and client, any information will be accessible if a court issues a subpoena for such information. This applies to an EAP counsellor but equally applies to a treating doctor (including specialists), the DET or even Federation. If a subpoena is served for information, notes, documents, other relevant information or the attendance of a person at court then the terms of the subpoena must be met. The right to confidentiality, apart from the lawyer-client relationship, will not survive a court order.

It is obviously important that teachers are aware of this possibility and be conscious of what they tell others, even those in a position of trust. People should not deprive themselves of assistance in a time of need but remember that the force of the subpoena may apply.

Rod Brown is a Welfare Officer.

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