Duty of Care and Confidentiality

A staff member is not required to disclose information about their mental health and if they do so, you have a duty as a manager or colleague, to treat that information in confidence. There are several reasons why a staff member may not disclose information about their mental health including:
 
  • Lack of awareness
  • Fear of being judged and treated differently by colleagues and management
  • Feeling as though it may impact on future promotions or other work opportunities
  • Fear of losing their job
  • A belief they are managing their mental health effectively and have adequate supports outside of their workplace to assist them in this management. (Deakin University)
 
On the other hand, according to the Australian Public Service Commission, disclosure is more likely when a staff member:
 
  • Is confident that what they say will be treated with respect and in confidence
  • Believes their manager and colleagues will support them and respond appropriately to their needs
  • Is confident that harassment and discrimination will not be tolerated by the organisation.
 
There are a couple of exceptions in relation to the duty of confidentiality. 

Consent

The first exception is when the staff member concerned gives consent for information about their mental health to be shared with others. For example, the staff member may agree to disclosure to colleagues as a way of supporting a reasonable work adjustment. 
 
Care needs to be applied to how this is done and there should be clear agreement about what is disclosed and why and any further duty of confidentiality. Usually a manager would obtain specialist assistance from their human resources partner to work through this situation.

Ensuring health and safety

The second instance arises because the legal duty of care to ensure the health and safety of the staff member or others in the workplace supersedes the duty of confidentiality. This situation can arise in the unlikely event that the staff member threatens to do harm to themselves or others in the workplace.
 
Even in these circumstances it is important to inform the staff member, if reasonably practicable, that information about their mental health will be disclosed to a third party and why the disclosure is being made. Assistance from the relevant human resources specialist is encouraged when dealing with this circumstance.