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Mental health advocates have been urging people to ‘seek help’ over the past few years and in response, workplaces have instituted mental health policies that range from access to counselors and psychologists to curated
As a number of working professionals are now opting for these services and openness to mental health conversations, it’s necessary to remind individuals that some employers who are on the bandwagon may not necessarily be compliant with confidentiality requirements.
Recently, it has emerged that Harvard university was obtaining the mental health notes of a student from her therapist, without her consent, and used it to discredit her complaint of sexual harassment against her professor. The trauma for which she had been seeking mental health help had in fact been triggered by the said harassment to begin with.
Investigations show this is a technique that Oxford University has also used to force students into suspension from course work. Both, North America and the UK, have strong laws that advocate doctor-patient and therapist-patient confidentiality that require releases to be signed if information is to be shared. In India, too, the Mental Healthcare Act 2007 confers absolute right to informed consent, patient confidentiality of all information obtained from a patient in the course of their treatment. Exceptions under the act are made to refer the patient to another mental healthcare professional, to protect the patient from self harm, to prevent threat to life, or by Supreme Court order and in public interest.
What this means in real time is that while you are encouraged to take a ‘mental health day’, note that by law you are not obliged in any way to disclose to your boss, supervisor or to Human Resources what the nature of that mental health need is or even that you have one. You are not obliged to inform a workplace of the details of your illness, diagnosis, or trauma. The workplace has no right to collect such information from you (on any forms you sign to apply for the leave, for instance). You do have the right to demand from the therapist, counselor or psychologist you will be consulting that they sign an NDA (non-disclosure agreement), especially if they are workplace appointed and referred. You also have the right to enquire how much of information collected during the course of a session or workshop, an assignment sheet or intervention exercise or any disclosure made in the spirit of sharing, would be shared with anyone in the workplace. You should also ask if the practitioner has agreed to share any sort of assessment or evaluation of the employee participating with the employer.
Even if the practitioner is going to make an evaluation, you as a patient have a right to access the resulting information or report and have to be informed before they release the information to your family or emergency contact or authorities (if it meets the exception criteria listed above). For instance, if you disclose to the consulting psychologist or therapist that you are queer during a workplace exercise, intervention or workshop, you have the absolute right to assume that the information has to remain confidential. You cannot be outed to an employer, colleagues or family without your express written permission. The same with any trauma or abuse you may be facing. You have the right to refuse to participate in any programme if it violates your mental health rights.
While efforts to destigmatise mental health are reaching a critical momentum, it is important to distinguish between what is an ignorant corporate exercise to gain bragging rights as a ‘woke’ workplace, and a sensitive and ethical implementation of individual mental health rights. As we become more open to people’s mental health needs, we also need to become aware of the ways in which an individual’s therapeutic process can be held against them or used to stigmatise them in the wrong hands. A workplace that attempts to use your application for mental health days, or disclosures made in confidence to a therapist to deny you promotions, raises, to stigmatise or marginalise you is acting in contravention of the Mental Health Act. Patient confidentiality is the cornerstone of any mental health programme or intervention, and you have the absolute right to demand it is protected.
How to protect your patient confidentiality in the workplace
- Before participating in any workplace mental health programme, ask what their confidentiality policy is.
- Ask the appointed or referred psychologist whether they have any agreement to share information with the employer.
- Ask if the consultant is willing to issue NDAs (non-disclosure agreements) for any information collected in the course of the programme. Most psychologists will offer you this.
- Refuse to fill out any workplace forms that demand personal diagnostic or therapeutic information when applying for ‘mental health days’ or referral programmes.
- Demand access to all and any mental health information, records or reports collected about you on company records under the Mental Health Act.
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