Effective Management Consulting
Are Management Consultations Truly Confidential?
By Jeffrey Harris, MFT, CEAP
Are management consultations between a manager/supervisor and an employee assistance professional protected as a confidential conversation in the eyes of the law? You may state that such discussions are confidential, but could you defend that assertion? The answer, like most topics dealing with law and ethics is, “probably.”
Consultations with management about how to best address the performance and behavior of troubled employees are a core service of all employee assistance programs. The outcomes of the management consultation usually include guidance on relevant supervisory skills, an understanding of the employee’s problem, and often conclude with a recommendation that the supervisor refer the employee to the EAP for his/her own counseling and support.
Clinical conversations between an employee (the client/patient) and the EAP counselor (the therapist) are universally recognized as protected by the state clinical license of the provider. The counselor cannot reveal confidential information without the express written consent of the holder of the privilege, in other words, the client. In fact, the EAP counselor refers to the employee as “the client,” and demonstrates actions that define meetings as a therapeutic relationship, such as:
* Seeking the client’s signature on a “consent for treatment” form;
* Obtaining the client’s signature on a “limits to confidentiality policy” form; some EAPs combine these points in a “Statement of Understanding”;
* Seeking the client’s signature on a “consent for release of information” (ROI), in which the therapist requests the coordination of care with an external provider, or report to the supervisor the participation of the client in the EAP;
* Conducting an assessment of the client’s needs; and
* Writing a psychosocial history based upon the assessment interview, and maintaining session notes in a clinical chart.
However, when it comes to a consultation with a supervisor/manager, none of those steps are commonly taken, and the supervisor is rarely referred to as a client. In practice, the counselor of course will act as if the conversation is confidential, by treating the information consultation as private and discreet.
Problem for an EAP
It is common practice within EAPs to use language in promotional materials and descriptions of the EAP to state that, “all services of the EAP are confidential.” My curiosity is whether the supervisor-counselor consultation is, indeed confidential, and if not, then is it misleading for the EAP to imply that the management consultation is protected as a confidential conversation?
I am not aware of this scenario having happened, but to test the concept of confidentiality of a management consultation, I submit the following hypothetical case:
Supervisor Jane is concerned about subordinate Bob’s conduct and job performance. Jane contacts the EAP and receives a helpful management consultation from Mary, an EAP counselor licensed in that state. Based on the consultation, Jane decides to place Bob on a progressive disciplinary action. She uses an initial written letter of warning for his inappropriate workplace conduct. Bob continues to display conduct problems that later escalate to a termination of employment.
Bob decides to retain legal counsel and sue the employer for wrongful termination of employment. He learns from the supervisor that she had sought advice from the EAP, and Bob’s attorney subpoenas Mary for her records, as he wants to reveal the content of the discussion between Mary and Jane.
Does Mary have grounds upon which to decline to appear in court, or deny access to her notes from the management consultation? As a counselor, can Mary state that the conversation with Jane is privileged communication and decline to testify without the consent from the privilege holder (supervisor Jane)?
Experts Weigh In
I interviewed two attorneys to gather their insights on this matter.
Sandra Nye – Nye, JD, MSW is an attorney, social worker, and author of the Employee Assistance Law Answer Book. She stated that client confidentiality “is described in statutes and case law. But I feel that laws relating to contracts are most relevant for recognizing that a management consultation upholds confidentiality requirements.” Sandra also recommended us to “look at the ethics of your professional society – when consulting, there is a broader interpretation restricting behavior” such as breaching private information [see below].
Nye states that the EAP consultant would have to appear in court if subpoenaed, but his/her first assertion is to invoke contract law by stating, “we had an agreement of confidentiality,” and then the judge would decide after hearing from attorneys for both sides.
Sandra went on to say that an assertion of confidentiality “is strengthened by having a signed Statement of Understanding as well as documented Policies and Procedures containing such language.” She agreed with me that proactively educating your host-company’s corporate counsel would be a wise move.
LaTasha Nickle – I also interviewed Nickle, JD, an attorney and Human Resources Director for the City of South Miami in Florida, previously a speaker at the South Florida EAPA chapter. In her role in HR, she did not have a situation in which confidentiality came into question. LaTasha did not believe that a consultant-manager discussion strictly met the guidelines for patient-therapist privilege. However, like Sandra, she felt that “setting clear expectations up-front with the manager, combined with clear documentation of policies, are the best approach.”
EAPA Code of Ethics
The insights provided by Nye and Nickle are enhanced further by EAPA’s Code of Ethics, Section 4.6, which states:
Employer confidentiality — EA professionals will earn and maintain the trust of the employer organization’s management. EA professionals will not disclose the content of any organizational, management or customer consultation to a third party without consent to do so by the party receiving the consultation.
The author invites readers to network about various effective management consulting topics through his LinkedIn profile, at www.LinkedIn.com/in/JeffHarrisCEAP, and Twitter at www.twitter.com/JeffHarrisCEAP.
Jeffrey Harris, MFT, CPC, CEAP has provided management consulting to a wide variety of organizations throughout his 20-year career in employee assistance, including corporate, government and union organizations. The author also has extensive experience as a manager and executive coach, from which he draws insight for his consulting. Jeff currently serves as Program Manager of EAP & WorkLife at the University of Southern California.